Tuesday, April 25, 2017

Employment Standards changes for vulnerable workers

Over the past year, my colleague Jason Foster and I have been working with an informal group comprising people and organizations knowledgeable about the experiences of migrant workers in Alberta. The purpose of this group was to suggest changes to Employment Standards legislation and policy to ensure it worked better for migrant workers. The group's submission to Alberta's Employment Standards Review is below.

-- Bob Barnetson

Recommendations for Changes to Alberta’s Employment Standards Code

Submitted by the Employment Standards Working Group

The Employment Standards Working Group was created in early 2016 by a group of community advocates out of a desire to address problems with the existing Employment Standards Code for especially vulnerable workers in Alberta. With the government looking to review key pieces of legislation and policies that cover working people, it was felt that there may be an opportunity to have some input into legislation and policies that directly affect especially vulnerable workers.

The group is made up of a cross section of concerned people that provide support to vulnerable workers, and other social justice advocates.

Our submission focuses on areas that impact workers with precarious immigration status (e.g., temporary foreign workers, live-in caregivers, seasonal agricultural workers) who are particularly vulnerable to employer pressure. These workers will almost never file an Employment Standards complaint because they fear their employer will terminate their employment and, thereby, their ability to remain in the country.

While the recommendations in this report are specific to the needs of workers with precarious immigration status, we believe they apply to vulnerable workers more broadly, for example, adolescents and young workers, immigrant or refugee workers, workers with disabilities, or seniors.

This submission to the Government of Alberta Employment Standards Code Review is made on behalf of the Working Group members and other concerned citizens. The submission is made on behalf of the following individuals and organizations:

Marco Luciano
Migrante Alberta

Bob Barnetson
Professor, Athabasca University

Jared Matsunaga-Turnbull
Alberta Workers’ Health Centre

Jason Foster
Assistant Professor, Athabasca University

Clarizze Truscott
Kabisig Society of Fort Saskatchewan

Gemalil Biscocho
Edmonton Immigrant Services Association

Calgary Social Workers for Social Justice 

Ethno-Cultural Council of Calgary

Multicultural Health Brokers Cooperative (Edmonton)
Public Interest Alberta

Renters’ Action Movement (Calgary)

The Fight for $15

Women Together Ending Poverty

Workers’ Resource Centre (Calgary)

Sara Dorow
Associate Professor, University of Alberta

Tracy L. Friedel (Nehiyaw-M├ętis)
Associate Professor, University of British Columbia

Karen Hughes
Professor, University of Alberta

Phil E. Okeke-Ihejirika
Professor, University of Alberta

Bukola (Oladunni) Salami
Assistant Professor, University of Alberta

Dr. Alison Taylor
Associate Professor, University of British Columbia

Overview
The purpose of Alberta’s Employment Standards Code is to establish and enforce the minimum terms and conditions of employment that are acceptable in Alberta. This legislative floor of rights plays an important role in ensuring work is fair and safe by establishing (for example) a minimum wage, maximum hours of work, and mandatory rest breaks.

The floor of rights is particularly important for workers with precarious immigration status. Workers without citizenship or landed immigrant status—such as live-in care givers, temporary foreign workers, and seasonal agricultural workers—are often dependent upon their employers for their rights to work and to remain in Canada.

Current immigration policy makes workers with precarious immigration status particularly vulnerable to employers seeking to minimize their labour costs. Data on Employment Standards violations is elusive but, in 2010, a review of 325 inspections of employers employing temporary foreign workers found 74% of employers were violating Alberta’s laws (CBC, 2010)

