Compliance Policy and Enforcement Procedures
Purpose
The following document explains the current policy and the procedures
followed by department staff when responding to employee complaints
or situations where minimum employment standards have not been met.
Compliance Policy Statement
The provincial Employment Standards Code (Code) and Regulation establish minimum
standards for the employment of many Albertans. They also provide ways to resolve disputes
and steps to follow if standards are not met.
Alberta employers and their employees have a shared responsibility to comply with employment
standards legislation. The Code recognizes that employers and employees are best able to
manage their affairs when they understand their respective rights and responsibilities.
The Employment Standards (ES) Branch works to ensure Alberta worksites are fair and
equitable by checking that standards are being followed and by providing information about
standards to employers and employees.
If employers are not following provincial standards, ES Officers will investigate and seek to
resolve the matter. They may use a variety of tools to enforce the standards and they may seek
prosecution of offenders in the Alberta courts. ES also administers appeals made by both
employers and employees.
Employment Standards Enforcement Procedure
ES has several ways to identify situations that may require some form of enforcement.
Circumstances considered when determining the need for enforcement include, but are not
limited to:
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Whether the alleged violation of the Code or Regulation is specific to one individual
only, or might indicate general payroll problems;
The employer’s past compliance history;
Vulnerability of the employee(s) making the allegation (such as youth, temporary
foreign workers etc.); or
Industry-wide practices.
When violations of the Code are identified, ES Officers can enforce the laws in many different
ways. Depending on the circumstances of the investigation or inspection, an officer will use the
most appropriate tools to enforce the legislation, to correct violations and to hold offenders
accountable. Enforcement tools include:
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Notice of Officer
Direction of Officer
Payroll Inspection and Audit
Notice of Inspection Findings Posted
Director’s Demand
Order of Officer
Director’s Order for Compensation/Reinstatement
Court of Queen’s Bench Judgment
Director Certificate
Prosecution
Investigation process
An investigation usually begins with a complaint or an inspection by an ES Officer. It may
involve one or more of the following tools:
Note - The steps followed during a typical investigation are explained in the ES Compliance
Enforcement Process diagram.
1.
Begin the Investigation or Inspection
When an investigation or inspection begins, employers are notified by an officer of the
issues under review and may be provided with suggested ways to resolve the matter.
Officers will conduct an initial review to determine if the employer is following all current
standards. If an officer identifies problems, the matter will proceed through the enforcement
process.
2.
Notice of Officer
In all cases requiring enforcement, officers will issue written demands to the employer to
produce records regarding the employee(s) involved in the investigation.
a.
Notice for Production of Employment Records
When officers identify violations, employers will be sent a letter telling them to
produce payroll documents (which must be maintained by the employer) at a specified
location, date and time. The inspection will typically occur at the worksite or the
employer’s records office. Failure to comply is an offence. See Section 126 of the
Code.
b.
Notice for Production of Information
An officer will demand records relating to other employees to determine if the Code is
being complied with. These demands may be to payroll companies, banking
institutions or other government agencies. See Section 77(1) b & c of the Code.
c.
3.
Notice of Inspection Posted at Worksite
When it is decided that an inspection is required, the employer will be directed to post
a Notice of Inspection provided by the officer. In cases where an employer does not
have a permanent work location, employees may be notified of the inspection in
writing by the employer.
Direction of Officer
Throughout an investigation or inspection, officers may issue specific instructions requiring
an employer to pay employees according to minimum standards. This could include
instructions to make immediate payment to employees when earnings such as wages,
overtime, holiday pay, etc. are due. Failure to do so can result in further enforcement
action against the employer.
Several sections of the ES Code and Regulation involve non-monetary requirements for
employers and employees, such as proper rest periods. Officers may provide formal
directions to an employer to comply with these sections. Failure to comply with a Direction
of Officer can result in further enforcement action against the employer. See Section 79 of
the Code.
4.
a.
Notice to Comply
This tool is used for non-monetary violations of the legislation where an employer
must change a current employment practice, such as providing appropriate
employment after returning from maternity leave.
b.
