Theorizing Front-Line Enforcement

The broader literature in public administration and law and society tends to adopt Lipsky’s (Reference Lipsky1980) original argument that front-line public decision-makers have considerable power to shape the application of policy and the law; in other words, more than merely administering fixed laws and policies, front-line workers, in effect, make policy and law through their decision-making.^{Footnote 3} This insight has informed a variety of investigations and analyses of front-line decision-making. Some researchers have identified the diversity in discretionary styles adopted by front-line decision-makers (Kelly Reference Kelly1994; May and Wood 2003), while others have dug deeper and tried to understand why different enforcement models are adopted and what that means for decision-making. From the enforcement model perspective, the question is, ‘how is discretion shaped and constrained by the organizational rules, cultures and structures in which the officers are operating?’ Enforcement model trends have been drawn along national lines (Piore and Schrank Reference Piore and Schrank2008; Howe, Hardy and Cooney Reference Howe, Hardy and Cooney2013); but investigators more often seek to identify the ways in which agencies’ values, resources, and administrative rules and procedures within a given national or regional context constrain and shape discretionary decisions (Frank Reference Frank1984; Gormley Reference Gormley1998; Snider and Bittle Reference Snider, Bittle, Gobert and Pascal2011).

However, while the literature identifies a wide range of potential organizational and political influences on front-line enforcement decisions (Pottie and Sossin Reference Pottie and Sossin2005), relatively little attention has been directed towards developing a conceptual framework for differentiating types and levels of decision-making within a given enforcement process and around particular enforcement priorities (Bovens and Zouridis Reference Bovens and Zouridis2002). One central challenge revolves around the definition and understanding of the concept of discretion, which is widely used to capture what analysts mean by front-line decision-making power. The difficulty is that many analysts provide little discussion of what they mean by discretion; moreover, there is significant variability in the ways in which the concept of discretion is understood. For some analysts, discretion encompasses virtually every decision or action that front-line officials make, whereas for others it is more narrowly defined, entailing powers granted specifically in the applicable statutes (Carroll and Siegel Reference Carroll and Siegel1999; Bovens and Zouridis Reference Bovens and Zouridis2002). Definitions are also very different conceptually in the sense that while some focus on the decision-making powers granted in law and policy, others focus on the extent to which the laws and policies are rigidly or loosely followed by front-line officials (Levesque Reference Levesque2011; Portillo and Rudes Reference Portillo and Rudes2014). Indeed, the question for many analysts adopting a more bottom-up model of discretion is not how policy or law constrains discretion but rather how discretionary processes, in effect, make policy and law (Lipsky Reference Lipsky1980). Thus, scholars are left with a shared acknowledgment of the importance of front-line decision making without adequate precision in terminology or analytical tools to explore the powers and constraints that shape these decisions, and, consequently, on-the-ground law and policy.

Given the variety of definitions, existing attempts to categorize types of discretion have also yielded some very different meanings. For example, focusing on social welfare administration, Carroll and Siegel (Reference Carroll and Siegel1999) distinguish policy discretion from administrative discretion, arguing that the former refers to the capacity of the administrator to change or alter programs to address client or administrator needs and circumstances, while the latter speaks to the ability of front-line administrators to control the ways in which they do their work. Using the concept of policy discretion, this time in regards to the processing and approval of immigration applications, Bouchard and Carroll (Reference Bouchard and Carroll2002) identify three levels of policy discretion—procedural, which addresses the discretion used to gather information about the applicant; selection grid, which addresses the use of prescribed selection criteria to assess newcomers; and final decision discretion, which addresses the overall final judgments made by officers. While the distinctions made by Bouchard and Carroll focus on the capacities of officers to make decisions at different points in the process within the statutory and policy frameworks, Pottie and Sossin (Reference Pottie and Sossin2005) categorize discretion in terms of the source of constraints placed on decisions. They identify substantive discretion as the decisions made within the context of statute and policy prescriptions and associate procedural discretion with the ways in which administrative structures and procedures, such as staffing, office design, communications, and information, constrain and shape decisions.

