A Ministry of Labour ("Ministry") inspection is never
a pleasant experience for employers. Ministry inspectors have very
broad powers to enter the workplace and inspect company documents
to ensure compliance with the Employment Standards
Act, 2000 ("ESA") or the Occupational Health and
Safety Act ("OHSA"). Sometimes these
inspections are random. Sometimes they are initiated by an
employee/union complaint. Most of the time, an employer is not
aware or ready for an inspection.
Even though the Ministry has these powers, sometimes even a
management lawyer has to give them credit. I say
this because recently the Ministry of Labour has been quite
transparent about its compliance/enforcement activities and the
types of issues and sectors of the economy to be targeted for
inspection. The Ministry calls these targeted inspections
"blitzes" and publishes inspection activities on its
From October 2013 to December 2013 the Ministry targeted the
retail sector. That "blitz" was discussed in this
post in which I pointed out 5 common ESA violations (usually
unknowingly) committed by retailers. The results of the
Ministry retail "blitz" have recently been published
here. Retailers, and indeed all employers,
should take note of the findings:
118 inspections were completed by the Ministry.
Only 24 employers were fully compliant.
256 Ministry orders were made.
The Ministry "recovered" $240,000 from retail
employers on behalf of employees.
Public holiday pay was the most common monetary violation
(note: I am sorry to say that this validates my previous
post listing holiday pay as a difficult compliance issue for
Record keeping and failing to have certain agreements with
employees (e.g. vacation pay on each cheque and excess hours of
work) was the most common non-monetary violation.
The results of the "blitz" are important.
Approximately 80% of retailers were found to have violated the
ESA and almost a quarter million was recovered.
The Government and the Ministry have been focused recently on
younger workers and part-time labour (and many young and part-time
workers are employed in the retail sector). The Ministry has
been transparent with its activities by, essentially, warning
industry that it will be targeted and even disclosing what
employment standards will be audited. Accordingly, the Ministry may
have less sympathy for employers who are not fully compliant.
Accordingly, ESA compliance needs to be something that is top of
mind for retail employers.
As many retailers have head operations in the U.S. – with
HR and senior management also in the U.S. – there is the
potential for ESA issues to be overlooked. Someone from human
resources or senior management should have specific responsibility
for ESA compliance and consistent policies should be applied at all
stores. Retailers should also consider a human resources
audit to determine risk. These issues should not be left to
individual store managers. It is important to be proactive.
Taking these steps will ensure that when the Ministry comes
knocking, it won't find anything!
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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