The Ontario Ministry of Labour (MOL) Employment Standards Branch
will be blitzing the retail sector to determine whether there is
compliance with requirements of the Employment Standards
Act, 2000 (ESA). The blitz has already started and will end in
What does this mean for you?
An MOL inspector has an absolute right to inspect any business
location and review books and records during normal business hours
in order to determine compliance with the ESA. The MOL
Examine any records;
Require production of any records;
Remove and copy relevant records;
Order the production of records in a readable form (if kept
Question any person on matters relevant to the inspection.
The ESA is clear that it is illegal to hinder an inspection or
refuse to answer questions that are relevant to the inspection.
Key areas of review include:
Proper posting of ESA poster in a prominent location. Please
note that availability of this information on the company intranet
is not enough. A free copy of the current version of the poster can
Proper record keeping (hours of work, eating breaks, overtime,
scheduling, deductions). In multi-location retail operations, store
staff need to be able to locate store records and advise the
inspector how to contact head office to obtain any records not kept
at the store level.
Provision of accurate wage statements to employees.
Compliance with hours of work, breaks, overtime, public
holidays and vacation pay requirements.
Our sources have also suggested that particular focus will be
paid on whether Store Managers and Assistant Store Managers are
properly categorized for purposes of overtime pay.
The MOL does not rely on job title in determining eligibility
for overtime. Retail managers who spend a significant amount of
their time servicing customers are unlikely to be exempt from
overtime pay requirements.1 The regulation makes it
clear that a supervisor or manager may only perform non-managerial
tasks on an "irregular" or "exceptional"
ESA case law also suggest that "true" managers and
supervisors typically have hiring, firing and supervisory
responsibilities over personnel or significant authority over
important aspects of an operation – such as finance,
procurement or inventory.
If the MOL inspector finds a contravention, the inspector may
issue a ticket (Notice of Offence) or an Order to Comply/Order to
Pay. In almost all such cases, the MOL inspector will return at a
later date to re-inspect the premises for compliance.
How can you prepare for a possible blitz?
Retailers should review their own locations for compliance. Make
sure the correct version of the ESA poster is posted (see
All staff should be told (1) that an MOL Inspector may visit (2)
the Inspector can be politely asked for identification (3) the
Inspector has legal powers and (4) the Inspector should be
introduced to, or given contact information for, the authorized
Manager. Staff should never say "no" to an MOL
Inspector's request for help but they can and should steer the
MOL Inspector towards a manager with authority and knowledge.
The manager should know whom and how to advise internally about the
MOL Inspector's visit, e.g. a more senior Manager, owner,
regional manager, director of operations. The manager should know
where records are kept and what records are kept at a store level
and what records may be kept at another location.
What if you are issued a ticket or Order with which you
It is definitely possible to challenge a ticket or Order to
Comply/Order to Pay. It is important that you contact your lawyer
as soon as possible if you want to fight an MOL ticket or Order, as
there are tight deadlines. Above all, do not ignore the ticket or
The MOL has the power to pursue criminal prosecutions where
Orders are ignored. On April 8, 2013, Peter Check of Cambridge,
Ontario was sentenced for ignoring multiple Orders to Pay in the
aggregate amount of $63,000. The court sentenced him to 90 days in
jail, fined him $15,000 and ordered him to pay the wages. This was
a rare and newsworthy prosecution, but signals a very aggressive
approach to enforcement when MOL Orders are ignored.
1. Baarda v. Plywood and Trim co. Ltd,.
 CanLii 16978 (ON LRB).
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