Employer risk 101 – Ministry enforcement of the ESA

If you are reading an employment law blog you already know that employers have legal obligations under the Ontario Employment Standards Act (“ESA”). The top five violations for the fiscal year 2014/2015, as compiled by the Ministry of Labour, were with respect to:

1. Public Holidays/Public Holiday Pay
2. Record Keeping
3. Overtime Pay
4. Vacation Pay/Vacation Time
5. Hours of Work: Excess Daily or Weekly

The Ministry of Labour has jurisdiction to enforce the ESA. They do this primarily through complaints, though they also conduct targeted industry inspections. Statistics regarding enforcement activities are posted on the Ministry’s website.

For the fiscal year 2014/2015, the Ministry investigated 17,453 complaints and 2,477 targeted inspections. Given the number of workplaces in Ontario, that doesn’t seem like a whole lot, but often such complaints find their seeds in a disgruntled ex-employee who has nothing to lose when they call the ESA hotline.

Employees often tend to suddenly remember all of their unpaid overtime or public holiday pay upon a contentious termination. Your employee can file a claim with the Ministry and an Employment Standards Officer will investigate. There is no cost to the employee, although it is important for employees to recognize that they cannot pursue the same claim in both the courts and through the Ministry.

Upon a filed complaint, the Officer may visit your workplace, call or write a letter. They may request documents or come into the workplace and review records. At all stages there will be strict timelines. Not complying with these will often mean that your documents or argument will not be considered, and the employee’s version of the allegations may be deemed to be true without the employer providing its side of the story.

Both sides will have an opportunity to make their case to the Officer, so it is important for employers to take that first phone call from the Ministry seriously—that otherwise friendly conversation could be the full extent of the investigation, after which a decision is then rendered.

Following the investigation the Officer will make a written decision regarding the alleged violation of the ESA. The employer can pay the fine upfront, or the Ministry will then issue an Order, which will require an application for review to the Ontario Labour Relations Board if the employer wants to appeal the decision. The odds of success at that point are very slim, so the upfront cooperation is essential to avoid getting to the Order stage.

Compliance with the ESA is important, an investigation can be a big hassle, and no employer wants to make the Ontario government’s bad employer’s sunshine list.

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Lisa Stam, Spring Law

Founder of Spring Law, Employment and Labour Lawyer at Spring Law

Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technology in the workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media and technology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.

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