These variations, and the accordant lack of conceptual clarity, make it difficult to identify, compare and link the different patterns of enforcement decision-making to the different types of legal or social issues and contexts being studied. At the same time, while many analysts recognize that rule interpretation and rule adherence are both key to many conceptions of discretion, what is often missing in the literature is a detailed examination of the formal constraints on decision-making imposed by the legislation, legal decisions, and formal agency or government policies. As this omission implies, analysts have failed to map out systematically the starting points of discretion and judgment as defined in enabling legislation. In particular, as we argue below, a clearer understanding of front line decision-making requires that we attend to the concepts of ‘powers’ and ‘duties’ and the distinction between them. While we emphasize the importance of looking at how front-line staff may make law and policy through their decisions on the ground (Lipsky Reference Lipsky1980), one of our contentions is that a top-down map of decision options, rules, and guidelines as defined in law and administrative policy is an essential starting point for any comprehensive analysis of the overall context in which decisions take place (Bovens and Zouridis Reference Bovens and Zouridis2002).

Such a precise analytical framework is particularly important for understanding the impact of front-line decision-making on disempowered populations who are heavily dependent on statutory rights and their enforcement. For that reason, a study of decision-making by front line employment standards officers is particularly timely. In Ontario, and Canada more broadly, as well as in Australia, the United States, and other common law contexts, there has been a growing public discourse, supported by a considerable body of empirical evidence (Vosko Reference Vosko and Vosko2006, Reference Vosko2007, Reference Vosko2010; Lewchuk, Clarke, and de Wolff Reference Lewchuk, Clarke and Wolff2011; Gleeson Reference Gleeson2013) concerning the growth of insecure, low-wage employment and the resulting increase in economic inequality (for a media commentary, see for example, Monsebraaten Reference Monsebraaten2013). A growing body of scholarship examining these developments has documented the great reluctance of workers confronting high levels of insecurity to raise employment problems (Vosko et al. Reference Vosko, Tucker, Thomas and Gellatly2012, Reference Vosko, Grundy and Thomas2014; on the United States, see Weil Reference Weil2010). The political impact of the public recognition of precarious employment has arguably been reflected in recent changes to Ontario government policies, specifically ES reforms (e.g., on temporary employment agencies), and MOL policies including the expansion of proactive enforcement that targets industries with high ratios of precarious employment (Vosko et al. Reference Vosko, Tucker, Thomas and Gellatly2012).

To be attentive to the different points where discretion and judgment are applied in the employment standards enforcement process, and the different levels of officer discretion and judgment exercised, there are two necessary preliminary steps to this investigation. First, we need to establish clear definitions of our concepts; second, we need to identify more precisely the quality and the scope of discretion and judgment at specified decision-points.

A Framework for Mapping Discretionary Decisions and Judgments

The Ontario ESA contains fifteen main parts or sections that define the different standards, such as wage payment and public holidays, and five sections that deal with enforcement. Reflecting an increased attention to precarious employment, a new section was added on Temporary Help Agencies (Part XVIII.1) in 2009, which includes both standards and enforcement provisions. Under the legislation, the Minister of Labour, who is the Minister responsible for the Act, must appoint a Director to manage its administration. Employment Standards Officers (ESOs) are explicitly identified as the persons appointed to enforce the Act and, as such, constitute the Ministry’s enforcement arm (Employment Standards Act, SO 2000, c 41, s 86(1)); as discussed above, it is their decision-making that is the subject of our analysis.

ESOs are divided into claims-processors, ESO1s, and ESO2s (those workers who conduct investigations and those who conduct investigations and proactive inspections, the latter of which we bracket in this article). Claims processors and ESO1s are stationed in Ontario’s claims-processing office, while ESO2s work in regional offices across the province. All claims processors and ESOs are trained in the ESA and through the Administration Manual for Employment Standards (MOL 2013), discussed below. According to the AMES, “the role of the employment standards officer is to obtain compliance with employment standards legislation” (MOL 2013 1.8.1).

In drawing on the Ontario ESA to develop a framework for analyzing decision-making, we begin by outlining the legal concepts that shape decision-making: these are, first, powers and duties and, second, discretion and judgment. The purpose of this mapping exercise is to alert readers to the legal framework constructed to guide the work of enforcement officers. Without a proper understanding of this framework, bottom-up empirical investigations of how front-line officers work are liable to misinterpret or oversimplify the interaction between law on the books and law in action.

