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Is There a Deterrence Gap in Employment Standards Enforcement
- 1. Is There a Deterrence Gap in Employment Standards Enforcement? Eric Tucker, Osgoode Hall Law School, York University Leah F. Vosko, York University John Grundy, Wilfrid Laurier University Mark Thomas, York University Alan Hall, Memorial University Elliot Siemiatycki, York University Global Labour Speakers Series York University 19 March 2014
- 2. Outline 1. Conceptualizing the Deterrence Gap 2. Ontario’s Deterrence Gap in Historical Context, 1970s – 1990s 3. The Current Practice of Enforcement in Ontario 4. Preliminary Conclusions
- 3. Conceptualizing the Deterrence Gap Deterrence Compliance Subjects of Regulation Rational Calculator Ignorant or Incompetent Citizen Nature of Harm Caused Serious Harms Remediable Harms Incidental to Beneficial Activity Goal Alter Cost-Benefit Analysis Promote Better Performance Means Raise Risk of Being Caught/Increase Penalty Provide Information and Compliance Assistance Effects Specific and General Deterrence Promote Culture of Going Beyond Compliance
- 4. The Enforcement Pyramid In reality, enforcement systems typically combine compliance and deterrence strategies in some way Popular model of how to combine them is the enforcement pyramid Deterrence Compliance
- 5. Problems with the Pyramid Change in assumptions about The character of violators and The social harm caused by violations Could produce a differently shaped model
- 6. Problems with the Pyramid How high? How steep?
- 7. Problems with the Pyramid How effective is the system at detection?
- 8. Ontario’s Deterrence Gap, 1970s-90s Ontario’s Employment Standards Act was enacted in 1968 to promote “socially acceptable” conditions of employment for those without strong bargaining power Reflected a ‘compliance’ approach, with enforcement primarily complaints-driven and ‘self-reliance’ promoted through educative strategies “…when statues such as the E.S.A. and its predecessor statutes have been passed and wide publicity given to their provisions, it is incumbent upon the public and organizations to comply with them without an individual visit from the staff to advise them of public responsibility” [Dalton Bales, Minister of Labour, 1969]
- 9. Reactive complaints are the primary enforcement mechanism and employers are rarely prosecuted Year Claims from Intake Investigations % in violation Prosecutions 1981-82 15629 14754 75 11 1982-83 15740 15517 72 4 1983-84 17541 17425 73 0 1984-85 18903 18091 73 4 1985-86 18125 17177 72 39 1986-87 18524 18301 71 28 1987-88 18377 18301 70 9 1988-89 19492 18312 71 32 1989-90 23004 19027 70 27 1990-91 21008 18593 68 31
- 10. Proactive inspections are an effective means to uncover violations but these declined through the 1980s and 1990s
- 11. Current Enforcement Practices in Ontario Prosecution NOC or Ticket Order to Pay Proactive Inspection Complaint to Ministry Self-Enforcement Promotional Activities
- 12. Current Practices – Proactive Inspections
- 13. Current Practices – Orders to Pay
- 14. Current Practices – N.O.C., Tickets, and Prosecutions Activity June 2005- May 2006 Jan 2007- Dec 2007 Aug 2009- July 2010 Jul 2010- Jun 2011 Jun 2012- May 2013 N.O.C. 4 57 (07-08) 39 66 N.A. P.I Tickets 267 395 239 266 332 • Total Fines $93,182.50 $148,930 $85,385 $94,745 $122,425 P.III Prosecutions 12 26 17 6 19 • Total Fines $326,250 $343,393 $91,864 $22,375 $515,225
- 15. Preliminary Conclusions Use of deterrence tools is extremely infrequent Unclear whether the recent decline of complaints reported to the ESB (27,637 in 2010-11 to 12,344 in 2012-13) is due to employees having workplace problems resolved directly by their employers or due to their reluctance to file formal complaints MOL policy embraces a compliance model that downplays deterrence tools Use of deterrence tools is based on contingent assumptions about employer motivations (is non- compliance intentional) and seriousness of the violation (is non-compliance intolerable)