Monday, March 10, 2014

Alberta's Employment Standards Review

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.

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:
  1. 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.
  2. 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?

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.
  1. 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). 
  2. Take a 30-minutes to pee and eat and rest (if your employer lets you). 
  3. Then work another 5 hours. 
  4. Then take another 30 minutes to yourself. 
  5. 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.

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.

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.

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.

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 .


Bob Barnetson, PhD
Associate Professor of Labour Relations
Athabasca University


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