Canadian HR Reporter

CANADIAN HR REPORTER April 17, 2017 NEWS 13 RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 200,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 1/5/2016 3:24:31 PM "Most of the time, I don't think employers are consciously setting out to violate the Employment Standards Act," said Daniel Cho- dos, partner at Whitten & Lubin Employment Lawyers. Ignorance of the law can play a big role, however. "Take overtime, for example," he said. "ere's a misconception I hear over and over again, from both employers and employ- ees, that salaried employees are not entitled to overtime… at couldn't be more wrong but it's a common belief." In such cases, employers may feel mistakenly confident about their actions and have no idea they're breaking the law. "So if I'm running a business and this is what I truly believe, I'm going to make a lot of mistakes and if I get caught, I'm going to be paying overtime to every single one of my salaried employees," said Chodos. "Some might very well be ex- empt, but there will certainly be many who aren't." But employers "won't get any sympathy for that — ignorance of the law is no excuse," he said. Employers can also find them- selves struggling to fully under- stand the law. "It can be immensely confus- ing, and that's a big part of the problem," said Chodos. "e ESA section on vacations and vacation pay, for example, is written in a way that even per- plexes lawyers." Sometimes, there are other moving pieces to take into con- sideration as well. "It can be very difficult to under- stand how all of these rules dove- tail with each other, plus there are occupational health and safety rules to consider as well as union rules," said Chodos. "If you're in a small business, good luck to you. at's a lot to keep track of." For some employers, it might be something of a calculated risk. "Most of the time, you're not going to get caught, so you might think to yourself 'Let's just do this until we get caught — if we get caught — and then we'll deal with compliance,'" he said. 'Tough' penalties? Typically, employers that are found to be in violation of the ESA receive orders to comply with rules and pay employees any money that's owed. But the repercussions of getting caught are not, typically, enough to spur some employers into action, said Chodos. "You wonder where the motiva- tion is for an employer to follow the law, where the only result of not complying is being forced to comply." In many states south of the bor- der, an employer has to pay three times the wages that are earned if it gets caught not having paid an employee, he said. " That's a really strong motivator." But lately, the ministry has been enforcing tougher repercussions for ESA violators, said Janet De- line, spokesperson for the Minis- try of Labour. "We know that some employ- ers are not taking orders as seri- ously as they should," she said. "So, we are holding repeat vio- lators accountable by pursuing prosecutions." If convicted, penalties for em- ployers can include up to six months of jail time. And in a 12-month span over 2015 and 2016, the ministry launched 950 prosecutions against employers that failed to comply with orders to pay, said Deline. "at's an increase of almost 450 over the year before, and is more than we pursued in any pre- vious year." Staying on the right side For an employer, the simplest so- lution is to comply with the law in the first place. And to sort through potential confusion, the ministry suggests employers use the gov- ernment-published Guide to the ESA, plus videos and tools, on the ministry's website. It's worthwhile to check in with any association and in- dustry groups, too, said Deline, since the ministry partners with many groups to help put accu- rate information into employers' hands. e ministry has also set up an Employment Standards Informa- tion Centre, offering general in- formation about the act by phone or email — and anonymity. "You could call up and say, 'I'd like to get a sense of what it is we might be doing wrong. ese are the areas of focus. What are my obligations and how can I com- ply?'" said Deline. Outside counsel can also be helpful, particularly if an employ- er is dealing with an especially complicated situation or set of rules, she said. "We do encourage employers to seek advice from a lawyer if they are having difficulty understand- ing what their responsibilities are." Understanding legal obliga- tions tends to be simpler than untangling legal challenges, said Chodos. at means homework can pay off, whether spending the time consulting with someone at the ministry, or investing in a law- yer's expertise. "It's an ounce of prevention, essentially," he said. "You might make sure down the line you save an awful lot of money and an aw- ful lot of headaches and attention from the wrong organizations just by making a few phone calls and going through some records." When an impending inspection is announced, employers might be motivated to ensure they're in compliance, at least for the short term, said Chodos. "I'm going to say to my clients 'Guys, be really careful. From this date to this date, the Ministry of Labour is coming down hard and they're probably coming to see you. So let's get everything in or- der and let's talk about what needs to be done.'" After the blitz, however, Cho- dos questioned how well employ- ers will maintain compliance. "It's not that difficult for em- ployers to be good for two months," he said. "It's a lot more difficult to do it all the time." Melissa Campeau is a freelance writer based in Toronto. 'Ignorance of the law is no excuse' ESA < pg. 1 "We know that some employers are not taking orders as seriously as they should. So we are holding repeat violators accountable by pursuing prosecutions."

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