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Ian Thomas MacDonald
Employment standards legislation is ostensibly designed to ensure a minimum floor of decent working conditions across the labor market. The “enforcement gap” refers to the difference between the bundle of rights established in law and those that are actually respected by employers in the workplace. To simplify enormously, this difference results from the failure of enforcement policy and practice and from the limits of the legislation itself.
These failures are ultimately rooted in the refusal to recognize and redress unequal power relations between workers and employers. Closing the Enforcement Gap is the product of a multi-year partnership involving researchers at seven universities and is co-authored under Leah F. Vosko’s direction. Based on extensive research in Ontario, Canada’s largest province, the volume establishes that the enforcement gap is large, that it is growing, that it harms primarily low wage precarious workers, explains very clearly why this is the case, and suggests, by way of comparisons to other jurisdictions, means of closing the gap.
Establishing the size of the enforcement gap is no easy task because, in a complaints-based system, the baseline of workplace violations against which enforcement may be compared is an unknown quantity. One study conducted in the United States (Weil and Pyles, 2006, cited on p. 271), found that it took 130 violations of employment standards to result in a single worker complaint. This shockingly low ratio is owing to the fear that workers will suffer employer retribution, including termination, for coming forward with a complaint. The ratio also reflects workers’ estimations that their complaints, which require significant time and effort on their part, will likely not result in enforcement or fair restitution. The impressive research presented in this volume proves these fears to be well-founded. Fear of reprisal explains why the vast majority of claimants have nothing to lose apart from the time and aggravation spent in a drawn-out bureaucratic process. As one worker explained to the authors, “if I complain, I lose my job . . . this is why I don’t complain” (p. 69). Only 9% of claimants in Ontario still work for the employer against whom they are filing a claim. The likelihood of restitution for unpaid wages, the most common complaint, is low when employers do not voluntarily comply. Less than 40% of orders to comply result in full payment (p. 1067). These payments can be considerable—the median entitlement for lost wages is CDN $936 (p. 109)—but the practice of encouraging settlements between the parties, favoured by the Ministry of Labour for reasons of administrative efficiency, results in payments below what workers are owed. Bluntly put, “[m]ost employers who do not voluntarily agree to pay entitlements to employees simply do not pay, and the vast majority do not face serious consequences for withholding payment” (p. 122).
What is so special about employment standards legislation that explains the state’s complacence towards illegal behavior? A complaints-based system is built on the assumptions that most employers respect the law and that workers are best placed to identify violations and bring forth claims.
These assumptions, which are unwarranted, go some ways in explaining why employment standards in Ontario are a dead letter—"paper rights not realizable in practice” (p. 4). The authors recognize that this is not a new phenomenon. An “enforcement gap” has existed since factory inspectors were first granted the right to enter the gates of the workplace (above which it is written “no admittance except on business”). The Ontario Employment Standards Act (1968) set a low floor for non-unionized workers, predominantly women assumed to rely on a male breadwinner wage. Even this low floor was from the first undermined by exceptions granted to favoured businesses, and further undermined by lack of resources dedicated to enforcement. Historicizing the problem sustains the authors’ argument that employment standards are not effectively enforced for structural reasons.
