Introduction

The Ministry of Labour’s Employment Standards Program is responsible for enforcing and promoting the Employment Standards Act (“ESA”) in workplaces in Ontario. The ESA provides minimum standards for most employees in Ontario such as minimum wage, hours of work, public holidays, etc.

The program’s goal is to create a culture of compliance where knowledge of employment rights and responsibilities under the ESA is widespread, where employers comply with their employment responsibilities and where employees are comfortable asserting their rights at work. This would help to ensure that employees’ rights are protected under the ESA. It would also create a level playing field in which employers who follow the law are not put at a competitive disadvantage compared with employers who do not.

The Employment Standards (ES) Program’s Compliance Strategy is a comprehensive approach to creating a culture of compliance. It focuses on four areas of action:

  1. Awareness
  2. Proactive approaches
  3. Reactive approaches
  4. Enforcement

The Compliance Strategy outlines the ES Program’s approach to these four areas of action, why they are important, and how they work together to create and sustain a culture of compliance. This Strategy aims to increase transparency, accountability and consistency.

The strategy sets out the principles that the ES Program follows to promote and enforce the ESA in Ontario. Early resolution officers and employment standards officers (collectively called “officers”) in Ontario are required to follow these principles. The Compliance Strategy is consistent with the Regulator’s Code of Practice and falls within the scope of the ministry’s Professionalism in the Workplace standards.

The ES Program also promotes and enforces the Employment Protection for Foreign Nationals Act, 2009 in a similar manner to the strategy described in this document.

Awareness

The Ministry has long maintained that enforcement alone is not enough to achieve the ministry’s mission of protecting employees and creating a level playing field for employers. Increasing compliance also requires providing employers the information they need to operate in accordance with our employment standards legislation, and to do what is right for their employees.

The Education, Outreach & Partnership (EOP) strategy is a Ministry of Labour initiative designed to:

  • create an environment where employers and employees understand their rights and obligations under the ESA
  • increase employer awareness of responsibilities by providing them with resources and tools to help them comply with the ESA
  • encourage compliance with the ESA

EOP is a critical resource to engage our stakeholders regarding sector practices, labour concerns, as well as providing training and resources. Employers who are aware of their legal responsibilities, the consequences of violating the law, and employees who are aware of their rights are better positioned to identify and prevent violations from occurring in the first place.

Every year, the ES Program’s EOP Unit develops a strategic plan to guide its education, outreach and partnership efforts. Key objectives may vary from year-to-year, but the general focus tends to include:

  • developing and promoting innovative educational resources
  • aligning education initiatives with enforcement efforts
  • actively seeking partnerships with stakeholders

Educational resources

The ministry has a suite of online educational tools, videos and other resources to help employees and employers understand their rights and obligations.

The EOP Unit provides officers with hardcopy resources to distribute to employers and employees during workplace inspections to help promote awareness and understanding of employment standards.

The ministry often consults its stakeholder partners when developing educational resources to ensure they meet the needs of employers and employees.

Aligning education initiatives with enforcement efforts

The EOP Unit works closely with stakeholder groups to promote awareness of enforcement blitzes. The unit promotes resources to stakeholders in the industry sectors affected by the blitzes and publishes the results on the ministry’s website.

The EOP Unit also uses enforcement data (e.g., statistics on standards most frequently violated and sectors with the highest rate of violations) to shape the development of educational resources for the public.

Partnerships

The EOP Unit actively seeks partnerships with industry associations, advocacy groups and other ministries to promote awareness of employee and employer rights and obligations to create a culture of compliance.

One of the key ways that the ministry promotes available resources is through regular emails to its stakeholders, who collectively represent hundreds of thousands of businesses and employees in Ontario. The EOP Unit regularly shares information with these partners who in turn share the information with their members and clients.