As is the case with most regulative law, the legislation designates the roles of the Ministry and its ESOs in two distinct ways that speak directly to discretion and judgment: “duties” specify what the Ministry and officers must do in certain circumstances, and “powers” give officers and the Director of the Ministry the capacity or power to choose between different courses of action. Section 89(1) makes this distinction very clearly under the title “Powers and Duties of Officers”: “An employment standards officer may exercise powers conferred upon employment standards officers under this Act and shall perform the duties imposed upon employment standards officers under this Act.” As evident in this section, duties are broadly identified by the use of the word “shall” while powers are identified by the use of the conditional word “may.” The word “may” connotes the existence of discretion, while the word “shall” imposes a duty to take a particular action if specified conditions are present.

It is also important to be attentive to hierarchical arrangements of powers and duties since, quite often, more senior officials will be given the power to make decisions that limit the discretion and judgment of those subordinate to them. Significantly, for our purposes, the power to make policy is usually located at higher levels of the bureaucracy, such as the Director. Section 88(2) gives the Director a discretionary power to “establish policies respecting the interpretation, administration and enforcement of this Act.” Once in place these policies are binding on ESOs and other front-line staff. Section 89(2) of the Act specifically imposes a duty on ESOs to “follow any policies established by the Director.” In addition to the Director’s power to issue binding policies, binding regulations may also be promulgated by Cabinet; these, too, may restrict the scope of ESO discretion and judgment.^{Footnote 4}

As noted above, by discretion we mean the power to choose between legally available alternatives and by judgment we mean the power to decide questions of fact and law. While the legal distinction between duties and powers and discretion and judgment is reasonably clear at a conceptual level, it does not capture fully the complexity of front-line officers’ decision-making and the ways in which discretion and judgment are intermingled. It is for this reason that the Supreme Court of Canada warned that it is “inaccurate to speak of a rigid dichotomy of ‘discretionary’ or ‘non-discretionary’ decisions” (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, para 54)^{Footnote 5}. This complexity is illustrated by the example of enforcement decisions having to do with the minimum wage.

The general minimum wage in Ontario is not set by statute, but by regulation. At the time of writing, the general minimum wage is $11.00 per hour. There is no room for debate over what the standard is. The regulation deprives the ESO of any discretion or judgment in the matter. However, the implementation of this standard may require the interpretation of other sections of the ESA or its regulations, which are less straightforward. For example, by statute, the ESA only applies to employees; as such, a person who is not an employee is not entitled to the minimum wage. The question of who is an employee is a question of law or mixed fact and law, and so, in principle, the ESO has no discretion in determining who is or is not an employee. However, clearly there is considerable scope for judgment since the legal category of employee is a fuzzy one and, at the margins—such as construction and building maintenance contractors who frequently subcontract to individual immigrant workers—there is often room for disagreement about whether a particular individual or group of individuals fall within the category (Fudge, Tucker, and Vosko 2003). Moreover, the judgment is a complex one since not only is the legal test somewhat open-ended, but it also requires the decision-maker to consider a large number of facts in reaching a conclusion. Although in some marginal cases there may not be a uniquely correct answer to the question of who is an employee, it would be incorrect to classify the decision as an exercise of discretion. The ESO has a duty to make a legal and factual judgment about the worker’s status, a judgment that has profound implications for a worker’s access to ES enforcement.

As this example demonstrates, the scope of discretionary power and judgment varies considerably, from the very narrow to the very broad, although neither will ever be absolute since the notion of absolute discretion or unlimited judgment is inconsistent with the notion of the rule of law in a liberal democracy. The complexity of decision-making involving discretion or judgments is also variable. Sometimes the complexity is built in by the legislation. For example, determining whether there are “reasonable grounds to believe that an employer has contravened this Act” (Employment Standards Act, SO 2000, c 41, s 102(1)1) involves complex judgments about the facts and whether they meet an imprecise legal standard. In other instances, the complexity derives more from the context. For example, in determining when it is appropriate to investigate an employer who has an employee living on the premises, as in the case of live-in domestics (Employment Standards Act, SO 2000, c 41, s 102(1)4), the officer presumably must consider resource limitations and possible backlash if too many law-abiding citizens are summoned to meetings with government officials without reasonable and probable cause. In claims involving precarious employment contexts, judgment is also complicated by the frequent difficulty in determining the facts, since employment records and other evidence are often incomplete or missing. Discretion is also called for in this context, as the officers must decide whether any additional investigative steps or efforts are required but, in the final analysis, they must make judgments on the basis of best evidence available.

