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Employment & Labour

Employment Act should be backed by education, enforcement: MacLeod

The results of an inspection blitz that found three-quarters of Ontario employers were violating the Employment Standards Act isn’t unexpected, says Toronto employment lawyer Doug MacLeod.

In fact, he’s surprised the non-compliance rate wasn’t higher.

“Small and medium-sized businesses are not complying with employment laws because it’s too difficult to keep on top of them,” says MacLeod, of MacLeod Law Firm.

“They just have no knowledge of what their obligations are.”

The Ministry of Labour conducted the blitz last summer, focusing on places of “precarious employment,” including cleaning, security and fitness facilities, the Toronto Star reports.

Of 304 inspections, 238 workplaces were found to be breaking the law, receiving infractions such as poor record-keeping, unpaid overtime and holiday pay, according to the Star, which obtained a detailed breakdown of the inspections.

MacLeod says the Employment Standards Act is amended all the time, including this past year, and it can be difficult for smaller employers to keep up.

For example, he says every employee should receive a poster that summarizes some of their rights under the act.

Similarly, all employees — even those who work in relatively safe environments on a computer — are expected to receive mandatory health and safety training under the Occupational Health and Safety Act.

“These are obligations that are imposed on very small employers and employers have no idea they are supposed to be doing these things,” MacLeod tells AdvocateDaily.com.

“These are employers who don't have a human resources person they're just keeping their head above water and trying to keep their businesses afloat. This is not a priority for them and the government is not devoting many resources into educating people.”

MacLeod questions why the provincial government continues to amend and introduce new laws if so few businesses are following them, or if the companies that do are put at a competitive disadvantage.

Employees have a right to lodge complaints, but most don’t bother unless they have been terminated. Even then, many employees avoid the process if it’s over a relatively small amount of money.

The Ministry of Labour's proactive blitzes act as a sort of added protection for the employee, MacLeod says.

“So the employee doesn’t have to complain in these situations,” he says.

Still, MacLeod said the inspections represent a tiny fraction of all employers in Ontario. They may send a message, but it depends on how risk-averse the business is.

“They may say, ‘I’ll take my chances,’” MacLeod says.

While most employers are violating the law because of ignorance, that is no defence in court, he says.

But he believes if the province wants to bring in new laws, officials should invest in educating the public.

“If you're trying to change the employer’s behaviour or provide benefits to employees, at least educate the public so they know what’s going on and devote enough enforcement resources so they know that if they don't comply there’s a risk of being prosecuted,” he says.

“Right now there are just too many laws not being enforced and not being brought to people’s attention.”

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