Issues and Recommendations
The high level of exploitation faced by workers with precarious immigration status raises several issues that are outlined below with specific policy recommendations.
  1. Complaint-based enforcement is not effective. Increase enforcement and target industries employing workers with precarious citizenship status. 
  2. Recovery period for unpaid wages is too short. Extend the period from 6 months to 2 years and, when an employee is still employed, fix the crystallization date of the period on the date of complaint. 
  3. Disguised Employment Relationships. Amend the ESC to empower enforcement officers to make determinations of whether a worker is an employee, using legal standards established by the courts and to automatically extend employment standards rights to workers defined as “dependent contractors. 
  4. Exceptions disadvantage workers with precarious immigration status. Eliminate the Employment Standards exceptions for domestic workers and migrant caregivers. 
  5. Minimum wage is not a Living Wage. Increase the minimum wage to $15/hour within 12 months with additional increases each year until the minimum wage equals a level of a living wage. 
  6. Appeal processes disadvantage migrant workers. All appeals should be via a common and expedited process. Officers (not employers or employees) should be responsible for defending the officer’s original order during the appeal process. 
  7. Personal Leave. Provide all workers with 10 days of paid, job-protected family responsibility leave. 
Issue 1: Complaint-based enforcement is ineffective

Alberta relies heavily upon worker complaints to identify employer noncompliance with Employment Standards Code. Workers—particularly workers with precarious employment and/or legal status—are unlikely to complain due to fear of retribution and unfamiliarity with the system. Consequently, there is widespread noncompliance with the Employment Standards Code that goes un-investigated.

Recommendation

Increase resources to enforcement to allow the following:

1. Hire more Employment Standards officers.

2. Expand Employment Standards officer training to include education in human trafficking, as some workers who are vulnerable to Employment Standards violations may additionally be victims of human labour trafficking.

3. Mandate biannual inspections of all Alberta employers employing workers under the live-in caregiver, temporary foreign worker, and seasonal agricultural program.

4. Empower Employment Standards officers to notify Immigration Canada when violations of the Employment Standards Code or the workers’ contract is discovered, as long as the notification does not put the workers’ residency at risk.

5. Expand pro-active inspections (i.e., inspections not triggered by complaint) targeting industries known to employ significant numbers of workers employed under International Mobility Programs.

6. Eliminate the requirement for workers to have sought to resolve the matter with their employer through the complaint process.

7. Enhance and apply penalties for employer non-compliance.

8. Enhance and apply penalties for employer retaliation.

Background

The Employment Standards Code outlines a minimum set of terms and conditions of employment in Alberta. The Code gives Employment Standards staff the ability to inspect employers to ensure compliance. Where employers are found to be noncompliant, the Code allows Employment Standards staff to issue orders and seek the prosecution of violators. Enforcement activity can also be triggered by complaints (typically from workers).

There were 4728 Employment Standards complaints filed in 2014/15 and 5165 investigations completed. Although a provincial investigations team was established to focus on proactive inspections, enforcement of Alberta’s Employment Standards continues to operate largely on the basis of worker complaints (Alberta Jobs, Skills, Training and Labour, 2015).

Rationale

Complaint-based enforcement of employment laws is widely regarded as an ineffective compliance strategy. Fear of (illegal) employer retribution and concerns about the efficacy of complaints means relatively few workers complain about Employment Standards violations and most of these complaints are made by workers after they have left their employment (Thomas, 2009; Arthurs, 2006; Weil and Pyles, 2005; Ontario, 2004). The result of this dynamic is a culture of noncompliance, wherein workers complain less even as violations increase (Weil, 2012).

Anecdotal evidence drawn from a cross-section of groups that provide support to workers with precarious immigration status (e.g., temporary foreign workers, live-in caregivers, seasonal agricultural workers) shows that they are particularly vulnerable to employer pressure. These workers will almost never file an Employment Standards complaint because they fear their employer will terminate their employment and, thereby, their ability to remain in the country.

A significant increase in inspection activity is required to incentivize employers to comply with Alberta’s employment standards. Periodic and random inspections of employers who have hired workers under federal labour mobility programs as well as targeting employers in industries known to hire large numbers of workers through international mobility programs would effectively utilize enforcement resources to ensure the protection of these vulnerable workers.

