Update on Expansion of Workplace Rights in Ontario

Written on behalf of Peter McSherry

We regularly write about the tidal wave of workplace changes brought about by the huge changes we have seen over the past two years. This includes the pandemic itself, work from home orders, and the development and broader adoption of modern technology, such as videoconferencing and remote access to workplace systems. These changes have regulators struggling to catch up to protect workers’ rights in the workplace. Work/life balance, worker privacy, gig work rights are all topics that are being actively addressed here in Ontario.

We have also previously provided updates on changes the federal government is considering (for federally regulated workplaces including banking, aviation, and cross-border trucking).

We have also covered earlier Ontario updates to workplace rights that the Ontario government has begun implementing. However, it appears it is just getting started as it is already considering further extensions of workplace rights. With all of this change coming, it is time for an update on where workplace rights stand in Ontario with a focus on:

• Work and life balance and non-compete agreements;
• Workplace privacy; and,
• Basic rights for gig workers.

Work and Life Balance and Non-Compete Agreements

As regular readers of this blog know, Ontario introduced legislation requiring employers to have a written policy on disconnecting from work. This officially became law in December of 2021. Employers with 25 or more employees have until June 2, 2022 to put in place a written policy on the right to disconnect from work.

The term “disconnecting from work”, is now defined in the Employment Standards Act, 2000. 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 definition is meant to be inclusive, not exhaustive. Other activities, depending on the workplace, could potentially be part of disconnecting from work. The content of the policy is up to employers to determine is appropriate for their workplaces.

Given the degree of flexibility retained by employers and the fact that many workplaces are not covered by this provision (small businesses under 25 employees), many employees may still experience an inability to disconnect and subsequent work-related burnout. As well, even in large organizations employees may have a right to disconnect on paper, but if a workplace still has a culture where there is pressure or an expectation on employees to remain connected, it may be difficult for employees to assert these rights in practice.

In the same legislation, Ontario passed new rights in relation to non-compete clauses. Non-compete clauses have effectively been banned, except for a narrow number of exceptional circumstances. We now have one of the first cases interpreting the new legislation, Parekh et al v. Schecter et al (Parekh).

In Parekh, the court considered whether non-compete agreements signed prior to the effective date of the legislation are impacted by the legislation. The court ultimately determined the legislation is only effective as of October 25, 2021. This means the vast majority of non-compete agreements are not impacted by the legislation. However, there are a number of other potential issues with non-compete agreements that can render them unreasonable or even unlawful, which we’ve written about here.

Workplace Privacy

Ontario notoriously has limited protections for privacy in the workplace, particularly in comparison to federally regulated workplaces that have protections under the Personal Information Protection and Electronic Documents Act. The Ontario government is in the early stages of considering whether the lack of protections is sustainable in the modern workplace.

The media has reported on the Ontario government’s pledge to become the first province to “protect workers from digital spying by bosses”. The purpose of the proposed legislation is to give workers the right to know if their employers are digitally monitoring employees. Employees would also have the right to know what information is collected and stored as part of that monitoring. While it does not prevent employer monitoring of employees, it would require proactive disclosure to employees.

The concern is particularly relevant at this time as technology enables employers to access information about employee whereabouts, keystrokes, and through cameras even employee facial expressions. For employees working from home and repurposing a bedroom or dining room table for their home office, this can be even more sensitive than when this monitoring occurs on the employer’s premises.

As this new privacy right is in the early stages of the legislative process, we will continue to monitor this development and provide further updates as the Ontario government provides more details and guidance.

Basic Rights for Gig Workers

The Ontario government is not just seeking to protect employees with white-collar, traditional jobs with these changes to employment standards. The Ontario government is also considering expanding some workplace rights to protect non-traditional or gig-based workers. As we have previously written about, gig workers, independent contractors, and in some contexts even dependant contractors, have significantly fewer protections than traditional employees have.

This new legislation is designed to close the gap for the most vulnerable contract workers by providing protections for app-based workers such as Lyft drivers. Ontario Labour Minister, Monte McNaughton has stated that “it’s important that we have a foundational set of rights for these workers”.

The “foundational set of rights” referenced by the Labour Minister includes the right to:

• Minimum wage of $15/hour for hours actively working (ie while making a delivery, not while waiting for a delivery request);
• Knowing how their pay is calculated;
• Written information on how assignments are offered;
• A breakdown of any performance rating systems including details of any consequences for low ratings; and,
• Transparency on how and when tips are collected and the right to keep their tips.

Similar to the privacy rights in the workplace, these new rights are in the early stages of the legislative journey and the details are subject to change. As more information becomes available, we will continue to provide updates in this space.

Contact Peter A. McSherry in Guelph for Advice on Employment Standards and Workplace Rights

If you are an employee concerned about your workplace rights or an employer concerned about your workplace policies, contact the offices of employment lawyer Peter A. McSherry.

We advise employees and employers on a wide range of workplace-related legal matters, including employment standards and workplace rights. Contact us online or by phone at 519-821-5465 to schedule a consultation.