Welfare Fraud: The Constitution of Social ... - York University

Employees are encouraged to reach an agreement with their respective employers, and
if unsuccessful to pursue a formal claim. But even if fully pursued and successful, with
an “Order to Pay” issued against one’s employer, recovery of money owing is still very
tenuous. Orders to pay go to private collection agencies, and as discussed below,
Orders are often simply ignored by employers. An Employee Wage Protection Program,
formerly in place to provide a safety net for employees to recover unpaid wages, was
first capped and then eliminated by the Conservative government. In Judy Fudge’s
assessment, the overall import of the changes has been to make it easier for employers
to avoid their legal obligations. 259 The shift of responsibility for enforcement onto
individual employees and private collection agencies, as well as the elimination of the
Employee Wage Protection Program represent additional instances of the decline of the
social in the regulation of work.
While the legislation contains several enforcement tools including provision for pro-active
investigations or audits, as well as a range of investigative powers and penalties, the
system is, as noted, primarily reactive (responding to an individual’s complaint) and
many of the powers and penalties available seem to hardly be utilized at all. The basic
complaint process works as follows: an employee who is aggrieved completes a written
claim form, s/he is encouraged to reach a resolution with the employer, but where no
resolution is possible, the matter is referred to an Employment Standards Officer
(E.S.O.) for an investigation. An E.S.O. enjoys many of the same powers as E.R.O.s and
those conducting tax audits: the power to enter and inspect any place other than a
dwelling; the power to require production of a record; and the power to question any
person on matters relevant to the investigation. 260 Often the investigation will include a
‘fact-finding’ where the employee and employer will be required to attend a meeting with
an E.S.O. 261 Unlike an E.R.O, an E.S.O. has the power to issue a decision, and if in the
employee’s favour, to issue an “Order to Pay” against an employer, an order which
becomes final and binding after 30 days. 262 The E.R.O. can decide to expand the scope
of the inquiry beyond the individual complaint before him or her to examine the
employer’s practices more broadly through an audit. Data from the Ministry suggests,
however, that this is rarely done (See Table 3).
259 Fudge, supra note 255.
260 E.S.O. 2000, supra note 256, sections 91 & 92.
261 Ibid, Section 102.
262 Ibid, section 103.
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