The Rants of Issachar

Here's another beef I have. Employers who violate the Employment Standards Act. Over the years I hear from friends and acquaintences how their employer has done something to them that constitutes a violation of the Employment Standards Act. Often it's something they've found irritating, but ultimately not worth making waves over. Sometimes the violation of the Act has been "legitimized" by the employee signing their name to a form agreeing to the behaviour.

This really, really ticks me off.

First of all, signing a piece of paper agreeing to accept your employers action does nothing. Violations of the Employment Standards Act are simply illegal. Having an employee to "agree" to it does nothing. You can't sign away minimum employment standards. Period. Full stop.

Secondly, an employer who does this creates a negative pressure for all other companies to follow suit. Say you "agree" to take only 2% vacation pay for the first six months of employment rather than the legally required 4%. The cost savings will give your employer a competetive advantage over other employers who actually follow the law. So an ethical employer may well be faced with a lousy choice. Break the law by giving only 2% and mistreat your employees as well, or lose business and ultimately be forced to declare bankrupcy and lay-off all your employees.

This isn't a problem with the content of the law. It's not that the law isn't strict enough. It's that people break the law.

So a couple of points

• The Employment Standards Act should be as simple as possible in order to make it as easy as possible for businesses to follow the law while still actually having good standards. A complex Employment Standards Act discriminates against smaller businesses. A simple law also makes it easy for employees to understand how they are legally entitled to be treated.
• Employers who violate the Act should be crucified. Not literally perhaps, but serious damage should be inflicted on their bottom line to take away the incentive to violate the law. The market doesn't need cheats and scoundrels.
  
• Employees who find the act being violated should report it. If they can't because they fear losing their job, then they should document the problem and go after their employer after they leave the company.
  

Whether it's forcing you to skip legally mandated breaks, an illegal deduction on your paycheque, not paying overtime, or something else, it's crap. Your boss may be a nice guy in other respects, but doing something like this makes him a jerk. And he needs to be punished for it.

Posted by:  Sarah

*cough* Walmart *cough*

Posted by:  issachar

So Walmart should be punished. I'm not talking about some ineffective consumer boycott, I'm talking fines. Big ones.

Let's be clear that we're talking about violations of the Act though. The fairness of paying only minimum wage or the value of big box stores are separate issues, and mixing them in here will only muddy the waters. I'm talking about things that are actually illegal.

So if anyone knows of some specifics, those should be reported ASAP.

Posted by:  RW

Thanks for posting this and for the link to the Act itself. I have often wondered about a few things over my years working for various companies.. I probably fall into the category of thinking this is probably not right but never did anything about it for rear of rocking the boat and the fact that it was never an outrageous demand... I have filed this information for the future.

Posted by:  caleb reed

This is an interesting topic for discussion. I’m going to deviate a little bit from gormans original post because I think the underlying issue even beyond how to enforce fair employment laws is whether or not they should even exist.

Personally I think the idea of the government dictating “fair practices” and employment standards is repulsive. It may have been a good idea 100 years ago when wide scale employee abuses where common but the market will no longer let a company act in that manner. If you treat your employees like crap they will simply leave and gain employment elsewhere. That said if I as an employer want to ask my employees to work unpaid overtime or work through their lunch hour then I should absolutely have the right to do so. As an employee I’ve worked places where I was treated great and places where I was treated wrongly. But the really cool part of living in a free society is that if I don’t like the way I’m being treated….I can leave. If you think your employer is treating you unfairly…quit. There’s no need for yet more government intervention in our lives.

That said I’ve always fought hard for decent wages and fair treatment for people who’ve worked for me, and for selfish reasons, if my people are treated well then it’s easier to attract quality people and to retain them. And if I treat them well they’re much more likely to be willing to put forth the extra effort when we need to work all weekend or pull 70hour weeks to get something accomplished.

I’ve had people both work for me and I have worked along side people who are very interested in their “employment rights” and let me tell you…nothing makes me want to work with someone less or get them off my team faster than whining about missing breaks or working extra hours. Everybody wants to work on the cool projects and get paid the big bucks but they want it handed to them rather than earning it.

If my people are willing to do the work for 10% less than my competitor and I can then sell my product 10% cheaper then I don’t think the government has any business whatsoever dictating to me whether or not I can do that. Now if I do that odds are very good that I wont be able to attract the same kind of talent as my competitors who are paying more….but that should be my choice.

Anyways just my thoughts on it.

