Proposed legislation has something for employers and workers

By Tony Poland, LegalMatters Staff • The provincial government’s proposed Working for Workers Act, 2021 offers two key provisions which should be beneficial to both employers and employees, says Toronto-area employment lawyer Brittany Taylor.

Taylor, a partner at Rudner Law, says a prohibition on non-compete clauses and a regulation requiring employers with 25 or more workers to have a right to disconnect policy should be valuable additions to labour laws already in place.

Right to disconnect legislation would be the first in Canada and is especially timely, she says.

“This conversation was coming long before the pandemic hit. The fallout from COVID-19 just made it very clear that employees are actually working much more than we think they are,” Taylor tells LegalMattersCanada.ca. “The right to disconnect is not just a pandemic issue. This is a technology issue. Everyone has a cellphone. Everyone has email on their cell phone. Everyone is always accessible to some extent. The expectations of employers really shifted in a short time.”

Pandemic ‘changed the way we work’

Noting the pandemic “changed the way we work,” Monte McNaughton, Minister of Labour, Training and Skills Development, introduced the proposed legislation last month saying it “shows Ontario is ready to lead the way into the workplaces of tomorrow, and create the conditions that will make talented, innovative people want to work in our great province.”

“Our government is working for workers. To do so, we must act swiftly and decisively to put workers in the driver’s seat and begin rebalancing the scales,” McNaughton says.

Right to disconnect legislation is not new. France implemented a policy several years ago and the concept is on the Canadian government’s radar.

Earlier this year, then-Minister of Labour, Filomena Tassi established a Right to Disconnect Advisory Committee to explore solutions to an issue that they believe carries health risks for workers. 

“I see this as a potential storm that is brewing in labour and so these converging trends are happening now, and they’re becoming more rapid, more pronounced,” Tassi told CTV News. “For us, it’s ensuring that we are understanding what’s happening.”

Proposal would complement the Employment Standards Act

Taylor says the Ontario government’s proposal would complement the  Employment Standards Act, 2000 (ESA), which contains provisions limiting the hours employees can work along with guidelines on mandatory breaks. 

“We can expect there will be exceptions to the right to disconnect rules, such as for managers or professionals such as lawyers and doctors,” she says.

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The policy could help ensure a more equitable work-life balance, Taylor says.

“During the pandemic, there was a fear that because employees were at home, they were not going to work as hard and were not going to get as much done,” she says. “What we have found is that the opposite is true. People are actually working much more and too many are never really not working because they are always connected.

“This proposed legislation really just expands on those hours of work requirements we have in the ESA but are perhaps not being respected in the way that we would hope,” Taylor adds. “The policy appears to be trying to approach the issue from a different angle where the emphasis is more about respecting work-life balance.”

She says while the concept “comes from a good place, we are really going to have to wait to see how it works in practice.”

“It sounds like a great idea but are there downsides to it?” Taylor asks.

She says she is curious to see if new legislation will change informal rules that now benefit employees.

May negate the largest benefit of remote working

“One of the advantages of working from home is having a bit more flexibility. For example, you might be able to take a two-hour lunch to go to a doctor’s appointment and make the time up at the end of the day,” Taylor explains. “If the right to disconnect policy is drafted in a way that states employees work a straight eight-hour shift with the usual mandatory breaks and they are not allowed to work outside of that, it takes away one of the largest benefits of working from home.”

Depending on how it is drafted, the legislation could have benefits to employers as well, she says, especially when it comes to unauthorized overtime.

“If the expectation is that people are not going to be working outside of set hours, employers will have greater certainty about how much their employees are actually working. In addition, if there is a policy stating that employees should not be working after hours, then the employer can discipline for breaches of that policy,” Taylor says. “One of the positive features of this regulation for employers is that it prompts them to create a policy, which then allows them to say, ‘There’s a policy, you have to get approval before working excess hours or overtime.’”

She says as an employment lawyer she was pleased to see that the proposed legislation includes a prohibition on non-compete clauses.

Dealing with non-compete issue can be frustrating

“We still spend a lot of time dealing with the issue of the enforceability of non-competition clauses in employment agreements and it is frustrating because these clauses are almost never upheld in court,” Taylor says.

She says even though the courts generally do not recognize the clauses, they can cause problems for those workers who have the provision written into their employment contract.

“There have been a number of times where I have advised a client that while a non-compete clause may not be enforceable, it still presents a threat,” says Taylor. “If the client leaves their job and starts working for a new employer, their former employer could send them a cease-and-desist letter and ultimately, if they choose, pursue legal action. That employee is going to have to spend time and pay the legal fees to defend themselves against that claim until a judge makes a determination of whether the clause was enforceable. Even if the employee is successful, it is unlikely they will recover all of their legal fees and the damage to the new employment relationship may already be done.

“This proposed act is affirming what the law is already telling us. It will eliminate this song and dance that we have been doing.”

She says the employment world has seen a myriad of court rulings and legislation since the start of the pandemic and the Working for Workers Act, 2021 will add yet another layer.

“This has been an extraordinary time. Typically, the law changes slowly,” Taylor says. “There have been so many changes happening so quickly that it has been an overwhelming period for employers and employees, for different reasons.”

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