Under current legislation, employers who have hired through federal labour mobility programs can lose access to these workers for non-compliance with the Employment Standards Code. Consequently, empowering Employment Standards officers to provide the federal government with the results of workplace inspections would create a further incentive for employers to comply with both the Employment Standard Code and the contract that the employer signed with the worker.

At present, employers face no meaningful penalty should they be found to have contravened the Employment Standards Code. Instead, the Employment Standards officers seek simply financial restitution. The absence of penalties when employers shortchange workers means non-compliance entails no risk. Enacting penalties for non-compliance (and for retaliation in the event of a complaint) should reduce the willingness of employers to violate the Employment Standards Code.

Issue 2: Recovery period for wages is too short

Employees can only recover six months of unpaid wages and overtime. Further, this six-month recovery period is routinely shortened for employees still employed by the employer by the amount of time required to complete an investigation.

Recommendation

Section 90 of the Employment Standard Code be amended to:

(1) extend the period of time that an order can encompass to two years; and

(2) have complaints by presently employed employees crystallize on the date the complaint was filed.

Background

When an Employment Standards officer determines that an employee is owed wages or overtime pay, s.90(4) of the Employment Standards Code allows the officer to issue an order directing an employer to pay the wages owed. The Code limits the order to wages that should have been paid in the six months prior to the order (or the employee’s termination date). This limitation has two effects.

First, employees who have been shorted wages for a period of greater than six months cannot recover such wages through an Employment Standards complaint. Presumably, the policy rationale is that employees should be aware of and act upon under-payment of wages. Many employees—particularly those with precarious immigration status—will be unwilling to risk filing a complaint until after the employment relationship has been terminated because they fear employer retaliation, or may be unaware of the limitations. In these circumstances, the six-month timeline on orders deprives workers of wages they are owed.

Second, for employees who do file a claim while still employed, the six-month period crystallizes on the date the order was issued. The order can only be issued after the officer has completed an investigation. What this means is that employers can reduce the amount of wages owed by stalling the investigation and thereby delaying the issuance of the order. Further, any significant increase in complaints (i.e., officers’ workload) occurs, the resultant delay in issuing orders reduces the amount of owed that can be recovered.

Rationale

The Employment Standards Code is designed to create a floor of rights and a low-cost process by which employees can access those rights. Limiting the period of wage recovery to six months (or less, in many cases) undermines the basic public policy objective of the Code. While it might be argued that employees ought not sit on their rights, at present, fear of employer retaliation means that workers are unlikely to make a complaint.

Extending the period of time that employees can collect owed wages and (for workers still employed) fixing the crystallization date of that period on the date the complaint was filed on would improve the ability of workers to recover owed wages.

Issue 3: Disguised Employment Relationships

Some employers are pressuring workers to agree to operate as independent contractors even though the relationship is that of an employee. Upon conversion to independent contractors, workers have significantly less access to employment and other social rights and are excluded from the Employment Standards Code. This employment status places the worker in a more vulnerable and precarious situation.

Recommendation

Amend the Employment Standards Code to:

1. empower enforcement officers to make determinations of whether a worker is an Employee, using legal standards established by the courts.

2. automatically extend Employment Standards rights to workers defined as “Dependent contractors” under law.

Background

The legal relationship between employer and employee has significant ramifications for the employment rights an employee possesses. Employees have a wider range of rights, including coverage under the ESC and legal rights under common law (e.g., right to sue for wrongful dismissal) than do Independent contractors. Independent contractors possess none of these rights as the relationship is seen as a contract between equals. In Canadian law, the concept of a Dependent contractor has evolved to recognize contractor relationships where the worker (Dependent contractor) is highly dependent upon the employer for their livelihood. Dependent contractors possess some rights under common law (termination rights) but are not covered by the Employment Standards Code.