Thus, working through the distinctions between the concepts outlined above and the simultaneous acknowledgment of their complexity, both on the books and in practice, we identify and categorize moments of discretion and judgment in three core stages of the Ontario ES complaints process (see Table 1). We categorize the “moments” surveyed using a scale of low, medium, or high discretion or judgment (see Table 2). Low discretion or judgment is identified as those moments in which officials have a limited range of options between different actions or interpretations and where the decision is a relatively simple one. Medium discretion or judgment, in contrast, involves moments where officials are accorded a limited, but more significant range of choice between actions and where the complexity of the decision is greater. Finally, in high discretion or judgment moments, officials have a wide and significant scope for action to be taken or possible conclusions that can be reached, with very little direction and/or considerable complexity to making the choice or judgment.

Table 1 The ES Enforcement Process

#1–3 = claims processors; #4–5 = ESO1s; #5–8 = ESO2s.

Table 2 Levels of Discretion and Judgment

In addition, we are also attentive to the significance of a decision in terms of its impact on claimants generally and on workers in precarious employment in particular. For example, complex judgments about employment status are extremely significant to workers in precarious employment, but even a relatively simple decision about whether a worker is employed growing mushrooms, for example, and so whether she or he is exempt from hours of work protections, can have profound consequences. As this example also suggests, there is no necessary correlation between the complexity of a decision and its significance. Thus, our scale is based on a two-pronged assessment: first, the range of options available to an officer; and second, the significance of the decision based on available options. We suggest that a focus on significance is important for work that aims to link in-depth policy and legal analyses with their broader social implications.

Mapping the Enforcement Process

In the remainder of this investigation, we utilize textual and content analysis (Krippendorff Reference Krippendorff2004) to identify and differentiate points in the claims process where three different categories of front-line staff, claims processors, and employment standards officers (ESO1 and ESO2) exercise discretion or make legal and factual judgments. Since our focus is to better understand and map the degree and complexity of discretion and judgment available to MOL front line staff and how such decision-making may impact workers in precarious jobs, we are particularly interested in whether staff actions are described using either ‘permissive’ or ‘mandatory’ language; that is, whether front line staff are granted powers or duties.

The primary documents we analyze are the Employment Standards Act itself and key policy and procedural materials used by the MOL Employment Standards Branch. These latter documents include the Employment Standards Act Policy and Interpretation Manual (PIM) (MOL 2009) and the AMES. The manuals reflect the priorities of the Director of Employment Standards, who is charged with setting out branch policy according to section 88(2) of the ESA, 2000.

The PIM is a publicly available reference guide that details how the ESA 2000 is interpreted, administered and enforced. As a public document, the PIM provides the Ministry’s official interpretation and application of the act. The AMES is an internal Ministry document that offers procedural guidance to staff regarding how to carry out ES activities. The PIM and the AMES represent two related resources that often refer back to each other. Both are guides designed to ensure that the ESA is applied and administered consistently across the province of Ontario.

As noted in the introduction, we recognize that actual practices may deviate from the way they are described in the manuals, but a key objective behind the mapping is to prepare the critical ground work for field research and analysis of actual front-line decisions made by ESOs.

In what follows, we identify moments of discretion and judgment in three core stages of the complaints process (see Table 1): first, ‘claims processing’ in which claims processors determine whether a claimant has taken the specified steps prior to submitting a claim (Step #3); second, the ‘initial investigation’ carried out by ESO1s who collect and analyse evidence to prepare the claim for further investigation or close the claim (Step #4); and third, the pursuance of visits, meetings, and facilitated settlements as a means of further investigation and/or achieving voluntary compliance undertaken exclusively by ESO2s (Step #6).

