Working for Workers Act will cause big changes in Ontario
By John Hyde
Late last month, the Ontario government introduced Bill 27, otherwise known as the Working for Workers Act, 2021.
The proposed legislation is a game-changer for employers, as it would impact their policies, contracts, and overall workplace.
What follows is a summary of the most significant legislative changes, as well as an examination of how they will impact employers.
Amendments to the Employment Standards Act
Disconnecting from work policies
Under the proposed legislation, employers with 25 or more employees will be required to have a written policy addressing their workers’ right to disconnect from their job at the end of the workday. Bill 27 defines the term “disconnecting from work” to mean not engaging in work-related communications, including emails, telephone calls, video calls, as well as sending or reviewing other messages. In this way, employees are to be free from the performance of work at the end of their workday.
For employers, the requirement to have a policy recognizing an employee’s right to disconnect from the workplace represents an important change to the employment relationship. Employers would be forced to reconsider the expectations they have of their workforce. At the same time, employers would need to consider how a collective right to shut off from the workplace after a certain time may impact their operations.
The banning of non-compete agreements
The proposed legislation also prohibits non-compete agreements, or contracts which contain such agreements. In these types of agreements, an employee is prohibited from engaging in any business, work, occupation, profession, project, or any other activity that competes with an employer’s business after the employment relationship ends.
That said, the Ontario government has considered an important exception to the proposed ban. The prohibition would not apply in cases where:
- the employer sells their business (or part of their business), and subsequently enters into an agreement where they cannot engage in any competing activity with the purchaser’s new business after the sale; and
- the seller becomes an employee of the purchaser immediately after the sale.
With the proposed banning of non-compete agreements, employers may be tempted to implement stronger non-solicitation clauses that contain more robust prohibitions. A non-solicitation agreement only prohibits former employees from contacting the employer’s clients or employees for business purposes after their employment ends.
However, employers need to know that non-solicitation clauses which are overreaching and go beyond limiting a departed employee’s ability to solicit clients and customers will likely be viewed as non-compete agreements in disguise by Canadian courts.
Employers will be required to use licensed temporary help agencies and recruiters
The proposed legislation also requires temporary help agencies (THAs) and recruiters to be licensed prior to operating in the province. This is also significant for businesses because the legislation would prohibit Ontario employers from knowingly using unlicensed THAs or recruiters. Employers will need to be increasingly diligent when agreeing to accept workers from various agencies. Stated differently, employers will not be able to turn a blind eye to the actions or credentials of those supplying workers.
Amendments to the Occupational Health and Safety Act (OHSA)
Under the proposed legislation, workplace owners would be required to provide washroom access to workers making deliveries or picking up items for delivery to other locations. However, employers should know that washroom access is not required:
- if allowing the worker washroom access would not be reasonable or practical in light of health or safety concerns;
- if allowing the worker washroom access would not be reasonable or practical in light of all other circumstances, including the nature of the workplace, the type of work performed, the conditions of work, the security of any person, and the location of the washroom; or
- if the washroom is either in a dwelling, or can only be accessed through a dwelling.
Amendments to the Workplace Safety and Insurance Act, 1997 (WSIA)
In certain circumstances, the proposed legislation would allow the Workplace Safety and Insurance Board (WSIB) to distribute surplus amounts from its insurance fund to various employers.
Workplace laws are always changing, and the Ontario government’s Working for Workers Act, 2021 looks to continue this trend.
For employers, ensuring they remain on the right side of the law should be the principal goal at all times.
John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.
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