These statuses have been clearly defined and the courts have established criteria for determining which is appropriate. Some of those criteria include control of work process and hours of work, ownership of tools and possession of financial risk. Despite the legal clarity, many employers attempt to designate employees as Independent contractors to reduce the employer’s legal and financial obligations. While all workers are vulnerable to this misuse of employment status, workers with precarious immigration status are particularly at risk of such maneuvers.

Rationale

Classifying a worker as an Independent contractor excludes them from the Employment Standards Code, essentially taking away the floor of rights that are intended to apply to all workers. They lose common law rights, such as protection from unfair dismissal. They are also ineligible for WCB, EI and other social benefits tied to employment status. The inappropriate classification as a Dependent or Independent contractor has direct and significant consequences for the worker. Workers with precarious immigration status report being pressured by employers to accept contractor rather than employee status. It is difficult for them to refuse such pressure due to fears of losing employment and risking their residency in Canada. As a result many are working under formal arrangements that create increased insecurity and vulnerability.

Issue 4: Exceptions disadvantage workers with precarious employment status

As domestic workers, workers falling under the Federal Live-In Caregiver program (formerly the Live-In Caregiver program) are excluded from Employment Standards outlining overtime and maximum hours of work. They also are exempt from minimum wage criteria due to allowable deductions. Combined with precarious immigration status and potential social isolation, these exclusions make Live-In Caregivers significantly vulnerable to employer exploitation.

Recommendation

Eliminate the Employment Standards exceptions for domestic workers and migrant caregivers.

Background

Section 6 of the Employment Standards Regulation exempts employees performing domestic work in a private dwelling from Part 2 (Divisions 3 and 4) of the Code, excepting ss.18-19. Practically, what this means is that domestic employees are not eligible to be compensated for overtime and there are no maximum hours of work (although rest period and days of rest requirements apply).

Section 9 of the Regulation sets a monthly minimum pay of $2127 for employees who lives or lives primarily in the employer’s home. Employers are also entitled to make specified deductions for room and board, including deductions that reduce a domestic employee’s wage below the minimum wage. These exceptions to Employment Standards significantly affect workers who work in Canada under the Live-in Caregiver program.





Rationale

The absence or reduction of Employment Standards rights around hours of work, overtime, and the minimum wage negatively affect workers in the Live-In Caregiver program. Combined with social isolation and the workers’ precarious citizenship status, these exceptions make workers in this program vulnerable to exploitation.

The purpose of Employment Standards is to create a floor of rights. Creating exceptions that negatively affect workers who are already vulnerable due to their precarious citizenship status undermines this purpose. There are also knock-on effects of the exclusion: the lack of official overtime slows the rate at which Live-in Caregivers qualify to become permanent residents.

Issue 5: Minimum Wage is not a Living Wage

The existing minimum wage is inadequate to ensure all workers are able to support themselves and their families. The Alberta Government has committed to increasing the minimum wage to $15/hour by October 2018. The delay in increasing the minimum wage to the level of a living wage means low-wage workers are still unable to make ends meet properly. Workers with precarious citizenship are more likely to work in occupations that earn less than that rate.

Recommendation

Increase the minimum wage to $15/hour within 12 months and additional increases each year until the minimum wage equals a level of a living wage for all Alberta workers.

Background

Alberta’s minimum wage is currently $12.20 per hour. While this is third highest in the country, it falls significantly below levels required to ensure a living wage for all workers. It is estimated that a living wage in Alberta ranges from about $13/hour in some smaller centres to $17.36 in Edmonton and $18.15 in Calgary (Living Wage Canada 2016).

The promised $15/hour minimum wage will still leave the majority of low wage workers in Alberta below a living wage. Further, the three-year phase-in period means the minimum wage will not address cost of living increases between now and October 2018. The Living Wage has been found to be an effective tool for reducing poverty and inequality.

