Thus far this report has demonstrated the limitations of Ontario’s ES and OHS enforcement regimes. The next step in developing appropriate policy recommendations involves considering practices outside Ontario.
A. Employment Standards Enforcement
The overarching critique of the ES enforcement regime herein relates to its reactive emphasis with limited use of proactive measures as well as complementary ‘softer’ measures focusing on voluntary compliance through self-regulation. Recall that proactive enforcement is an approach aimed at preventing violations, that is, in the first instance heavily reliant on inspections and expanded investigations when violations are detected. In turn, reactive enforcement is a strategy aimed at providing redress for workers dependent upon complaints to trigger regulatory intervention. Finally, voluntary compliance is a strategy of self-regulation involving largely education and promotion in the first instance and negotiated settlements when complaints arise.
Despite this critique of the reactive focus of ES enforcement, it is important to acknowledge that almost all regulatory regimes use a mix of hard law, soft law (e.g., employer awareness programs and self-regulatory techniques), economic incentives, worker participation, etc. and that this will continue to be the reality. The crucial question is how these strategies are best combined to improve the quality of enforcement (i.e., to maximize the effectiveness of investigations and inspections, penalties and settlements, and the voice of those affected): which ‘mixed’ models of enforcement have been found to be effective and which models have been found to be ineffective? Furthermore, what innovative community-based practices aimed at improved enforcement exist outside Ontario, including those in which workers’ advocates and unions play an active role in documenting and redressing violations?
This section addresses these questions by surveying the research literature and government reports covering best practices in ES in Australia, the United Kingdom, and the United States, as well as in other Canadian jurisdictions. It does so against the backdrop of problems identified with Ontario’s ES enforcement regime highlighted in earlier in this paper, in particular the four foremost concerns identified in the 2004 report of Ontario’s Auditor General (several of which were reiterated in its 2006 report): first, the limited number of proactive inspections undertaken by the Ministry despite its commitment to conduct them; second, the lack of extended investigations of substantiated claims to “cover other employees of the same employer to determine whether additional violations had taken place” ; third, the failure to prosecute many such repeat offending employers; and, fourth, the weaknesses in the collection of amounts in default owed to employee claimants by employers.
In identifying best practices, the analysis is also attentive to other limits of reactive ES enforcement regimes identified in the research literature pertinent to the Ontario case. Such shortcomings encompass, in the area of investigations and inspections, the outmoded nature of ES enforcement regimes with respect to the growth of subcontracting, specifically, the dearth of measures to address the dynamics of supply chains, especially enforcement in small firms operating at the bottom of these chains, the infeasibility of achieving comprehensive coverage within a geographically-focused inspectorate since it requires inspectors to cover an inordinate amount of ground,, the relative inattention to high-risk industries, the lack of offices of a workers’ advocate in most jurisdictions, and the limited interagency collaboration in sharing information pertinent to the detection of violations. In the area of penalties and settlements, deficiencies commonly identified include the tendency towards minimal penalties or sanctions; this shortcoming relates both to the relatively low level of settlements workers typically receive (i.e., settlements below those statutorily required as a consequence of the mediation process) and, in the case of Ontario, as elsewhere, to the fact that employers “benefit from ‘voluntary compliance’ [of this sort] … because it keeps their violation off the enforcement track,” meaning that they are unlikely subjects of extended investigations in instances where they might occur, nor are they required to pay fines and administrative fees accompanying orders issued. Finally, in the area of voice, countless studies point to the failure to provide for third party involvement in the enforcement process in most contexts, that is, from complaints procedures to investigative activities and settlements processes.
A range of best practices from other jurisdictions are noteworthy in responding to problems associated with a principally old style reactive regime. Consistent with the goal of cultivating an effective ‘mixed model’, in what follows these best practices are divided by those that are proactive, reactive, and voluntary.
1. Proactive Practices
The greatest number of promising initiatives for replication fall in the proactive grouping, most of which relate to investigations and inspections and to voice. Many such initiatives emanate from the United States, where a great deal of experimentation is taking place in the context of low rates of unionization, and Australia, a context in which workers have confronted decollectivization in the last few decades, partly via the centralization of industrial relations, and the import of a North American style enterprise bargaining, cultivating greater reliance on ES as the main source of protection.