Cease and Desist Order
This tool is used when an employer is prohibited from taking a certain action and must
stop, such as not maintaining adequate employee records.
Payroll Inspection and Audit
Depending on the circumstances of the case (and after conducting a payroll inspection to
determine if there are general payroll problems), the officer will identify the appropriate type
of audit that may be required to correct violations of the Code or Regulation. There are
three possible types:
a.
Officer-Directed Audit
In cases where the employer has had no past compliance problems, officers will
provide the employer an opportunity to retroactively correct payroll deficiencies under
specific instruction. Employers will be advised in writing of the instructions and the
consequences of a failure to comply with them, including the potential costs of other
audit types.
b.
Crown Audit
Officers will recommend a Crown Audit in cases where an employer does not have
a significant history of non-compliance. Crown Audits can be used when the
employer is not willfully or flagrantly disregarding provincial standards. The
employer must be notified that a Crown Audit will be conducted. Fees are
established in the Regulation and will be charged to the employer. See Section
59(1) of the Regulation.
c.
Third-Party Audit
When an employer has general payroll deficiencies, a past history of noncompliance, or there are a significant number of affected employees, the employer
will be audited by an external or ‘third party’ organization. Upon notice from the
Director (or designate), the fees charged by the auditing company and any costs
associated with the audit will be recovered from the employer. See Section 72 of the
Code and Section 59(2) of the Regulation.
In all situations where an employer fails to pay earnings to employees that are have
been assessed during an audit, an officer will issue an Order of Officer directing the
employer to pay the earnings, plus any fees or costs. See Section 91 of the Code.
5.
Notice of Inspection Findings Posted
Upon the completion of any inspection, the employer will be directed to post the results at
the worksite and/or communicate the results to the affected employees. Officer
instructions, including any directions and/or consequences, will also be included in the
posting.
6.
Director’s Demand
When an officer has reason to believe an employer has failed to pay or will fail to pay
earnings, a demand can be issued to any person or organization that owes money to the
employer. Officers will use this tool when an employer fails to respond to previous orders,
or to secure assets that may otherwise become unavailable. These demands, when issued
prior to a Court of Queen’s Bench Judgment, can be appealed. In the absence of an
appeal, the collected funds can be disbursed to the employee(s). See Section 115 of the
Code.
7.
Order of Officer
If an employer fails to pay earnings to an employee or group of employees, whether
identified through an investigation or inspection, Orders of Officer are issued to the
employer. The order includes fees payable to the government and can be appealed. See
Section 87 of the Code.
Officers will identify whether a single employer or group of employers are responsible for
the unpaid earnings. See Section 80 of the Code.
8.
Director’s Order for Compensation/Reinstatement
Certain violations, such as improper termination of an employee, may only be dealt with by
the Director of Employment Standards. In these matters, the Director will issue orders to
pay or reinstate the employee. See Sections 86 and 89 of the Code.
9.
Court of Queen’s Bench Judgment
Either an Order of Officer or Director can be filed with the Court of Queen’s Bench as an
official judgment. It therefore becomes enforceable with that court. These judgments are
referred to a collection agency if necessary. Note - judgments that are the result of
enforcement agreements with other provinces are also referred to collection agencies.
Additional costs associated with collections can be charged to the employer. See Section
110 of the Code.
10. Director Certificate (for Unpaid Wages)
Corporate directors are personally liable for unpaid wages once it has been determined
that the corporation itself is unable to pay earnings. These Director Certificates can be
appealed, or they will be filed with the Court of Queen’s Bench as judgments. See Section
112 of the Code.
11. Prosecution
Prosecution through the Alberta courts is the final step to be taken when all other
enforcement tools have been exhausted. Once a prosecution has commenced, Alberta
Justice takes control of the matter and determines how to proceed with prosecution in
accordance with its guidelines.
Other Employment Standards links
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Employment Standards Compliance Enforcement Process diagram
Employment Standards Code
Employment Standards Regulation
Employment Standards Fact Sheets
File a Complaint