This module provides researchers with information on employment standards related to complaints and enforcement. It explores the current limitations in data collection to examine how employees\u2019 complaints and employment standards enforcement varies by jurisdiction and by employees\u2019 social location. Two key research questions guide this module:<\/span><\/span><\/span><\/p>\n\n\n\n This module is comprised of an introduction to the ESD\u2019s organizing themes and concepts surrounding complaints and enforcement, as well as a description of the indicators devised on the basis of legislative details governing employee complaints and employment standards enforcement in the jurisdictions covered by the ESD. The module also<\/span><\/span> includes statistical tables incorporating survey data, a searchable library<\/a><\/span> <\/span>of published and unpublished papers, books and other resources, and a thesaurus of terms. These elements seek to provide a package of conceptual tools and guidelines for research.<\/span><\/span><\/span><\/p>\n\n\n\n Worker-initiated complaints are the foundation of most regimes for enforcing employment and labour rights. Complaint-driven enforcement systems typically involve an established process for handing and adjudicating complaints. In certain jurisdictions, labour inspectorates are obliged to investigate all complaints that fall under the jurisdiction of employment standards legislation. However, in other jurisdictions, inspectorates may select which complaints they will investigate. Inspectorates typically investigate complaints to determine if an employment standards violation occurred, and if so, what if any money is owed to the complainant. Penalties may be imposed on the employer. Complaints may be considered a reactive enforcement system since they rely on employees to bring forward complaints of alleged violations. <\/span><\/span><\/span><\/span><\/p>\n\n\n\n Complaint-driven enforcement suffers from numerous problems. First, there may be risks to taking action that impose barriers to employees accessing the claims process. Workers may fear reprisal if they make a claim against their current employer, notwithstanding that reprisal is unlawful. They may not be aware of their rights and thus may not know that their rights have been violated, a situation exacerbated when entitlements are not universal but rather are subject to various exemptions and qualifications. These barriers may not be evenly distributed across the labour market and this uneven distribution can lead to a second problem with complaint-based enforcement: the source and type of complaints may not be aligned with the underlying problems in the labour market. For example, workers in one sector may complain about violations more frequently than workers in another notwithstanding that violations may be more prevalent in the latter, but have become normalized as working conditions (Weil & Pyles, 2005). Similarly, employees may make disproportionately fewer complaints about violations of a particular standard compared to others, perhaps reflecting the greater difficulty they might experience in determining whether they are entitled to that particular right. Complaint-driven enforcement models also present limited opportunities for enforcement to achieve systemic effects by adopting strategies that may involve using leverage to influence the top of supply chains, rather than continually responding to complaints being voiced at the bottom (Weil, 2008, 2010). <\/span><\/span><\/span><\/span><\/p>\n\n\n\n Compliance<\/i><\/span><\/span> refers to a set of strategies, including the provision of information, persuasion, and negotiation that seek to generate observance of the law. In a compliance framework, when employment standards violations are detected, voluntary compliance is encouraged through the use of strategies such as facilitating settlements or issuing orders that require the violator to do that which he or she should have done in the first place. Strategies oriented to compliance emphasize encouraging voluntary adherence to the law or, achieving adherence after the fact, rather than detecting and punishing wrongdoing (Gunningham, 2010). Compliance strategies are generally based on the view that most employers do not intentionally violate the law but rather do so out of incompetence or ignorance and therefore are not deserving of punishment. These approaches are also features of new governance paradigms (Vosko, Grundy, & Thomas, 2016) based on the premise that engaging employers in cooperative relationships with regulatory officials will lead to joint problem solving that may even produce outcomes that go beyond compliance. In theory, a compliance emphasis avoids the promotion of adversarial relations that may impede the achievement of better adherence to the law (Johnstone & Sarre, 2004; Gunningham, 2015). Compliance measures used in employment standards enforcement typically include public outreach and education and, when violations are detected, remedies which are oriented exclusively towards restoring the employee to the position they would have held had the employer adhered to the law. <\/span><\/span><\/span><\/span><\/p>\n\n\n\n Deterrence<\/i><\/span><\/span> refers to the detection and punishment of wrongdoing. Theorists identify two types of deterrence: specific and general. Specific deterrence refers to the idea that regulated entities that have been subject to legal punishment will take measures to refrain from the illegal activity in the future (Gunningham, 2010). The punishment of wrongdoing can also have a \u201cgeneral deterrence\u201d effect, whereby it may discourage others from choosing to engage in illegal activities. The concept of general deterrence thus captures the broader effects that flow from the punishment of individual actors. Both types of