Workplace Wire

The Ontario Ministry of Labour recently announced a push to conduct audits of retailers, including grocery stores, gas stations, and shopping malls, between October and December 2013 for compliance with the Employment Standards Act, 2000 (ESA). In particular, the audits will focus on compliance with:

• Public Holiday Pay
• Overtime Pay
• Hours of Work
• Vacation Pay
• Poster placement

The Ministry of Labour has invested an additional $3 million in an effort to double the number of Employment Standards Officers performing audits. As part of this blitz, Officers may proactively visit businesses even if no complaint has been filed. Officers may – but are not required to – provide advance notice of their inspection.

Powers of an Officer and Consequences of Non-Compliance

Officers have a wide range of powers under the ESA, including the ability to:

• Enter and investigate without a warrant
• Examine records (typically for the past 3-6 months, but could extend to up to three previous years)
• Require production of relevant documents
• Take records or any other relevant documents
• Question any person, including employees

If violations are found during a proactive inspection, Officers may:

• Issue compliance orders
• Issue orders to pay wages
• Issue orders to pay fees
• Issue a “Notice of Offence” ticket
• Inspect the employer again at a later date
• Consider prosecution

Preparing for and Responding to an Audit:

Managers are typically the first point of contact with an Officer. Because of high rates of turnover in the retail sector – particularly in the pre-Christmas rush – it is not uncommon that managers are unaware of the requirements under the ESA and the details of the company’s practices. We recommend that human resources/in-house counsel reach out to store managers to develop a protocol for if/when an audit occurs. Managers should, at the very least, be advised of who to contact in the event of an audit and understand the importance of responding in a timely, but also accurate and complete, way.

Ultimately, the best defence to an audit is to ensure that all levels of the business understand what is required by the ESA. Self-audits are one tool that can be used by employers to ensure that the company’s practices both meet the minimum standards under the ESA and are being consistently applied by all levels of the business. The Ministry of Labour has developed the following tools to assist:

• Ministry of Labour Public Holiday Pay Calculator
• Ministry of Labour, Complying with the Employment Standards Act (ESA): A Workbook for Employers
• Ministry of Labour Hours of Work and Overtime Tool

Employers may also wish to view the Ministry of Labour’s video on audits.

Please contact your Heenan Blaikie lawyer for any additional questions or to arrange for a review of your company’s existing practices.

**The author wishes to thank articling student Erin Payne for her assistance in preparing this posting.