Proactive approaches

The Ministry of Labour supports a culture of compliance through proactive inspections. A proactive approach is one in which the ministry takes strategic action to raise awareness of and enforce the standards in the ESA. Through proactive inspections, the ministry reaches a large number of employers and employees who may not be fully aware of their rights and obligations under employment standards law.

During an inspection, an employment standards officer visits an employer to ensure compliance with core employment standards such as wage statements, unauthorized deductions, record keeping and hours of work. The officer also educates the parties on their rights and obligations under the ESA, and provides tools and resources to help the employer with compliance. If officers determine the employer violated the ESA, they may consider the principles and purposes of enforcement, and take appropriate action.

The ES Program uses a risk-based approach to determine the scope of its proactive inspections. The program analyzes data and intelligence to determine which industries and sectors have the highest incidences of non-compliance, and which employment standards are most frequently violated. It then uses this analysis to develop targeted approaches that maximizes the impact of its proactive inspections.

Proactive inspections include provincial blitzes, compliance checks and re-inspections. Together, these different types of proactive inspections help the ES Program efficiently and effectively reach as many employers and employees as possible.

Provincial blitzes are province-wide inspections of workplaces in high-risk sectors and industries, which are identified using risk-based analyses. The ES Program publicly commits to a specified number of inspections as part of the provincial blitzes. In 2018-19, the ES Program will conduct one province-wide blitz focusing on the construction sector.

  • Blitz: Construction
    • Focus: Construction
    • Date range: May 1 – August 31, 2018

A Compliance Check is an online questionnaire to help small businesses and new employers determine if they are complying with certain non-monetary employment standards. Compliance checks are an efficient way for the ES Program to work with employers to promote compliance. By requesting that employers examine their own practices, these checks promote self-reliance and a comprehensive understanding of employment standards.

A Self-Audit requires employers to determine if they are complying with certain employment standards (both monetary and non-monetary) and then report the results of the self-audit to an employment standards officer. Unlike the Compliance Check, an officer can require that an employer conduct a self-audit. By requiring employers to examine their own practices, these self-audits promote self-reliance and a comprehensive understanding of employment standards.

Re-inspections of an employer’s workplace may occur at any time after an initial inspection. Through re-inspections, employment standards officers ensure employers are complying with the ESA and reinforce knowledge about their obligations. They also let employers know that their relationship with the ES Program is ongoing, and they should achieve full compliance.

Reactive approaches

The ES Program uses several reactive approaches for creating a culture of compliance. A reactive approach is one in which the ES Program responds to specific requests from individuals or organizations to take action.

Reactive approaches include:

  • claims investigations
  • expanded investigations
  • responding to tips

Together, these different types of reactive approaches are a practical way for the ES Program to enforce employment standards, recover money owed to employees and let employers know they will be held accountable for failing to comply with the ESA.

Claim investigations

Employees who believe their employer has not complied with employment standards can file a claim with the ministry for an officer to investigate.

During the investigation, officers educate the parties on their rights and obligations, and provide tools and resources to help the employer with compliance. If the officer determines the employer violated the ESA, they consider the facts and circumstances, and the principles of enforcement to take appropriate action.

Expanded investigations

The ES Program may also expand an investigation. During a claim investigation, if an employment standards officer believes that the violations found may affect other employees, the employment standards officer may conduct an inspection of the workplace.

Expanded investigations are effective; they identify more widespread violations within workplaces and recover more unpaid wages. They are also an efficient way of reaching greater numbers of employees who may not otherwise file a claim.

Responding to tips

The ES Program also responds to tips from the public on potential violations of employment standards legislation. The ES Program evaluates the tips and determines if an employer’s workplace should be inspected.

Enforcement

Enforcement is a critical component in creating and sustaining a culture of compliance which aims to motivate compliance and deter non-compliance. We do not use enforcement simply to punish for past violations; rather our primary objective is to foster future compliance.

The ministry enforces the ESA through the reactive investigation of claims and proactive inspections of workplaces. Under legislation, employment standards officers are able to conduct investigations and inspections, determine whether an employer violated the ESA, and issue compliance tools appropriate in the circumstances.