deterrence are premised on the existence of rational, self-interested actors, who conduct themselves according to a cost-benefit analysis of the consequences of their actions; they calculate the risk of being detected and punished against the benefits gained from violating the law. Deterrence strategies may also discourage incompetent or inadvertent violators by drawing their attention to the consequences of being in violation of the law and thus encouraging them to better inform themselves of and manage their obligations in order to avoid penalties. In either case, for deterrence measures to be effective, there must be a substantial risk that law-breaking will be detected and that non-trivial punishments will follow. Deterrence measures that are typically available to labour inspectorates include fines, prosecutions, and various measures to publicize employers who have violated employment standards. <\/span><\/span><\/span><\/span><\/p>\n\n\n\n A growing body of literature illustrates how new ways of organizing work are undermining employment standards and the normative goals of social minima and fairness, especially at the lower end of the labour market where competition intensifies pressure to lower labour costs. Researchers identify numerous ways in which employers seek to reduce labour costs by circumventing employment standards (Bernhardt et al., 2009). The most obvious way in which employment standards are undermined is through outright <\/span><\/span>violation<\/i><\/span><\/span>, which involves a direct contravention of a labour standard, such as non-payment of wages. But, in addition to direct violations, circumvention of employment standards entails a series of linked processes involving the evasion and erosion of legislative standards in addition to formal violations. <\/span><\/span><\/span><\/span><\/p>\n\n\n\n Evasion<\/i><\/span><\/span> involves the adoption by employers of \u201cstrategies to evade core workplace laws\u201d (Bernhardt et al., 2009, p. 6). Evasion may take the form of measures to misclassify employees as independent contractors so that they are not covered by the terms and conditions of employment standards. Employee misclassification is recognized as a pervasive and serious problem in many jurisdictions. For example, in the United States, recent studies estimate that between 10% and 20% of employers misclassify at least one of their employees as an independent contractor, and that misclassification is likely increasing (Carr\u00e9, 2015; Donahue, Lamare, & Kotler, 2007; Smith, Bensman, & Marvy, 2012). Misclassification imposes costs on workers by depriving them of access to workplace standards. It also makes the playing field uneven, which in turn may encourage more employers to abandon standard employment relationships and avoid or evade employment standards in order to remain competitive. Yet misclassification is not just a problem for employment standards. Misclassified employees may be deprived of other employment-related benefits, such as workers\u2019 compensation or employment insurance. As well, misclassification deprives governments of payroll and income taxes that should be paid. Indeed, studies of the United States estimate that these losses in government revenue are in the billions of dollars, and thus efforts to detect and remedy misclassification have been increased (AFL-CIO, 2016; US Treasury, 2013). Although evasion practices such as employee misclassification may not be an ES violation narrowly defined, they represent instances in which employment standards are evaded, as workers are deprived of the protections of employment standards. <\/span><\/span><\/span><\/span><\/p>\n\n\n\n Erosion<\/i><\/span><\/span> entails the weakening of normative goals (e.g., social minima, universality, and fairness) and regulatory impact of employment standards. Erosion of employment standards signals an important shift in employers\u2019 and employees\u2019 perceptions of minimum standards for work. For example, erosion is most likely to occur where violations and evasion have become normalized, such as work environments where practices such as \u2018working off the clock\u2019 (i.e., starting work early or staying late without pay) have become standard. Erosion also involves situations where workers are conditioned to accept working conditions which fall below legally established minima, and no longer see employment standards as relevant to their situation. <\/span><\/span><\/span><\/span><\/p>\n\n\n\n Employment standards violation, evasion and erosion are interrelated and often mutually reinforcing. Continued workplace violations and evasion of employment standards can result in their erosion. However, broader political, economic, and social processes can promote the erosion of workplace norms and objectives surrounding employment standards, which not only weaken protective laws, but facilitate conditions conducive to evasion and violation. These processes are well documented in Canada, the US, Europe, Australia and elsewhere (Bernhardt et al., 2009; Emmenegger et al., 2012; Fudge, McCrystal, & Sankaran, 2012; Gauti\u00e9 & Schmitt, 2010; Kalleberg, 2011; Sargeant & Tucker, 2009; Tucker, 2006; Vosko et al., 2020; Weil, 2017). Considering how the erosion of norms and objectives intersects with processes of social differentiation (e.g., on the basis of sex\/gender, citizenship\/migration status, age, etc.) is critical to understanding how workers are deprived of protection. <\/span><\/span><\/span><\/span><\/p>\n\n\n\n <\/a> Table 1: Definitions and Examples of ES Violation, Evasion, Erosion<\/span><\/span><\/span><\/span><\/span><\/em><\/p>\n\n\n\n\n
<\/a>KEY CONCEPTS<\/h1>\n\n\n\n
<\/a>Complaints<\/h2>\n\n\n\n
<\/a>Compliance and\/or Deterrence Measures<\/h2>\n\n\n\n
<\/a>Employment standards<\/span> Violations, Evasion, and Erosion<\/h2>\n\n\n\n