In early December 2021, the Working for Workers Act, 2021 (Bill 27), received Royal Assent.
Amendments to employment legislation in Ontario, including the Employment Standards Act, 2000 (ESA) were introduced in this bill. Let’s dive right into the information you need to know.
The Right To Disconnect
The Right to Disconnect has gotten the most exposure of all the amendments to the ESA. Organizations of 25 or more people are required to develop a policy outlining employees’ right to disconnect from work.
Disconnecting from work is defined as:
“… 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.”
This policy was to be drafted and implemented by June 2, 2022.
Starting in 2023 and continuing each year, employers with 25 or more employees on January 1 must have a written policy in place before March 1st of that year. The ESA requires that employers include the date the policy was prepared and the date any amendments were made to the policy were mad. A policy is required to apply to every employee, inclusive of management and executives, however it doesn’t have to be the same policy for everyone. Employers can define different policies for different groups of employees.
The employer can use their discretion in creating the policy as long as it is compliant with existing rights in the ESA, namely policy related to work hours, break periods, vacation with pay, public holidays and when work is deemed to be performed.
It is all a little vague right now. The bill does not define the scope, procedures or consequences for a violation of the policy. In coming months and years, there may be more details related to the enforcement of these policies.
The general consensus is this is a good first step for creating more work/life balance for employees – which should help with health, mental health and employee morale.
One last note, employers need to ensure they communicate with employees about this policy, so they are aware of their rights and the details of the policy.
How can CEO Law help?
Work with one of our experienced lawyers to draft a policy that is likely to stand up to any amendments going forward. Without a crystal ball, no lawyer can guarantee a policy written today will remain compliant for the unforeseeable future. However, lawyers with experience that understand the finer points of the legislation, are more likely to create a policy that does hold up – which saves you time, money and stress in future years.
They can also ensure you don’t inadvertently include something that would go against another area of the ESA.
Alternatively, you could draft the policy and have a lawyer review it and advise you on any necessary changes.
Our lawyers are well versed in employment legislation and are here and available to help.
We even offer a flat rate service for reviewing your document draft.
Non-Compete Agreements
The non-compete has died, and most people aren’t sad to hear the news. As of October 25, 2021, employers are not allowed to include a non-compete in their employment agreements.
A non-compete agreement is defined as:
“an agreement, or any part of an agreement, between an employer and employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that competes with the employer’s business, after the employment relationship between the employee and the employer ends.”
The new legislation states that they are not allowed to enter a non-compete agreement before the employment relationship begins, during employment or after it ends.
There are two exceptions. The firs is upon the sale of a business and secondly, for those who hold the title Chief Executive or President.
Historically, non-compete clauses were very difficult to enforce under common law. Courts were quite reluctant to support what is has been called a ‘restraint of trade.’
Employers need to review existing agreements and remove any non-competes that aren’t compliant with the new legislation. Namely, anything that is not related to the sale of a business or a Chief Executive or President.
Note – employers also need to review job titles and descriptions to ensure executive positions meet the definition of “executive” under the new legislation.
How can CEO Law help?
CEO Law lawyers are available to review your existing agreements, to ensure they are brought up to current guideline standards. They can also help ensure that your job titles/descriptions for executives are current with ESA standards.
Having a deep understanding of the ESA as a whole, helps ensure that fixing one area of your agreements doesn’t make you non-compliant in other areas.
