On December 2, 2021, the Working for Workers Act, 2021 (the “Act”) came into effect. Notable for employers is that the Actintroduced a new Part VII.0.1 to the Employment Standards Act, 2000 (the “ESA”). As a result, the ESA now requires employers with 25 or more employees (calculated as of January 1 of any year) to have a written policy related to ‘disconnecting from work’. ‘Disconnecting from work’ means not engaging in work-related communications, including emails, telephone calls, video calls, and/or sending or reviewing messages. The goal is to set limits on the performance of work in an age where a quick email or glance at the smartphone ‘after hours’ is not unheard of.
The policy must be in place by March 1 of the year in which the ‘25 or more employee’ threshold is met and must include the date the policy was prepared and/or and the date that any changes were made to the policy. However, for 2022 employers have been given until June 2, 2022 to put a policy in place. The Actdid not make clear whether the policy can be revoked if an employer reduces its workforce below 25 employees; presumably because the legislature prefers to keep these policies in place once enacted.
Copies of the policy must be provided to all employees generally within 30 days of hire, 30 days of the obligation to create the policy, or 30 days after any change is made to the policy.
Employers and employees will know that time spent performing work outside of regular work hours is already compensable and may trigger obligations to pay wages or overtime. The Act presumably takes aim at a different concern; the idea that, whether or not compensated, there are psychological benefits to ‘unplugging’ from work at the end of the workday. Unfortunately, the Act did not address when or how atypical workdays are to be measured for the purpose of complying with the legislation. To that extent, the Act may raise an interesting challenge for employers and employees. For employers that offer flexible working arrangements, it may be more difficult to assess when hours of work are exceeded and Part VII.0.1 of the ESA breached. For employees, the concern is that the Act may dissuade employers from offering flexible work arrangements, out of fear of breaching the ESA.
The Act also introduced a new Part XV.1 of the ESA which forbids employers from including non-competition provisions in their employment agreements or other agreements with employees. The ban on non-competition provisions is effective retroactively as of October 25, 2021. Exceptions to this prohibition arise when the non-competition provision is introduced in the sale or lease of a business when the vendor (or lessee) then becomes an employee of the business and for certain executives.
While it is difficult to enforce non-competition agreements in most circumstances (outside the sale of a business) it is presently not impossible to do so. Where the non-competition agreement is reasonable in scope and duration and where the employer has business or proprietary interests genuinely worthy of protection, they will be upheld. The introduction of a complete prohibition on non-competition provisions (outside of the exceptions outlined above) is unique and unprecedented in Canada.