(i) Investigations and Inspections
With regard to investigations and inspections, a growing body of literature points to the importance of targeting high-risk industries and within these industries structures at the top. Weil characterizes this strategy as critical to ‘strategic enforcement’ that applies four criteria to enforcement decisions – prioritization (i.e., choosing sectors carefully based on where intervention will have a high impact given factors such as the known level of violation and the vulnerability of the workers), deterrence (i.e., the threat of investigation), sustainability (i.e., the possibility of avoiding repeat offences), and system wide impacts – and he illustrates its effectiveness in several sectors characterized by large pyramidal structures (i.e., garment, fast food and hotels).
Responding partly to the impetus for change coming from Weil’s research findings, the Wages and Hours Division (WHD) of the U.S. Department of Labor began to embrace strategic enforcement in its activities under the Obama administration by ramping up inspections, increasing funding, and, most importantly, establishing a new plan/prevent/protect departmental orientation which it describes as follows:
“[b]ased on the principle that employers and others must “find and fix” violations – that is, assure compliance – before a DOL investigator arrives at the workplace. Employers and others in the Department’s regulated communities must understand that the burden is on them to obey the law, not the DOL to catch them violating the law. This principle is at the heart of this new DOL worker protection strategy. DOL is going to replace “catch me if you can” with Plan/Prevent/Protect.”
Through this strategy, the DOL is targeting “fissured industries” in which “employment decisions have been devolved from major employers to a complex network of smaller employers… typically operat[ing] in more competitive markets,” specifically the hospitality, janitorial, construction, and agricultural sectors, for large enforcement sweeps as well as educative campaigns.
For example, in 2011, the Department initiated an enforcement sweep focusing on the bottom of the fissured pyramid of production in the agricultural industry, beginning in South Florida and continuing up the Eastern Coast of the U.S., to increase compliance and inform workers of their rights under the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), the Fair Labor Standards Act (FSLA), and the Occupational Safety and Health Act’s Field Sanitation Standard. Under this initiative, by June, it had conducted over 20 investigations, recovered $670,770 in back wages for approximately 600 agricultural workers, and assessed over $128,850 in penalties, finding violations such as “paying workers less than the federal minimum wage, and paying workers at packing sheds who did not qualify for the FLSA’s agricultural exemption ‘straight time’ for all hours worked, rather than time and one-half their regular rates of pay for overtime work hours as required.” This sweep involved sending teams of investigators to fields and packing houses to assess compliance by “facility owners, growers, farm labor contractors and all other business entities associated with these agricultural operations. Thorough inspections of transportation, field sanitation facilities, employment practices and pay records [were] conducted to ensure compliance with all applicable child labor and agricultural labor standards.” Additionally, the Department undertook surveillance activities involving interviewing workers at key sites, with numerous investigators covering large geographies on the same day and involving departmental lawyers early in preparing cases for future litigation.
On a smaller scale, there are jurisdictions in Canada beyond Ontario that report conducting proactive inspections. It is questionable as to whether they are of the calibre of best practices, as there is little evidence of either an industry or a geographic focus in any. For example, although they give complete discretion to the Director over the enforcement programs insofar as their implementation, Manitoba (S. 123 (1)) initiates proactive inspections against certain employers and New Brunswick (S. 58 (1)) conducts audits at random. Newfoundland and Labrador’s Labour Standards Act also includes powers of entry and inspection (S. 64) and engages in what it calls “preventative intervention,” where ESOs visit workplaces to meet informally with employers and employees to discuss their rights and responsibilities under provincial legislation These visits may be random or target certain employers or industries where non-compliance is evident.
More innovative in their form, legislative measures introducing a ‘positive duty’ for employers to prevent illegal workplace practices are also emerging elsewhere. At present, positive duty provisions are most developed in anti-discrimination law in contexts such as the United Kingdom. However, scholars such as Linda Dickens argue that this notion could be used to improve ES enforcement. Taking such suggestions forward, positive duty provisions are also the main feature of the new model national OHS Bill scheduled to come into effect in Australia (in January 2012), and they require more out of employers in terms of due diligence in health and safety matters than in the past; specifically, these preventative measures hold employers more rigorously accountable for preventing violations (i.e., for compliance). Notably, the Australian model law also has a wide definition of employers, which includes “officer[s]” of “person[s] conducting …business[s] or undertaking[s],” encompassing a broader range of individuals exercising influence in shaping workplace terms and conditions – individuals in various locations in the sub-contracting chain, etc. – rather than an employer-employee relationship, narrowly defined. In its attempt to respond to fissures in employment structure and industries, this model national OHS Bill’