A week or so ago, the government
announced it would be soliciting feedback on the Employment Standards Code. You can
fill-in a survey or make a written submission. Below is the submission I made to Minister of Jobs, Skills, Training and Labour Thomas Lukaszuk:
7 March 2014
Minister Lukaszuk:
Thank you for the opportunity to provide feedback on
Alberta’s Employment Standards Code.
Enforcement
While this review appears to centre on legislative change,
the most pressing issue in contemporary employment standards is the enforcement
(or, more accurately, the non-enforcement) of these standards. Alberta relies
primarily on complaints to trigger enforcement. Unfortunately, it is widely
accepted that complaint-driven enforcement reveals only a minority of violations (Thomas 2009, Arthurs 2006, Ontario
2004, Adams 1987).
There are a number
of reasons for the ineffectiveness of complaint-based enforcement. Workers may
choose not to complain based on fear of employment repercussions, ignorance, a
lack of self-efficacy, and/or the belief that there is little hope of effective
remedy (Weil and Pyles 2005). The effect of relying on complaint-based
enforcement is that is creates a culture of noncompliance, wherein workers will
complain less even as violations increase (Weil 2012).
It is difficult to know
the true rate of employer non-compliance in Alberta because your department
does a poor job of reporting employment standards statistics. Where there is
data available (typically from opposition party FOIP requests) it shows a high
degree of non-compliance. For example, March 2009 data about (the seemingly now
defunct) targeted inspections of employers employing temporary foreign workers
found 56% of employers in 363 workplaces were in contravention of the Code.
Over $1.3m in unpaid wages were returned to these workers (Alberta 2009).
January 2010 data on 325 inspections shows non-compliance to be at an
astounding 74% (Alberta 2010).
Clearly there is a
widespread problem with non-compliance. While you have previous characterizes
this data as a “really good news story” (CBC 2010), presumably because it
suggests that some workers do complain, if you actually look at your data, you
will note that only a minority of the violations found came from complaints.
This suggests that non-reporting of employer wage theft (and other employment
standards violations) is a significant issue that complaint-based enforcement
does not effectively address.
While legislative
change (see below) may offer some improvement, the fundamental enforcement issues
are two:
- There are not enough employment standards inspectors to cover even a fraction of Alberta’s 140,000-odd employers. Effectively, there is no chance an employer will get caught violating the Employment Standards Code.
- Should an employer get caught violating the Employment Standards Code, the only likely penalty is having to pay back some portion (but likely not all—see below) of any wages found owing (plus a small surcharge to the government).
The government
virtually never prosecutes violators. The successful prosecution I can think of
was Domo Gas in 2002 or 2003—maybe there was a more recent one from Klondike
Days? And indeed, non-monetary violations (e.g., illegal child employment,
excessive hours) are “remedied” with an order to stop the behaviour (but not
other penalty). In these
circumstances, is it any wonder that non-compliance is rampant? The solution is
(1) more inspectors and (2) real penalties for non-compliance.
Child Labour
Alberta presently allows adolescents (12-14) to work in four
jobs (delivery of small wares, office clerk or messenger, retail store clerk,
newspaper or flyer delivery) as well as any job approved by the Director of
Employment Standards. At present, certain jobs in the restaurant or food
services industry are considered “approved” occupations (basically anything
except cutty, burny, boozy work), contingent upon parental permission and a completion
of hazard checklist. Your consultation document floats the idea of expanding
the list of named jobs in the legislation to include limited retail sales,
limited restaurants and food services, light cleaning or janitorial, and movie
theatre ushers and cleaners.
It is important to recognize that Alberta employers
frequently violate the existing rules regulating the employment of adolescents.
It is difficult to tell how widespread the issue is because your department has
not released data on, for example, its targeted inspections program for young
workers (which I understand has been discontinued). There is some analogous
data on occupational health and safety violations from a 2011 inspection blitz
that suggests 69% of employers had exposed workers between ages 15 and 24 to
safety violations even though they knew inspectors were coming out (Alberta
2011a). Perhaps your department has some data it could release to clarify rates
of illegal child labour from random inspections?
There is some non-governmental data on this point (Barnetson
2009, 2010). In the past, you have, rather cavalierly, dismissed this data instead
of looking into it (Alberta 2011b). More recent research further substantiates
these concerns about illegality (Barnetson 2013a, 2013b). For example, data
from the 2012/13 suggests 44.4% of employed adolescents surveyed were in
occupations of questionable legality and 25.4% were in clearly illegal
occupations (Barnetson 2013b). This level of illegality is likely related to
the non-enforcement of employment standards and potentially jeopardizes the
physical, intellectual and moral development of adolescents (which is the
rationale for regulation as set out in the Employment
Standards Code).
