I remember when clients reacted to announcements of Employment Standards changes by scowling at you and declaring there was little to be worried about because the system was complaint-based.
“No one will ever visit us”, was the retort. “If someone complains, we will fix it”.
There was little incentive to consider systemic issues. Well, think again! There is no doubt that the Government and the Minister of Labour have new marching orders for the existing Employment Standards Officers and the additional 170 being hired.
As one senior Branch representative told me recently, “we will visit employers so we can use our powers to persuade”. What did he mean by that?
It is one thing to change the enforcement philosophy in the Ministry, but do the Employment Standards Officers really have any powers about which employers should be concerned? Yes sirree Bob! In fact, the Officer I spoke with, cracked open his briefcase and pulled a two page document out. The case was full of them and The Ministry Notice sheets that every employer is supposed to give to every employee. He brandished the document like a war club and smiled.” Whenever anyone I visit questions me, I just give them this.” He handed me his paper club.
The “club” was a list of the statutory powers of an Employment Standards Officer. Who knew?
First, an Officer is not able to be subpoenaed into a civil case to talk about the exercise of his duties in a case or to provide records collected or any other documents involved. Officers are immune from this type of scrutiny.
Second and more importantly, an Officer may, without any warrant, enter any place in Ontario that is not a dwelling to investigate a possible contravention of the Act or to ensure that the Act is being followed. Perhaps happily, these entries are restricted to day light hours or the regular hours of business. But, you can’t stop them. Indeed, s. 90 (11) prohibits any person from hindering, obstructing or interfering with an investigation or inspection. The Act actually goes farther! It is illegal to refuse to answer questions on matters that the Officer thinks are relevant to his activities. It is also illegal to provide false or misleading answers to the Officer’s questions.
Moreover and thirdly, , the Officer can require the production of any Company record which the Officer thinks might be relevant to the investigation. The Officer may require any Company representative to assist as reasonably necessary in explaining the record and making it readable.
Also, and importantly, if you are a lawyer trying to give advice to clients who are being investigated or inspected, under s. 91(13), the Officer can question any person separate and apart from anyone else about anything the Officer thinks may be relevant. In other words, a lawyer cannot intervene and stop an inquiry or answer on behalf of a client. The Officer can cut to the chase and do the interviews privately. No lawyers.
So. No wonder the Officer I spoke to felt pretty confident. Pretty much, whatever the Officer thinks goes. And these powers are only the investigatory ones. Once the Officer finishes the inspection or investigation he/she has the authority to make binding decisions. To appeal, the employer has to pay any amounts being required and then argue. The deck is statutorily stacked against offenders.
The reason for this approach is understandable from the point of view of our lawmakers. This Employment Standards Act sets out minimum standards. These are the most basic rules of employment applicable to every person employed in Ontario. In theory, all employers should be in compliance all of the time. No debate, no explanation, just show compliance. Assuming an inspection by an Officer proves that, the Officer will take his powers and go somewhere else.
But, for an employer who chooses to ignore the minimum standards, beware. The Officers are out there.