Heading for the big house

There may be a crackdown on employment standards violators coming – including jail time for non-compliant owners ​

Heading for the big house

By Jeffrey R. Smith

There are a lot of instances out there of employers taking advantage of employees. It’s a fundamental presumption in employment law that there exists a power imbalance between the two parties — employers hold the livelihood of employees in the balance — so the purpose of employment standards legislation and common law jurisprudence is to even things out a little bit.

However, sometimes employers think they can exploit the power imbalance and intimidate employees so that the latter don’t — or are unaware they can — use their rights. And sometimes employers get away with it. But it seems the cases of employers not living up to their legal obligations may be decreasing and jurisdictions are cracking down on business that don’t take care of their workers.

Sometimes employers that fail to comply with employment standards obligations will get caught and investigators or ministerial delegates will issue orders to comply. Even then, though, the employers may be reluctant to follow through. And if things go to court, it often ends up with the employer just being ordered to pay again, this time by the court. But things may be getting a little dicier for employers that are breaching employment standards.

A recent case in Ontario shows that province’s Ministry of Labour is getting more heavy-handed when it comes to employment standards violators. The owner of a Toronto restaurant had failed to pay more than 60 workers wages, overtime, and benefits to the tune of more than $676,000 — including ignoring an order to pay what was at the time $457,000 in unpaid wages to the workers. After the ministry tallied up the employment standards violations, it decided to lower the boom on the business owner — and not just with a typical fine. The restaurant owner was fined a large amount — $900,000 — and was also sentenced to 90 days in jail.

Jail time for individual employers for employment law violations is extremely rare. Even since serious health and safety violations became part of the Criminal Code several years ago, very few employer representatives such as managers and owners have been sent to jail for breaking the law. But now it seems violations that are seen as particularly serious by a provincial ministry may just lead down that road.

Criminalizing health and safety violations that lead to worker deaths or serious injuries made sense when that came about — serious negligence in safety matters risk’s life and limb, not just someone’s job or compensation. Jail time is a serious sentence, but is it just punishment for a business owner who ignores employment standards obligations?

Jail time is pretty serious, but there are also different levels of jail time depending on the offence. In the case above, the business owner was sentenced to 90 days’ imprisonment — not a terribly lengthy offence, but probably enough to drive home the seriousness of it to someone who probably wouldn’t otherwise have expected to spend some time in the slammer.

Is jail time appropriate punishment for business owners who violate employment standards, especially if an owner is already being fined a substantial amount of money? One way or the other, it may be punishment that becomes more common for extreme cases like the delinquent restaurant owner — especially in jurisdictions like Ontario, which in 2017 promised to hire 175 more employment standards officers. Things are getting serious for non-compliant employers, and if they fight the law, the law will probably win.

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