This concern about the negative
impact of work is more than merely handwringing. In 2012/13, 52.9% of employed
adolescents surveyed reported at least one work-related injury in the previous
year and the majority of those reporting injuries reported multiple forms of
injury (Barnetson, 2013b). These included lacerations, sprains, bruises, burns,
fractures, and chemical or biological exposures causing injury. Reporting (to
parents, employers or the WCB) ran at roughly 50%. Here are some of adolescents’
comments about their employment from several years of data:
- I got eczema due to the chemicals they use to wash tables. (14-year-old female)
- We had to move the really big pigs to other units. That was tough work. We could easily have gotten trapped and run down from the pigs. (14-year-old male)
- I had a 60 some year old guy come into the carwash and I helped him and once he was paying and walking out he said “Thank you.” I said “you’re welcome.” He then surprised me and said “I could help you pull down your pants.” (14-year-old female)
- My employer didn’t pay me on time (and) failed to give me or my coworkers breaks. (14-year-old female)
- Nail gun to the foot. (13-year-old male)
- I work at my grampa’s farm and workplace. I was too young to use big equipment. (12-year-old male)
- I quit because my supervisors were drinking on the job and leaving me to work the kitchen which I wasn’t legally allowed to be in. (grade-10 female)
- We had no gloves for pulling out poison ivy. (13-year-old male)
- I fell off a ladder, twisted my ankle pretty bad. But my boss didn’t do anything. (14-year-old female)
- I got told by an employee that everyone does drugs and if I told anyone I would not be allowed to work there in future. (14-year-old female)
- I got knocked out by a t-bar lift. (14-year-old male)
- I got attacked by a dog. (12-year-old)
- When I do my paper route there is a man who is always following and watching me. I went to the (employer) and asked for a different route. (12-year-old male)
- I was at work and one of the older men followed me to the washroom and tickled me then reached up under my shirt and grabbed my boob. I did nothing because I was only nine, so who would have listened to me. (16-year-old female).
While many people view adolescent employment as character
building, it is important to recognize employment also entails exposing
adolescents to a variety of hazards. Your suggestion that the
Employment Standards Code could be
amended to include limited work in restaurant and food services, light cleaning
or janitorial work and work as movie theatre ushers and cleaners is deeply concerning
and ought to be avoided.
Adolescents can presently perform limited duties in
restaurants, contingent upon the employer obtaining and filing with the
department parental consent forms and hazard checklists. Moving this work to
the list of permitted occupations in the Code would eliminate the need for
parental consent and the hazard checklist. My research on teenage workers leads
me to believe that (1) that few employers acquire or file these documents and
(2) your department does nothing with them. That said, employer non-compliance
is no basis upon which to eliminate this requirement; indeed, it suggests the
need for greater vigilance and enforcement by the government. Why would you
loosen the laws when employers are demonstrably non-compliant with them?
Light cleaning and janitorial services expose adolescents to
a host of new workplace hazards. These include physical hazards (e.g., heavy
lifting, repetitive motions, slippery surfaces) as well as chemical and
biological hazards. While the proposed wording suggests the work would be
limited to “light” duties, many of these hazards exist in so-called light
cleaning. Further, the absence of enforcement of employment standards means
that many employers will likely ignore that “light” nature of the work. Not to
put too fine of a point on this, but how are you going to feel when the first
kid is discovered asphyxiated in the janitorial closet of a theatre or nursing
home after s/he mixes bleach and Mr. Clean and produces mustard gas because you
loosened the rules on child labour?
If you were looking to make meaningful change in the
employment of adolescents and young people, you could (1) actually enforce the existing law and (2) increase the minimum age of employment from 12 to 13. During the last consultation on the Employment Standards Code in 2005, 56.5 per cent of employers and 50.2 per cent of employees believe that 12-year-olds were too young to be employed.
Work Permits
Permitting means an unelected official (the Director of
Employment Standards) can allow an employer to offer employment terms and
conditions worse than the minimum terms and conditions of employment
established by the legislature. There is no need for this (shouldn’t minimums
apply to everyone?). It also places the Director of Employment Standards in a
difficult position: s/he must balance the public interest in uniform minimums with
political pressure that well connected employers may exert (or potentially
exert) to the detriment of the Director’s career. Why would you allow such a
situation to continue?
