Did you know? As of May 20, 2015, Ontario employers could be
required to self-audit their Employment Standards Act
The amendments allow Employment Standards Officers to require an
conduct a self-audit of its records,
practices or both to determine whether it is in compliance with one
or more provisions of the ESA and regulations; and
report the findings of such
self-audit to the Officer, including any incriminating evidence of
an ESA violation.
The Employment Standards Officer must provide the employer with
written notice of the audit. The notice will identify information
to be provided in the employer's report regarding ESA
compliance and may require the employer to describe the measures
that will be taken in order to become compliant. The amendments
specifically target wage violations, permitting the written notice
to direct the employer to:
include in its report to the
Employment Standards Officer an assessment of whether one or more
employees are owed wages; and
pay wages owed if the employer
assesses that one or more employees are owed wages.
An employer who provides a report to an Employment Standards
Officer may still be subject to inspections, investigations and
While the practical application of this new provision is
untested, it raises significant issues for employers; namely, it
puts the employer in the inspector's role and may ultimately
result in the employer having to disclose incriminating evidence to
Proactive employers may want to conduct a confidential and
privileged audit of their workplace practices before receiving a
written notice from the Ontario Ministry of Labour's Employment
Standards Branch. McCarthy Tétrault has developed an
HR Compliance & Risk Management Diagnostic that helps
employers achieve compliance with employment regulations, reduce
the risk of individual employee claims and multi-employee class
actions, and mitigate reputational damage related to workplace
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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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