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Working For Workers Act: Ontario Ministry Provides Needed Guidance

Late last year, CCPartners published an Employers’ Edge overview of the Working for Workers Act, amending Ontario’s Employment Standards Act, 2000 by adding a requirement for a written policy on “disconnecting from work” and generally prohibiting non-compete clauses in employment agreements.  The Ministry of Labour, Training and Skills Development has just released some additional information providing guidance on exactly what employers are (and are not) required to do.

EMPLOYERS MUST IMPLEMENT A WRITTEN POLICY ON DISCONNECTING FROM WORK

What is Disconnecting from Work?

Part VII.0.1 of the ESA now requires employers with 25 or more employees to ensure that it has a written policy “with respect to disconnecting from work”. 

“Disconnecting from work” is defined to mean: “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work”.  The definition is inclusive, and not exhaustive, so other elements may be appropriate for inclusion in the employer’s policy.

Who are Employees?

The requirement to have a policy on disconnecting from work applies only to those provincially-regulated employers (certain Crown employers not included) with 25 or more employees as of January 1 in each calendar year.

All employees from all of an employer’s locations in Ontario are counted for purposes of determining whether the employer has met the 25 employee threshold, and the count must include, for example: probationary employees, fixed-term or temporary employees, employees on lay-off, employees on leave of absence.

The number of employees may fluctuate throughout the year.  The ESA requires an employer to implement a written policy for a given year if they have 25 or more employees as of January 1, regardless of whether their workforce grows or shrinks after January 1.

What Does the Policy Require?

The Working for Workers Act does not give employees any additional rights to disconnect from work, and it does not require the employers to allow their employees to disconnect from work further than the ESA already requires.  Keep in mind that employers in Ontario must abide by daily and weekly maximum hours of work, eating periods, vacation time, and public holidays, during which an employee must be free from work.

The written policy on Disconnecting from Work does not strictly speaking need to give employees more time free from work.  However, it should state any additional time that employees are permitted to disconnect, and the employer’s expectations regarding work-related communications.

For example, will your employees be expected to check emails on a smartphone, but only respond to certain clients or in emergency situations?  Will employees be expected to ignore all work-related communications during certain days or hours?

The policy must be in writing, must include the date on which it was implemented and/or modified, and must be given to employees in a physical or electronic copy, or a link to the online version of the policy.

When Must the Policy be in Effect?

For 2022, the policy must be implemented by June 2.  In each subsequent year, the policy must be in effect by March 1.  If there are not updates or revisions to the previous year’s policy, the no additional steps are required.

All employees must receive the policy no later than 30 calendar days after it is implemented or modified.  New employees must receive a copy of the policy within 30 calendar days of being hired.  Employers must keep a copy of every version of the policy for three years after the policy is no longer in effect.

NON-COMPETE AGREEMENTS NO LONGER ALLOWED

What is a Non-Compete Agreement?

Non-Compete agreements have been used only sparingly because they have been very difficult to enforce under the common law.  The provincial government has taken matters further and prohibited employers from requiring employees to agreed to non-compete agreements, which the ESA defines as: “an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends.”

Non-Compete agreements, even those are that limited temporally and geographically, are now prohibited – subject to certain exceptions – and cannot be entered into at any time before, during, or after employment.

Exceptions to the New Rules

The ESA leaves room for two exceptions to the prohibition on non-compete agreements.  The first is a rather technical exception where the owner of a business sells to a purchaser, and then becomes an employee.  A purchase and sale agreement can include that the seller will not compete with the purchaser.

The second exception applies to certain classes of workers, generally limited to the organization’s President and other Chief Executives.

Finally, non-compete agreements that were entered into before October 25, 2021 are not void pursuant to the ESA, and may be enforceable so long as they are otherwise valid – which is always controversial pursuant to the common law.

Alternatives to Non-Compete Agreements

The professionals at CCPartners have always offered Non-Solicit and Non-Disclosure agreements either along with or instead of Non-Compete agreements.  The ESA does not prohibit agreements that prevent an employee from soliciting business or employees away to a competing business, or that prevent employees from disclosing sensitive business information.

TAKEAWAYS FOR EMPLOYERS

While the Working for Workers Act certainly changes certain practices for employers, it does not need to restrict your business materially.  The Lawyers for Employers at CCPartners have significant experience and skill at helping employers craft workplace policies and employment contracts that work for your business. 

The “Disconnecting from Work” policy and prohibition on non-compete agreements change the rules for employers, but do not restrict your ability to implement and enforce diligent and responsible workplace policies and terms and conditions of employment.

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