Internships
The current definition of employee is someone who receives
or is entitled to receive a wage. This definition allows employers to have work
done by interns, whose lack of a wage means they fall outside the ambit of the
Code. This creates a significant opportunity for exploitation in cases where an
internship is viewed as a stepping stone to subsequent employment. For example,
an unpaid St. Albert intern died as a result of a motor vehicle accident that
appears to have been caused by working 16-hour shifts at a local radio station
(CBC 2013). While this case falls in the federal jurisdiction, Alberta’s laws
would permit this same tragedy. Altering the scope of the Employment Standards Code such that it applies to unpaid
internships seems like a decent thing to do.
Hours of Work and
Breaks
At present, the Employment
Standards Code permits workdays as long as 12 hours with 30-minute rest
breaks after each 5 hours and overtime pay due after 8 hours. From a workers’ perspective,
these minimums are awful. Now “awful” is a pretty subjective term so allow me
to propose an experiment that would allow you to draw your own conclusion.
- Do hard labour for five hours. Twitter fights and chicken dinners don’t count. Maybe dig a ditch. Or wait tables in high heels (please tweet pictures of this… but only during your breaks).
- Take a 30-minutes to pee and eat and rest (if your employer lets you).
- Then work another 5 hours.
- Then take another 30 minutes to yourself.
- Now work another hour (which brings you to 12 hours).
How are your feet and back feeling? Ready to go home and
make dinner for the kids? Then back to do it again tomorrow? And the next day?
And the day after that?
Since you earned the minimum wage of $9.95 (but not for the
breaks—they were unpaid) you brought home (before deductions but including some
OT) a whole $125 (assuming there were no illegal deductions). What a deal! Good
thing you are too tired to take the kids to dance or soccer, because you can’t
afford that anyhow.
If you look at, say, Ontario, they limit work to eight hours
in a day (except in unusual circumstances). They also give workers a period of
at least 8 hours between shifts and 11 consecutive hours off work each day
(applicable when workers work split shifts). This radically reduces the amount
of overtime workers can be compelled to work by their employer. There are good public
policy reasons for limiting the normal hours of work to eight (e.g., health and
safety, family responsibilities, community contributions). The only reason to
allow longer hours is to allow employers to avoid hiring more staff and save
some money.
Leaves
It seems to me that the Employment
Standards Code is designed to simplify the lives of employees and employers
by outlining clear requirements and providing an easily accessible avenue by
which to resolve disputes about them. If that is the case, then the Code should
provide for leaves when such leaves are involuntary (e.g., jury duty) or when
the employer is obligated via another piece of legislation to accommodate the
worker (e.g., human rights obligation to accommodate illness). Make it clear so
there are no misunderstandings.
General Holidays and
Pay
Have a look at the
flow chart here and tell me this couldn’t
be a bit simpler. One way to simplify it is to eliminate the “employee eligibility”
requirements. In addition to working for 30 days or more before the general
holiday, the Code currently requires workers to work their scheduled shift
before and after a general holiday in order to be eligible for general holiday
pay.
The most likely explanation for this requirement is that the
government was seeking to help employers discipline workers who might be
inclined to extend their time away from work by not reporting for a shift
before or after the general holiday (those damned lazy workers…). Employers
have a number of tools for addressing unexcused absenteeism. There is no need
for government to buttress employer power in this regard. Eliminating these
requirements would be a step towards simplifying this portion of the Code.
Domestic and Farm
Workers
The Employment Standards
Code and regulation include exclusions affecting domestic and farm and
ranch workers. The Code excludes domestic employees from the provisions around
hours of work, overtime, rest periods and days of rest. There is no good reason
to deny these rights to domestic workers.
Should employers be allowed to force domestic workers to
work longer than 12 hours in a day? Should employers not have to pay domestics
overtime if they compel domestics to work longer than 8 hours in a day? Do
domestics not need rest breaks—to pee or eat or just sit the hell down for a
minute? Do domestics not deserve one day of rest each week?
Given that domestic workers are frequently non-citizens who rely
upon their employer for their continued residency in Canada, are socially
isolated and may face language barriers and thus are unlikely to complain about
violations, its seems unfair to compound their vulnerability by giving them
fewer rights than other workers.
Farm and ranch workers are excluded from statutory
requirements around hours of work, overtime, vacations, child labour and
minimum wage. I was disappointed you didn’t ask about including farm workers. There
is no compelling reason for these exclusions except to help farmers—who are
political important to your government’s (fading) re-election chances—save money.
Of particular concern is waiving the child labour provisions.
