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Sign of the Times

Sign of the Times

What Employers Need to Know About Where Employee Rights May be Going

On October 25, 2021, the Ontario government tabled a bill to promote healthy work-life balance and the right to disconnect, Bill 27, Working for Workers Act. The Bill addresses a number of issues banning non-compete agreements. Legislation on this nature has not been introduced in Alberta, however, if the Bill is brought into force in Ontario, there is likely to be pressure brought to bear here to make changes to our legislated regime to enhance the rights of employees in a similar fashion. While many have seen this bill as an overreach, others have defended it as a useful economic recovery tool.

This follows an international trend where legislation has been put in place to provide increased protections for employees in several European countries. France has had similar legislation to that proposed in Ontario in place since 2017 with Italy, Ireland, Spain, Luxembourg, and Slovakia having followed suit more recently. The right to disconnect is also being considered at the federal level in Canada for federally regulated employees such as those employed in the airline, banking, television/broadcasting and railway industries as well as those employed by federal agencies.

Bill 27 includes new obligations and restrictions that employers would be required to observe and imposes new parameters for how recruitment agencies operate, what experience employers can require for new employees and what businesses must make available to delivery workers. Specifically, the proposed legislation would:

  • Require employers with 25 or more employees to have a written policy enabling employees to disconnect from their job at the end of the workday in order to help them spend more time with their families. These workplace policies could include, for example, expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they aren’t working.
  • Ban the use of non-compete agreements that prevent people from exploring other work opportunities. These types of contractual provisions are often used to restrict employees from taking new jobs with another business in the same field after they leave the company. The proposed changes would ban this type of restrictive covenant to help workers advance their careers. Under the proposed legislation, Employers would still be able to protect their business interests through much narrower clauses dealing with proprietary information, ownership of intellectual property, confidentiality, non-solicitation, and privacy.
  • Remove barriers, such as Canadian experience requirements, for internationally trained individuals to get licensed in a regulated profession and get access to jobs that match their qualifications and skills.
  • Require recruiters and temporary help agencies to have a license to operate in the province to help protect vulnerable employees from being exploited.
  • Require business owners to allow delivery workers, including delivery drivers, couriers and truck drivers, to use a company’s washroom if they are delivering or picking up items.

The proposed changes were informed by the recommendations made by the experts of the Ontario Workforce Recovery Advisory Committee, based on their consultations with workers, employers and unions.

The recommendations have been justified on the basis that they will support economic growth, assist in attracting top global talent and allow employees to stay in workforce longer. The Bill amends various pieces of employment legislation in the province including the Employment Standards Act and would change how the common law applies to the employment relationship.

Critics of the Bill have suggested that these changes hamper flexibility at a time when traditional 9-5 jobs are becoming less prevalent and could cause employers to move away from employment relationships in favour of independent contractor arrangements where possible as a result. While the right of employees to disconnect has garnered the most attention, some of the other aspects of the Bill could have even more significant impacts on the ability of Employers to set the terms and conditions of employment relative to experience and qualifications and the ability to protect their business interests when employees leave. This kind of legislation creates a need for employers to consider strengthening the language in their employment contracts to mitigate those risks using the tools that remain available to them.

We will continue to monitor developments as this Bill progresses.

For further information regarding changes to Employment Legislation, please contact Suzanne Polkosnik, Q.C.

Material in this article is available for information purposes only and is a high level summary of the subject matter. It is not, and is not intended to be, legal advice. You should first obtain professional legal advice prior to taking any action on the basis of any information contained in this article. This article is copyright. For permission to reproduce this article please email Swainson Miki Peskett LLP: info@smpllp.ca


Update

Right to Disconnect and Non-Compete Bill is Now Law in Ontario

On November 30, 2021, Bill 27, passed with some amendment and received royal assent on December 2, 2021.

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Right to disconnect:

Employers with 25 or more employees as of January 1, 2021, must have a written policy about employees disconnecting from their job at the end of the workday by June 1, 2022. The law does not specify what the policy contains, but it should include expectations about response time for emails and the ability for employees to turn on out-of-office notifications when they aren’t working.

Ban on non-compete agreements:

The effective date for banning non-compete agreements that restrict employees from taking new jobs with another business in the same field after they leave a company was backdated to October 25, 2021. There are some exceptions:

  • Non-compete agreements are permitted where certain sale of business requirements are met; and
  • Employers may have non-compete agreements with executives. “Executives” is defined as any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer, or chief corporate development officer, or who holds any other chief executive position.

Employers would still be able to protect their intellectual property and confidential information through narrower clauses.

Barrier to employment of foreign workers:

The changes to remove barriers, such as Canadian experience requirements, for internationally trained individuals to get licensed in a regulated profession and get access to jobs that match their qualifications and skills came into force on December 2, 2021. Recruiters and employers are prohibited from knowingly using the services of a recruiter who has charged a fee to a foreign national.

Access to washrooms:

Business owners are required to allow delivery workers to use a company’s washroom if they are delivering or picking up items also effective December 2, 2021.

For assistance navigating the impact of Bill 27 on your employees, please contact Suzanne Polkosnik, Q.C.