As demonstrated, moments of discretion and judgment are not evenly distributed across the stages of the complaint process but rather cluster in certain key stages. Yet, in general, there is evidence that officers have considerable decision-making powers, which are directly relevant to precarious employment situations, at several points in the process. The significance of each step with regards to the nature and scope of the discretionary decisions and judgments is also mapped using our analytical framework.

Investigations, Meetings, and Facilitated Settlements (ESO2s)

As pointed out above, ESO2s are charged with investigating the more difficult cases along with selected standards, which are seen by the Ministry as high priority or more complex. While many of the ESO2 investigation and decision processes parallel those of the ESO1s, the investigations tend to require greater depth and activity, in part because they are responsible for making a final decision. As such, the ESO2s have the highest level of discretion and judgment. However, a closer examination of their work demonstrates why it is important to consider different forms of decision-making and not just levels of decision-making power. The duties and powers of officers not only shape the decision-making process; they are often intermingled in ways that create limited or constrained forms of procedural discretion. An interesting example of this arises around whether officers decide to deal with claims entirely through the phone or email or through meetings and settlements, as defined in Section 102. 1 of the ESA shown below:

102.1 (1). An employment standards officer may, after giving at least 15 days’ written notice, require any of the persons referred to in subsection (2) to attend a meeting with the officer in the following circumstances:

1. 1. The officer is investigating a complaint against an employer.

2. 2. The officer, while inspecting a place under section 91 or 92, comes to have reasonable grounds to believe that an employer has contravened this Act or the regulations with respect to an employee.

3. 3. The officer acquires information that suggests to him or her the possibility that an employer may have contravened this Act or the regulations with respect to an employee.

4. 4. The officer wishes to determine whether the employer of an employee who resides in the employer’s residence is complying with this Act.

The section begins by granting the ESO a discretionary power: the ESO “may” require a person to attend a meeting.^{Footnote 7} However, the discretion is limited in various ways. First, there is a procedural limitation on its exercise: a fifteen-day notice must be given before a person can be required to attend a meeting. This imposes a duty on the ESO to give notice if she wishes to have a meeting. The notice must also contain specific information including a list of the alleged contraventions, a list of issues to be addressed, a list of documents required, and an invitation to bring any evidence to support their position.

But that is only the beginning. The circumstances in which a meeting may be required are phrased in very different ways. Paragraph 1 involves a simple question of fact: is the officer investigating a complaint or not? The other circumstances involve more complex judgments. Paragraph 2 requires the ESO to determine, in the course of an inspection, whether there are reasonable grounds to believe the employer has contravened the Act or regulations. This more complex judgment involves a mixed question of fact and law, where the legal standard for “reasonable grounds to believe” is fuzzy. Paragraphs 3 and 4 require open-ended judgments. Has the ESO acquired information that suggests the possibility of a contravention or does the officer wish to determine whether the employer of an employee who resides in the employer’s residence is complying with the Act?^{Footnote 8}

Parties who fail to attend a meeting to which they are summoned or to provide evidence not only contravene the act and, in principle, at least, face the possibility of being prosecuted, but also lose an opportunity to tell their side of the story. The officer is then empowered to make a decision on other evidence, including factors that the officer considers relevant (Employment Standards Act, SO 2000, c 41, s 102(10) and 102.1(3)). The AMES stipulates that “it is within the officer’s discretion whether to reschedule the meeting or to proceed with the investigation using whichever method the officer deems appropriate.” However, officers must reschedule meetings and meeting locations to accommodate persons on certain grounds, including the need for a translator and conditions involving the human rights code (e.g. accessibility). While there are no policy references to other circumstances such as transportation problems or work conflicts, both issues that could be more common among lower wage workers involved in part-time or temporary employment (MOL 2013, 5.6.10.5), such conditions are open to officer discretion. All these decisions are key moments where officer discretion and judgment are intertwined in ways that can have significant implications for precarious employment claims and claimants.