In practice, this means that farmers can (and do) have 10-year-olds work with
or around machinery, livestock and chemicals. Since Alberta also excludes farms
and ranches from the ambit of its Occupational
Health and Safety Act, this employment standards exclusion sanctions
farmers exposing children to these well documented hazards for children on
farms. Why would any government allow that to happen? I’d like to point you to
an example of a child’s injury or death, but your government doesn’t
investigate those.
Penalties
Increasing fines for non-compliance makes sense when
continued levels of non-compliance (which do appear high) suggest that existing
penalties are not acting as a deterrent.
Yet, is that the case here?
As I noted above, there is virtually no chance of employers
getting caught and, when they are caught, they must only repay a portion (see
below) of any wages incorrectly withheld. I cannot recall anyone being successfully
prosecuted under the Employment Standards
Code since Domo Gas in 2002 or 2003.
The lack of prosecution suggests the issue is not the level
of the fines but, in fact, the government’s unwillingness to prosecute employers
who violate the law. In this situation, progressive penalties are just window
dressing: they make the government look tough on violators when it really just
turns a blind eye to them.
An analogous situation is the creation of administrative
fines and ticketing in OHS. While these penalties were enacted in October of
2013 and January of 2014 respectively, no penalties have yet been enacted. And,
in a year with a near-record 188 fatalities, prosecutions (five in total)
dropped to an all-time low. It seems to me that the solution here is not
legislative change, but actually enforcing the legislation you enacted.
Appeals
There is unevenness in how the Employment Standards Code handles appeals. Workers dissatisfied
with a decision that they are not entitled to earnings or that a complaint is
not accepted may appeal to the Director of Employment Standards (s.88). The
Director’s decision is final. Yet an employer that is served with an order to
pay wages is entitled to appeal to an umpire (in practice, a provincial court
judge). There is no clear reason for allowing an employer to access to an
independent appeal body on a wage issue while workers are limited to asking the
Director of the unit that made the decision to review it.
Recovery of Earnings
It is broadly accepted that the majority of wage theft
complaints are made by workers whose employment has been terminated (Arthurs
2006, Adams 1987). This reflects worker fear of repercussions if they complain
about wage theft while they are employed. Sure, retaliation is illegal. But workers
aren’t dumb: they know the government won’t do anything about that so they
leave wage theft to be resolved after they quit or are fired.
Section 90 of the Code imposes a number of time limitations
on the recovery of wages that are unfair to workers. Specifically, there is a
one-year limit on orders. Further, orders on unpaid wages may only go 6 months
from the date of termination or the date of the order (whichever comes first).
In practice, what this means is that, if I quit and complain,
the order can only go back 6 months from the date I quit, even though the
employer may well have cheated me out of overtime for three years. That hardly
seems fair or consistent with the notion that there a minimum terms and
conditions of employment.
On the other hand, if I complain while I’m still working for
an employer, then the order can only go six months from the date of the order.
Of course, orders only come after an investigation has been launched and the
officer draws a conclusion. If my employer remedies the wage theft going
forward from the date when the complaint is filed and then stalls the
investigation, the employer is able to delay the issuance of an order. Each day
of delay reduces the amount of money that I can recover because the six-month
period does not crystallize until the order is issued. The simple solution here
is (1) any dates should be from the date of complaint and (2) there should be
no time limit on how far one can go back.
A review of your website indicates approximately 3700 open
orders on unpaid wages (ranging from $22 to $211,921 in value). This suggests
that there is significant scope for improvements in the recovery of unpaid
wages. Whether this requires legislative change or simply much more aggressive
application of the existing rules around director liability is unclear.
Conclusion
I’ll leave you with two thoughts.
First, if you are truly
reluctant to enforce the employment laws you passed (which is negligent and
deceitful), you could simply make it easier for workers to join unions in
Alberta. This would externalize the cost of enforcement in unionized workplaces
to the unions via the grievance arbitration process. Since unionized workplace
appear to also be safer than non-unionized workplaces, such a change might also
reduce the number of injuries in Alberta each year.
Second, I’m currently doing interviews with academics and
activists about Alberta’s child labour laws. Each of the seven experts I have
interviewed has spontaneously volunteered that they expect the only thing that
would motivate meaningful enforcement of Alberta’s child labours by your
government is the death of one or more children while at work. I hope you will
prove these experts wrong.
I hope you find this feedback helpful. If you would like to
discuss any of these matters further, please feel free to contact me at
barnetso@athabascau.ca .
Sincerely,
Bob Barnetson, PhD
Associate Professor of Labour Relations
Athabasca University
References
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