Tuesday, June 12, 2018

Research: Retaliation and workers' hesitance to claim employment rights

Fear factory: Retaliation and workers’ hesitance to claim employment rightsCanadian Industrial Relations Association Annual Conference
Montreal, May 2, 2018
Jason Foster, Bob Barnetson, and Jared Matsunaga-Turnbull

The modern employment law regime is aimed at codifying particular employee rights in areas such as employment standards, occupational health and safety, injury compensation and the right to join a union.

A key feature of that regime is establishing mechanisms for employees to make claims or complaints when their rights are violated, either directly with the employer or by contacting government officials.

In fact much of the system relies on pro-active action on the part of workers. To file a WCB claim. To make an employment standards complaint, to sign a union card and take part in a vote. Workers need to take active steps if they are to ensure the legislated rights are protected.

Formally legislation contains prohibitions against employers taking retaliatory measures against a worker who complains. Longtime observers of employment recognize that those prohibitions are problematic in terms of enforcement and that workers can be vulnerable to reprisal should they choose to speak up. A number of studies have shown that workers often fear reprisal should they speak up against their employer.

Of note is Alexander and Prasad who looked at enforcement of employment law in US. They found that 1) workers have inadequate knowledge to identify violations and 2) are reluctant to make complaints. They also find that workers lack trust that the system will actually work for them.

Further they find workers’ fears are well warranted. Their study found that 43% of complainants faced some kind of retaliation from the employer. Also, only 15% had their concern addressed by their employer.

My presentation today is part of a study I and my colleagues conducted to examine how workers perceive and utilize their rights under employment law that was funded by the Government of Alberta OHS Futures Program. Specifically we look at the effect of fear of reprisal plays in workers’ willingness to advocate for their rights.

We examine why workers report NOT reporting rights violations in the workplace. We also explore how many workers feel fear and which workers feel the highest level of fear.

Our analysis looks at how these results might reflect upon the overall effectiveness of Canada’s employment rights regime.

In spring 2017, we conducted an online survey of 2000 Albertans who had engaged in paid employment in the province during the past 12 months. We presented a 39-item questionnaire, which included pertinent demographic and occupational data.

For the purposes of this presentation we presented respondents with 14 rights-claiming scenarios. Examples include filing a WCB claim, asking for time off work to attend to family responsibilities, and refusing unsafe work.

We provided a range of relatively low risk actions, such as asking for safety information, to more risky behaviour such as talking about a union and filing an employment standards complaint. We based the 14 scenarios on Wayne Lewchuk’s recent work.

From the answers we create a Fear Scale based upon how many times a worker expressed fear of reprisal, ranging from 0 to 14.

We also established a 15-point scale related to hazard exposure to measure the relative safety of the respondents’ employment (the broader study emphasized OHS related issues).

Taking all factors into account, an average of 16% of workers reported fear of reprisal.

Fear ranged from a low of 10% for low risk actions like reporting an injury to the employer and asking for health and safety information, to a high of 23% related to formally filing a complaint with the government around unpaid wages or unsafe working conditions.

While these numbers may seem low – a majority of workers report not feeling fear – we need to keep in mind that the current regime has been in place for decades and that workers are regularly reminded that their rights are protected. That almost 1 in 5 workers continues to express fear of reprisal from basic acts of defending themselves is significant.

But our main interest is in which groups of workers are more likely to report fear, as vulnerability is not evenly distributed in the workforce.

In terms of specific fears there was a complex matrix of results. Which is why we turned to the fear matrix. Our supposition is the more times a worker reports fear, the more deeply held their fear of reprisal is and, at least subjectively, the more vulnerable they are to reprisal.

Our correlations found that young workers, workers who identify as a visible minority, part-time workers and workers with shorter job tenure report a greater depth of fear. Other workers who reported deeper fear were those who have been injured in the past 12 months, those exposed to more hazards in the workplace and, surprisingly, union members.

We conducted a linear regression on the significant variables to try to map out a model. The results found that union membership, part-time employment and job tenure were all fully mediated by other factors.

So that leaves us with four significant characteristics: number of hazards exposed to, experience of workplace injury, visible minority and young workers.

It is likely unsurprising to this room that young workers and visible minorities feel greater levels of fear. In the workplace they can be more vulnerable to employer intimidation and are more likely to be found in jobs where employment rights are not respected.

More work is required to unpack the link between unsafe working conditions (and injury) to fear, but we can speculate that jobs where basic safety precautions are not taken – leading both to more exposure and more injury – will be workplaces where the employer is less concerned with their employees’ rights. Injury and hazard exposure can be seen as a proxy for other factors – a theory that requires further research.

The final question we explored was to examine why workers don’t report injuries or refuse unsafe work.

Our study found that only 30% of serious injuries are reported to WCB, a finding the supports previous research into the topic. Further, when workers are faced with an unsafe work situation, only 33% refuse.

Workers report a wide range of reasons for not acting on their rights – fear is a significant factor, but not the only one.

For injuries, a majority report feeling the injury wasn’t serious enough but other common responses were not knowing they had a right to file a claim, not wanting to cause problems for employer and being pressured into not reporting. Many of these responses circle around notions of fear and can be argued as a different articulation of the same concern – not wanting to get on the wrong side of the employer.

Reasons for not refusing unsafe work are similar: not wanting to be a troublemaker, feeling no one would take it seriously anyway, pressure to keep working and not knowing about the right to refuse. Many workers also took steps themselves to fix the problem rather than report it. Again this suggests a widely held belief that exercising ones rights is ineffective and places a worker at risk in some fashion.

Again these results are consistent with similar studies into worker perceptions of their rights.

Our findings suggest three things to us.

First, the responses suggest that a significant portion of workers fear reprisal for exercising their basic employment rights. Possibly for good reason. The more vulnerable the worker is, the more deeply they feel that fear.

In a way that is not an unsurprising result, but it does offer us some quantitative evidence of what workers are thinking when making choices about how to exercise their rights.

Second, our study suggests that workers don’t really trust the employment law regime as it stands. They don’t, when push comes to shove, believe it will be there for them. The results are, understandably, complex but we don’t see any kind of expression of confidence that the government will come to workers’ defence when they need it. Instead what we find is that workers feel on their own and how confident they are about exercising their rights is dependent upon how vulnerable they are at work.

Finally, the study hints at the fact that maybe the employment rights regime has been poorly designed. It places a high degree of onus on employees to act to ensure their rights are respected. The enforcement regime is set up to address complaints. And that might be the problem.

It may be that the system, in practice, spends its energy helping workers who are most able to help themselves – those who don’t feel fear and so report transgressions. And as a result it might be missing the workers who need the government’s help the most.

The consequence is that government resources are directed to the wrong locations as officers investigate workplaces where workers are most able to defend themselves. Furthermore, the workers who need help the most are left unprotected by the enforcement system.

The system we have entrenched may, ironically, function to entrench the inequitable vulnerabilities found in the labour market.

The solutions are likely fairly complex, but definitely point to the need for more pro-active and targeted inspections by government officers. Selecting workplaces for inspection based upon the nature of the work and/or the make-up of the workforce. The limited examples of such enforcement in Alberta – such as TFWs – has proven to reveal widespread violations.

Finally our paper posits a more radical solution. We float the idea that governments should empower community groups and worker organizations to conduct workplace inspections and identify violations.

Workers health centres, immigrant agencies, etc. would have the power to enter workplaces and catalogue violations, reporting any findings to the government for enforcement. While this idea has never been tried it has the potential to greatly increase the number of eyes and ears keeping a watch on workers’ employment rights. An idea at least worth discussing further.

-- Jason Foster

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