Time will tell if new worker protection legislation is effective

By Tony Poland, LegalMatters Staff • The provincial government’s newly minted Working for Workers Act, 2021 (WWA) introduced changes intended to create a better work/life balance for employees but the devil is in the details and some of those details are not yet known, says employment lawyer Jeffrey M. Andrew.

Andrew, a partner with Cavalluzzo LLP, says the Act, which received Royal Assent on Dec. 2, offers two key provisions among others — the right to disconnect and a ban on non-compete clauses. However, he notes there was not much fanfare following the announcement and, with a six-month deadline to implement the right to disconnect policies and little hint of what is expected, it is too soon to tell if the government has hit the mark.

“There wasn’t a huge outpouring of praise or disapproval either,” Andrew tells LegalMattersCanada.ca. “Much will depend on the details of each policy and the legislative guidance that follows. It could well be an effective piece of legislation but until we learn more, it is really too soon to tell.”

Provision aims to address concerns of remote work

In a statement following the passage of the WWA, the government says it is working to ensure “labour laws keep pace with the acceleration of new technology, automation, and remote work,” introducing measures to make it easier for employees to spend time with loved ones.

“Our government is working for workers every day to help them earn bigger paycheques, stay safe, and have better opportunities. We are determined to rebalance the scales and put workers in the driver’s seat of Ontario’s economic growth while attracting the best workers to our great province,” says Monte McNaughton, Minister of Labour, Training and Skills Development.

The Working for Workers Act will:

• require employers with 25 or more employees to have a written policy concerning employees disconnecting from their job at the end of the workday. A first in Canada, according to the ministry;
• ban the use of non-compete agreements that prevent people from exploring other work opportunities and advance in their careers. Another first in the country the ministry states;
• help remove barriers, such as Canadian experience requirements, for internationally trained individuals to get licensed in a regulated profession and get access to employment that matches their qualifications and skills; and
• require recruiters and temporary help agencies to have a licence to operate in Ontario to help protect vulnerable employees from being exploited.

Not a new concept

Andrew says the right to disconnect is not a new concept; France passed a law to deal with the issue several years ago. But it is appropriate given the rise in remote work during the coronavirus pandemic, he says, pointing to a Statistics Canada report showing that in January 2021, 32 per cent of Canadian employees aged 15 to 69 worked mostly from home. Five years ago, the number was just four percent.

“But what is interesting about the right to disconnect provision is that it doesn’t actually define any particular standard. There are no stipulated standards,” Andrew says. “It may be left to each employer to decide what is required. There are no regulations yet so we will have to wait for all of that. But my guess is that it will be left to each employer to figure out what meets their needs and, at the same time, is responsive to the intent of the legislation.”

He says the right to disconnect focuses on emails, phone, video conferences and any other communication outside working hours.

‘There is no one policy that will fit every situation’

“How it is implemented depends on each business. I expect the government simply wanted to have employers bring in a little more definition as to when workers are not required to respond,” says Andrew. “There is no one policy that will fit every situation. For example, service industries are required to respond when problems come up. And they don’t always come up in the hours of nine to five. Emergencies happen so there needs to be flexibility.

• Don’t make assumptions when claiming constructive dismissal
• Do employees have upper hand in post-pandemic world? That depends
• Sunday work, employees’ right to refuse, and employers’ obligations

“The government is not just focusing on work hours but also limits on what the employer can require of someone outside of work hours,” he adds. “It is not about whether it is work for which you get remunerated or whether that work triggers overtime. What we are talking about is periods of time when your employer can’t expect you to be available to them.”

Employers with more than 25 employees must have a right to disconnect policy in place by June 2, 2022. On Jan. 1 of every year the employer must also publicize their policy or any changes to it.

Business will need to tailor their policies

“The absence of guidance in the legislation so far seems to suggest that the government understands that businesses have to tailor their policies to fit their needs and those of their staff,” Andrew says. “The big question is how will disputes about whether a policy is sufficiently responsive be resolved. At the present time, I do not believe anybody really knows. Employers are waiting for more guidance from the ministry of labour as to what the expectations are. There is still a long way to go, which is probably why the government is allowing six months to design a policy.” 

He says the ban on non-compete clauses should help clear up confusion about the issue though it shouldn’t really change much.

“What this does is make a statutory standard. This is something the courts were more willing to apply,” Andrew says. “Courts have been reluctant to enforce a non-compete clause in many cases because it basically takes somebody out of the marketplace.”

He says courts “have been more willing to enforce non-solicitation agreements,” which are meant to protect against a former employee taking a company’s clients with them when they leave.

‘Non-solicitation clauses are reasonable in the courts’ view’

“Non-solicitation clauses are reasonable in the courts’ view because it doesn’t stop you from pursuing your chosen field. It just means you can’t reach out to clients and try to bring them with you,” says Andrew.  “Of course, it doesn’t prevent the clients from following you if they make that choice. You just can’t be enticing them.”

Andrew notes there can be exceptions to non-compete clauses. For example, if someone sells their company and remains as an employee. The purchaser would be entitled to expect some protection to prevent the seller from suddenly leaving after the sale is completed and taking the customer base with them, he says.

Andrew says removing barriers for internationally trained individuals to get licensed in a regulated profession also “makes a lot of sense,” adding that on the whole, there is “nothing earth shattering” about the Working for Workers Act.

“I don’t believe any of the provisions in the legislation are going to really upset anybody. For the most part people will regard them as reasonable,” he says.

More from Cavalluzzo LLP:

Court ruling a lost chance to set the law on ‘harsh’ termination clauses