Ontario Proposes Sweeping Changes to Employment Legislation with the Working for Workers Act, 2021

Written on behalf of Peter McSherry

On October 25, 2021, the Government of Ontario announced proposed legislation that will bring sweeping changes to various areas of employment law in the province.

If passed, the Working for Workers Act, 2021 (the “Act”) will amend the current Employment Standards Act, 2000 and related statutes. In making the announcement, the Minister of Labour, Training and Skills Development, Monte McNaughton, stated:

“COVID-19 has changed the way we work, leaving too many people behind, struggling to put food on the table and make ends meet for their families. Our government is working for workers. To do so, we must act swiftly and decisively to put workers in the driver’s seat and begin rebalancing the scales. Today’s proposed legislation shows Ontario is ready to lead the way into the workplaces of tomorrow, and create the conditions that will make talented, innovative people want to work in our great province.”

We review some of the proposed changes below.

Disconnecting From Work

The Act would introduce changes that would require employers with 25 or more employees to have a written policy about employees disconnecting from their job at the end of the workday, which is intended to help prioritize workers’ mental health and family time.

In the legislation, the term “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 government has explained that 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.

If the legislation passes, Ontario will be the first jurisdiction in Canada to introduce such a measure.

Banning Non-Compete Agreements

Another novel aspect of the Act will be to also prohibit employers from using non-compete, or non-competition, agreements.

Currently, these types of contracts are quite common and normally include terms that restrict employees from taking new jobs with other businesses in the same field after they leave the company. The agreements will often outline the geographic region, length of time and types of business that the employee is prohibited from “competing” in.

However, the proposed legislation would ban their use, with the government calling them an “unfair restriction”. The government has stated that this ban will help workers in Ontario advance their careers and earn more money as well as giving the province a competitive advantage in attracting global talent.

The government has further clarified that employers would still be able to protect their intellectual property through narrower clauses, which is a subject matter often covered by non-compete agreements.

If passed, Ontario would be the first jurisdiction in Canada, and one of the first in North America, to ban non-compete agreements in employment.

New Licensing Requirements for Temporary Help and Recruiting Agencies

Additionally, the Act will introduce new licensing requirements for temporary help and recruiting agencies, with the government indicating that this measure will “help protect vulnerable employees from being exploited.” This is because former inspections, mainly in farms, retirement homes, food processing, and warehousing facilities, have shown that some of these agencies illegally pay people below the minimum wage and deny them other basic employment rights.

According to the most recent statistics, there were over 2,000 temporary help agencies operating in Ontario and approximately 128,000 full-time employees working for them.

The proposed changes would enable officers to levy penalties against unlicensed agencies or recruiters using an unlicensed operator. As well, those who use deceitful recruiters could be required to repay workers for illegal fees charged. Ontario is also proposing to hire a team of officers to crack down on temporary help and recruiting agencies and recruiters who exploit and traffic domestic and foreign workers.

If the legislation is passed, the government has indicated that it will require such licences as early as 2024.

Other Proposed Changes

Other changes proposed through the legislation include:

• Requiring business owners to allow delivery workers to use a company’s washroom if they are delivering or picking up items. This became an important issue during the COVID-19 pandemic.
• Allowing surpluses in the Workplace Safety and Insurance Board’s Insurance Fund to be distributed over certain levels to businesses, helping them cope with the impacts of COVID-19.
• Enabling the Workplace Safety and Insurance Board to streamline remittances for businesses, for example, with the Canada Revenue Agency, in order to give them an efficient one-stop-shop for submitting premiums and payroll deductions.
• Allowing the Ministry of Agriculture, Food and Rural Affairs to collect information related to the agri-food workforce in order to deal with issues surrounding COVID-19 vaccination and testing.

Contact Peter A. McSherry Employment Lawyer for Advice on the Working for Workers Act

If you are an employee and want to understand your rights, aspects of legislation and contracts, or an employer looking to ensure you stay compliant with the Act, contact the offices of Guelph’s Peter A. McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.