Posted by:  David Welch

I would agree with Caleb on this one. I have been an employee and an employer in both big business and small businesses. The bottom line is that the people who work the hardest and do the best job get the raises, promotions and accolades. And the people who want to just skate by go by the wayside when things get tight. This isn't unfair, it's just good business. If, as an employer, I had a guy who just did what was expected of him and another guy who went the extra mile and made my life easier as the boss, which guy should i keep in a pinch? The first guy didn't do anything wrong, but the second guy earned his place.

The same should hold true for businesses. If one business is able to sell a product for less money or a better product because they find ways to motivate their employees to work harder, then they should be rewarded for that, not punished.

The problem is determining what is meant by "unfair." I would define fair as a business laying out the guidelines of a job to a potential employee and that employee accepting those guidelines. If the guidelines change, then the employee and the employer should renegoatiate. If the employer does not, then that is his right, but it is also the right of the employee to leave so the employer can offer the new guidelines to someone else who may consider them "fair." The market will take care of handing a business that does not treat it's employees fairly because it will lose it's quality workers who will go and make another company better.

The classic example of government intervention is the Microsoft issue where they had temporary employees who were doing the same work as the full time employees, but not getting the same compensation. Was this unfair? The government thought so, but I would argue that the workers went into there knowing the guidelines and agreeing to the guidelines and then being unhappy because other people agreed to different guidelines. Now, after they "fixed" the problem, they messed it up for all of the current temporary employees because now, they can only get n months of work and they have to take so many months off. So, who did this help? Not the temporary employees because they now have to find alternate forms of work once a year and hope they can get back when their time off is over. Not Microsoft because they have to constantly retrain people. Not the consumers because that retraining gets paid by someone and the product suffers. So, the government intervened in a "unfair" situation and made it worse for everyone.

Let the businesses dictate what is "fair" and let the market uphold it. And let people's work ethic drive their compensation.

Posted by:  issachar

Caleb,

While I appreciate your comments I still say that monetary crucifixion is in order. I know you'll go to bat for your subordinates on pay issues, but being fair to employees is only half the issue.

The other half is that violaters of the ESA (BC law), are breaking the agreed upon rules of the market place. I'm not talking about penalizing people who play hard within the rules. I'm talking about the straight up cheats.

Forget about who's working hard and who isn't. Violaters of the ESA gain an illegal competative advantage. Penalties need to be applied so that this advantage is eliminated. This removes the incentive to violate the law.


David,

I like your MS temps example. I suppose it isn't unfair to the employees if they're made aware of the situation before they start working. But it is still unfair to Microsoft's competitors if Microsoft was actually breaking the law. (Were they?)

Consider the employer who chooses not to break the law because it's unethical to break the law. (This would presumably include truly Christian businessmen). They're now faced with a choice between the unethical and hurting their business.


So what's wrong with penalizing people who actually break the law?


Of course I don't think that the ESA came down from Mount Sinai on stone tablets. There are probably parts that should be changed. So they should be changed for all businesses.

Posted by:  issachar

okay, I need to read more carefully... Somehow I missed, (or more accurately ignored), Caleb's statement here: " I’m going to deviate a little bit from gormans original post".

Right. I suppose I should compose an actual response to what he said, rather than just repeat myself.

Posted by:  issachar

Okay, perhaps now I can actually think to answer Caleb's points... :P

While I appreciate your points about self-reliance, I don't think it sufficiently takes into account to tools of coercion available to employers in the absence of labour legislation. It also assumes that people are able to change jobs at will. Frequently this is not the case.

Part of the reason that large scale employee abuses are no longer common is precisely because of labour practices legislation. In the absence of any labour laws at all, the natural result is a race to the bottom. This is not the case for all employment, but it is the case for unskilled, very low skill employment or jobs that require only job-specific training.

Without labour legislation, people in these positions end up being mistreated. One can reply with "they need to improve their job prospects", but I don't find this response terribly ethical. Since government intervention can mitigate the most serious abuses, I see no reason not to use legislation. Yes, this does impose a limit on an employers actions. However limits on our freedoms an intrisic part of civilization. The question is not whether or not the limit exists, but whether or its benefit outweighs its cost.

Of course the over-use of legislation damages the marketplace and hurts everyone's job prospects. The trick is finding an appropriate balance.

I think that when we create labour legislation we need to always be aware that legislation cannot create ethical behaviour. It can merely act as a blunt tool to curb the most egregious unethical practices.

You're are of course right about people who work hard versus clock watchers. As an employee I want don't like working with clock watchers anyway because I enjoy working less when I'm around them.

Posted by:  Katinka

...and now for our world domination plan! :P

(great picture, by the way)