Rationale

Workers with precarious citizenship are more likely than other Albertans to earn below a living wage, as they are frequently found in low income occupations in the retail, hospitality and caregiving sectors. These workers often find it difficult to make ends meet. A minimum wage that ensures all workers achieve a living wage will reduce poverty and increase financial independence of workers.

Issue 6: Appeal processes disadvantage migrant workers

Employers can sometimes avoid paying owed entitlements by delaying an appeal until employees with precarious immigration status are required to leave the country and, therefore, are unavailable to participate in the appeal.

Recommendation

All appeals should be via a common and expedited process. Officers (not employers or employees) should be responsible for defending the officer’s original order during the appeal process and employees should have the right to designate an advocate on their behalf.

Background

Sections 88 and 95 of the Employment Standards Code allow employees and employers (respectively) to appeal decisions of Employment Standards officers. Employers and employees have different appeal paths, with employee appeals being a paper-based process managed by a reviewing officer and the employer appeals being an in-person hearing in front of an umpire (typically a provincial court judge).

Employers of employees with precarious immigration status may delay the hearing of an appeal until an employee has returned to the employee’s home country. When the employee fails to appear to substantiate the employee’s original complaint, the employer’s appeal may be upheld.

Although s.99 of the Code allows for attendance through video conferences, such arrangements are uncommon and, for employees who have left the country, may be unavailable.

Rationale

Employees should not be denied owed entitlements simply because they are compelled to leave the country during the appeal period. The current system denies fair and due process to workers with precarious citizenship and arbitrarily disadvantages them in the process.

Issue 7: Personal leave

Alberta provides no job-protected, paid leave for workers to deal with family responsibilities, such as short-term illness and medical appointments.

Recommendation

Alberta employment legislation provides that all workers have 10 days of paid, job-protected family responsibility leave.

Background

Alberta does not provide workers with paid statutory leave to deal with short-term personal or family illness or other emergencies. Ontario provides employees who work for firms with at least 50 employees up to 10 days per year of paid personal emergency leave to cope with personal or family illness or medical emergencies. Employees are left to negotiate such leaves on an as-needed basis with employers.

Employees with precarious immigration status are less likely than other employees to be successful in such a negotiation because of concern about employer retaliation. While denying an employee sick leave might result in the employee filing a human rights complaint, such a remedy is delayed and (as noted above) likely unavailable for employees for whom termination means leaving the country.

Rationale

Employees sometimes require time away from work to address family responsibilities. At present, employees must negotiate such leaves with their employers, which result in uneven (and possibly no) access to such leaves.

Sources

Alberta. (1997). Employment Standards Regulation. Alberta Regulation 14/1997. Edmonton: Queen’s Printer.

Alberta. (2000). Employment Standards Code. RSA 2000, c.E-9. Edmonton: Queen’s Printer.

Alberta Jobs, Skills, Training and Labour. (2015). Annual Report 2014-15. Edmonton: Author. https://work.alberta.ca/documents/2014-15-JSTL-annual-report.pdf

Arthurs, Harrry. 2006. Fairness at Work: Federal Labour Standards for the 21st Century. Ottawa: Labour Standards Review Commission.

CBC. (2010, March 17). Temporary foreign workers treated poorly, NDP charges. http://www.cbc.ca/news/canada/edmonton/temporary-foreign-workers-treated-poorly-ndp-charges-1.920847

Ontario. 2004. Annual Report of the Auditor General. Toronto, Auditor General.

Thomas, Mark. 2009. Regulating Flexibility: The Political Economy of Employment Standards. Montreal: McGill-Queen’s University Press.

Weil, David 2012. “’Broken windows,’ vulnerable workers and the future of worker representation. The Forum: Labour in American Politics, 10 (1), Article 9.

Weil, David and Amanda Pyles. 2005. “Why Complain? Complaints, Compliance and the Problem of Enforcement in the US Workplace.” Comparative Labor Law & Policy Journal, 27 (1), 59-92.

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