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Ontario tightening rules around mass layoffs to protect remote workers

Ontario is tightening the rules around mass layoffs in response to the increase in remote worker and a changing economy.

Under the proposed changes, employees who work solely from home would be eligible for the same enhanced notice as “in-office” and other employees in mass layoff situations.

“This would ensure that remote employees receive the same eight week minimum notice of termination or pay-in-lieu, preventing companies from taking advantage of them,” it said in a press release.

It said the pandemic has initiated what it called “the largest shift to remote work in history” with 2.2 million people working from home, including about 1.4 million who do so on an exclusive basis.

‘Timely recognition’

Stuart Rudner, an employment lawyer and founder of Rudner Law, said the changes are a timely recognition of the changing nature of the workplace.

“It is encouraging to see some steps being taken to protect workers that are entirely remote,” he said. “We have to be mindful that in Ontario, we are currently governed by the Employment Standards Act, 2000 — emphasis on 2000 — and a lot has changed in 23 years.”

Stuart Rudner is the founder of Rudner Law and the author of You’re Fired: Just Cause for Dismissal in Canada.

The days of requiring that ESA posters be put up on a bulletin board in the lunchroom are gone with so many people working from home, he said.

“The common law and legislation will have to adapt to the new reality,” said Rudner.

No commute, no penalty: Labour minister

Monte McNaughton, Ontario’s labour minister, said whether workers commute to work every day or not shouldn’t determine what they’re owed.

“No billion-dollar company should be treating their remote employees as second class,” said McNaughton. “The future of work is here, and our government will continue to lead the country in ensuring workers have the protections they need to find better jobs and earn bigger paycheques in the 21st century economy.”

And to go back to the poster Rudner referenced, the province is proposing regulatory changes that would require employers to provide new hires with information in writing about their job, including:

• pay
• work location
• hours of work
• and the date by which that information needs to be provided (e.g., before their first shift).

The move was lauded by Communitech, an organization that helps tech startups grow and succeed in Canada.

“We applauded Minister McNaughton for taking steps to ensure that all workers in Ontario are afforded the same rights and protections, regardless of their workplace setting,” said Chris Albinson, CEO and president of Kitchener, Ont.-based Communitech.

The province said the proposed changes built on the actions it unveiled in the Working for Workers Act, 2021 and 2022.

Quick facts about the changes

• The ESA’s notice rules for mass termination apply when the employment of 50 or more employees is terminated at an employer’s establishment within a four-week period. In the case of a mass termination, an employee could be entitled to eight, 12 or 16 weeks’ notice, depending on the number of employees terminated.
• The proposed changes, if passed, would broaden the definition of “establishment” to include employees’ remote home offices, making employees who solely work remotely from home eligible to received enhanced notice.
• Generally, under the ESA, an employee who is terminated after five years of service would be entitled to five weeks of paid notice or pay-in-lieu under individual termination rules, but if that employee is one of 100 employees terminated at an employer’s establishment within a four-week period then that employee would be entitled to eight weeks of paid notice or pay-in-lieu.
• An Ipsos survey conducted on behalf of the Ontario Workforce Recovery Advisory Committee revealed that 89 per cent of people in Ontario believe that the workplace has changed permanently due to COVID-19 and the province needs to act to update employment regulations, as a result.