The Ministry’s employment standards enforcement philosophy centres on: restitution, specific deterrence and general deterrence.

  1. Restitution

    Restitution involves taking action to ensure that employees are paid what they are owed. An example of restitution is an officer issuing an order to pay wages to an employer who failed to pay their employee overtime pay.

  2. Specific deterrence

    Specific deterrence aims to prevent an employer or person who contravened employment standards from reoffending. Examples of specific deterrence include issuing a compliance order or a notice of contravention to an employer. This lets the employer know there are consequences for not complying with the ESA.

  3. General deterrence

    General deterrence aims to prevent employers and others from violating employment standards by making an example of an employer who contravened the ESA. An example of general deterrence is publishing the names of prosecuted employers. This lets other employers know that if they violate the ESA, they may be subject to similar penalties.

Principles

This section outlines the principles that govern the ES Program’s enforcement activities.

Officers are subject to the Regulator’s Code of Practice, which provides a set of organizational values, elements of professionalism, service principles and best practices to support compliance activities and to promote a consistent level of service excellence for Ontarians.

Transparency

Transparency means that employers, employees and other stakeholders know their rights and obligations under the law and how the ES Program enforces them.

In enforcing the ESA, officers provide clear and understandable information to parties about the law, how it applies to their situation, and how and why the officer came to the decision.

Accountability

Accountability means that the ES Program, including its officers, is held accountable for its decisions and actions. The ES Program is responsible for enforcing employment standards legislation competently, fairly and impartially.

Consistent enforcement

The Director of Employment Standards has the legal authority to create policies about the interpretation, administration and enforcement of the ESA, which officers must follow.

The ES Program has several methods for ensuring consistent enforcement:

  • Employment Standards Act Policy and Interpretation Manual provides a consistent interpretation of employment standards legislation
  • Administrative Manual for Employment Standards provides a consistent set of procedures that must be followed when enforcing the ESA
  • quality assurance and quality control help to review process to ensure employment standards officers follow program policies and procedures consistently
  • Guidance and support to officers by regional program coordinators and managers

Consistent enforcement does not mean that officers take the same enforcement action in every situation. Rather, it means that officers take a similar approach to enforcement in similar situations. In assessing which enforcement action to take, officers consider how similar situations were handled. Factors to consider include the contravention’s nature, seriousness, as well as the violator’s compliance and enforcement history.

Reasonable enforcement

Reasonable enforcement means that the ES Program follows the principles of administrative law, follows its own policies and procedures, and enforces the law in a manner that is not arbitrary or excessive. Reasonable enforcement is critical to the integrity of the ES Program and establishes trust and support for a culture of compliance.

Employment standards officers choose the enforcement action that is reasonable in the circumstances. A reasonable enforcement action is one that will achieve the goals of compliance with the ESA.

Compliance tools overview

This section describes the compliance tools available to employment standards officers. An officer may issue more than one compliance tool in the course of an investigation.

Officers consider:

  • the nature of the violation (e.g. was it monetary or non-monetary?)
  • the employer’s compliance history (e.g. were there any previous interactions with the ES Program? Were any compliance tools issued against the employer in those instances?)
  • any aggravating factors, for example:
    • severity of contravention
    • history or non-compliance
    • number of standards contravened
    • significant amounts owing
    • obstruction of officer
  • any mitigating factors, for example:
    • first-time violator
    • steps taken to achieve compliance
  • alternative measures will achieve general/specific deterrence

Based on these factors, officers have a number of options for enforcement activity.

In some instances, a compliance tool may also impose administrative costs of 10 per cent of the amount owing or $100, whichever is greater.