Although the Ontario government signalled its interest in enabling more officer-facilitated settlements of claims when it provided new powers to ESOs in its 2010 reform of the ESA, the question of whether the officer decides to facilitate a settlement within a meeting is left officially to their discretion. The AMES simply says, “if the officer wishes,” the parties can be advised that, “the officer may attempt to facilitate a s.101.1 settlement (MOL 2013, 5.6.10.5). While there are procedural guidelines on how to facilitate settlements, there are no decision rules provided on when facilitated settlement should be attempted, and no parameters are provided in terms of desired outcomes, leaving wide scope for discretion. To the extent that such settlements may lead to early resolutions and also, significantly, to reduced payouts of claims, this scope is again potentially significant for precarious workers who are low wage or more likely to agree to a settlement for other reasons related to socio-economic location and precarious employment.

Thus, the meetings and settlements components of the ESO2 investigation appear to be an area of relatively high discretion in that neither the legislation nor the AMES directs ESOs to necessarily facilitate a settlement in these meetings, nor is the officer directed in how to facilitate such an agreement. In sum, as can be seen in Table 3, which summarizes key features of the three moments surveyed above, there are varying levels of discretion and judgment granted to different officers during the employment standards enforcement process. However, despite these differences, our research has shown that all officers are responsible for making important discretionary decisions or judgments. Indeed, even in instances where officers have a relatively low degree of discretion and judgment, the decisions that they do make can have an outsized impact on workers in precarious jobs.

Table 3 Key Moments by Levels of Discretion/Judgment

Implications for Collecting and Analyzing Data on Front Line Decisions

Our map of the employment standards claims and investigation process was instrumental in shaping our current research activities in the field. Although broadly framed to capture the full range of front line decisions in ES enforcement, our recently completed interviews were guided by our detailed understanding of the legislated and policy-structured decision-making points in the claims assessment and investigation processes. The results of this research will be reported in subsequent publications, but, by using the framework described here, we were able to attend to officer descriptions and explanations of their decisions with a greater understanding of the scope and complexity of those decisions, while also allowing us to hone in on decisions which were especially consequential for precarious employment claims. The conceptual distinctions between powers, duties, judgment, and discretion and their mapping onto the steps of the claims process were key to the way we conducted the interviews, as they allowed us to identify and understand when officers were describing their dutiful application of rules and when they were talking about what they understood as the range of the decisions they could make in different situations and contexts. This anticipation cued us to when and where we needed to probe for additional insights into the rationales underlying their discretionary choices and their judgments and interpretations and when to move the interview forward to different stages in the decision process.

The conceptual distinction between discretion and judgment was also important, as we came to understand that the foundations of these two types of decisions were often different, and we therefore knew to look for different kinds or levels of explanations. For discretion, it was often a question of understanding what the officers saw as the finite choices available to them. For judgment-based decisions, there was a different level of complexity and nuance tied to the need to interpret and make sense of a greater range of possibilities. As we accumulated more interviews, we also began to recognize certain differences between officers in how and why they made certain decisions, and we began to detect themes around how those differences were constructed by them, the significance of which we might have missed otherwise, or at least misunderstood. Most notably, we were able to recognize when decisions and actions were within or outside the parameters of duties and powers—that is, to reconcile and distinguish discretionary decisions that are granted under law and legally mandated policy from decisions which ‘stretch’ or even ignore the rules (Portillo and Rudes, Reference Portillo and Rudes2014).

This approach affirms Lipsky’s (Reference Lipsky1980) original point that front-line decision-makers are also making, rather than just administering or applying fixed, laws and policies through the exercise of their powers. Yet, as suggested by our distinction between discretionary decisions authorized by the law and legal judgment involving the interpretation of law and finding of fact, our framework aims to open up the conceptual space for nuanced analysis of the process of how front-line public officials may make law and policy. We suggest that this top-down approach provides a useful analytical grounding for research into front-line enforcement, and front-line decision-making, more generally. Indeed, scholars’ ability to identify and understand the bottom-up making of policy by front-line staff is arguably enhanced by clearer understandings of, and differentiation between, the scope and complexity of discretion and judgment, as defined in law and policy. Just as important, these distinctions may allow us to elucidate different conditions underlying the various types of decisions and their complexity.