Order to pay the amount directly to the employee or foreign national

  • Officer issues an order to the employer to pay wages directly to the employee
  • Officer issues an order to temporary help agency to repay fees directly to the assignment employee or prospective assignment employee
  • Officer issues an order to employer to repay fees directly to foreign national
  • Officer issues an order to recruiter to repay costs directly to foreign national
  • No administrative costs apply
  • Found in:
    • ESA, s. 103(1)(a.1) and 74.14(1)(a.1)
    • EPFNA, ss. 24(2) and (3)

Order to pay the amount to the director of employment standards in trust

  • Officer issues an order to the employer to pay to the ministry’s Director of Employment Standards in trust unpaid wages
  • Officer issues an order to the temporary help agency to pay to the ministry’s Director of Employment Standards in trust fees charged to an assignment employee or prospective assignment employee
  • Officer issues an order to an employer to repay fees to the ministry’s Director of Employment Standards in trust
  • Officer issues an order to a recruiter to repay costs to the ministry’s Director of Employment Standards in trust
  • Administrative costs apply
  • Found in:
    • ESA, s. 103(1)(b) and 104(3)(a)
    • EPFNA, ss. 24(2) and (3)

Director’s order to pay

  • Officer issues an order to the director of a corporate employer to pay unpaid wages to the ministry’s Director of Employment Standards in trust
  • Officer issues an order to the director of a corporate employer to repay fees to the ministry’s Director of Employment Standards in trust
  • Officer issues an order to the director of a corporate recruiter to repay costs to the ministry’s Director of Employment Standards in trust
  • Administrative costs apply
  • Found in:
    • ESA, s. 106
    • EPFNA, ss. 24(7)

Order for compensation or reinstatement

  • Officer issues an order for the employer to:
    • Pay compensation to the employee for the employer’s reprisal against the employee
    • reinstate the employee who lost their job as a result of the employer’s reprisal against the employee, as appropriate
  • Officer issues an order for the employer or recruiter to:
    • Pay compensation to the foreign national for the reprisal
    • reinstate the foreign national who lost their job as a result of the reprisal, as appropriate
  • Administrative costs apply
  • Found in:
    • ESA, s. 104(3)(1)(a), s. 74.16 and s. 74.17
    • EPFNA, s. 24(4) and (5)

Notice of contravention

  • Officer issues an order for the employer to pay a financial penalty for contravention(s) of the law
  • No administrative costs apply
  • Found in:
    • ESA, s. 113
      • Amounts of penalties are set out in O. Reg. 289/01
    • EPFNA, s. 27
      • Amounts of penalties are set out in O. Reg. 47/10

Prosecutions under the Provincial Offences Act

Prosecution under Part I of the Provincial Offences Act (or “Tickets”)

  • Officer issues a ticket under Part I of the Provincial Offences Act for specific designated offences
  • Set fine of $295, plus victim fine surcharge and court costs
  • Found in:
    • POA, R.R.O. 950, schedules 4.1.1, 4.2, 4.3 and 4.4
    • ESA, s. 132
    • EPFNA, s. 41

Prosecution under Part III of the Provincial Offences Act

  • Officer commences a prosecution of a person under Part III of the Provincial Offences Act for contravening the ESA, EPFNA or regulations including:
    • making or keeping false records or other documents that must be kept under the ESA or EPFNA
    • providing false or misleading information under the ESA or EPFNA
    • failing to comply with an order, direction or other requirement under the ESA, EPFNA or regulations
  • If convicted:
    • an individual could be imprisoned for up to 12 months, fined up to $50,000, or both
      • a corporation can be fined up to:
        • $100,000 for the first conviction
        • $250,000 for the second conviction
        • $500,000 for third or more conviction
    • Found in:
      • ESA, s. 132, 136 and 137
      • EPFNA, s. 41

Summary

The goal of the Employment Standards program is simple, “ to protect the earnings of workers and ensure a fair and level playing field for all employers ”.

The ultimate goal of our Employment Standards Compliance Strategy is to inform employers and employees about our enforcement and outreach efforts, to promote a culture of compliance.