On the heels of Premier Doug Ford’s mid-October announcement of gradual plans for Ontario’s exit from COVID-19 pandemic emergency measures, one of Ford’s Cabinet Ministers is introducing new legislation that will sharpen the line between work time and family time to ensure that members of the province’s ever-growing remote workforce have the downtime they need to prevent burnout and stay connected with family.
Monte McNaughton (Labour, Training and Skills Development Ontario, and MPP for Lambton-Kent-Middlesex) briefed the media on Monday, October 25th about his proposed Working for Workers Act, 2021, which will require companies with at least twenty-five employees to develop policies to ensure that workers have the “right to disconnect” at the end of the workday or workweek. Citing the changes to the way Ontarians work that have in large part resulted from COVID-19, McNaughton expressed concern that “the lines between family time and work time have been blurred”, and that he was confident that the proposed legislation would “create the conditions that will make talented, innovative people want to work in our great province”.
McNaughton’s proposed “right to disconnect” legislation is receiving cautiously positive reviews from opposition MPPs, given its focus on creating positive outcomes for workers and their families. Most are waiting for details on what practical impact the changes will have on existing employment laws in Ontario, which already cover such issues as overtime pay entitlement, regardless of the location from which an employee fulfils their duties.
Statistics Canada reports that, as of the beginning of this year, 32 per cent of Canadian employees work most of their hours from home, a significant leap from the four per cent reported in 2016. The vast majority (90 per cent) of new teleworkers report that they accomplish as much or more work per hour from home as they did in their previous place of work. The proposed legislation responds to data suggesting that these same teleworkers, despite productivity increases, are working more and longer hours since their workplaces shuttered due to the pandemic.
Interestingly, the potential for longer hours, working from home, has not deterred the majority of Canadians from seeking to continue to spend at least some of their work time in a location other than their former workplaces. According to Statistics Canada, 80 per cent of new teleworkers hope to continue to work at least half of their hours from home, post-pandemic. Initial reaction to the announcement Monday from some current teleworkers has been one of concern that, by adding this new workplace policy requirement, the government may inadvertently be encouraging employers to force their employees back to the office, where hours worked can be more strictly controlled. Others have expressed appreciation for the spirit behind the legislation, which has the potential to assist workers in prioritizing their physical and mental health, without the risk of employment repercussions.
In addition to its focus on ensuring that “when you’re off the clock, you’re off the clock,” McNaughton’s proposed legislation has in its sights what the Minister refers to as “unfair” non-compete agreements. Often included in employment agreements to ensure intellectual property does not exit a business when employees do, non-compete agreements are criticized as limiting workers’ ability to advance their careers and earn more money. The government suggests that narrower clauses in employment contracts limiting the post-employment use of intellectual property will be allowed under the new legislation, while blanket non-compete agreements will be banned.
Proponents of the change include Ontario employers in the tech sector, where such agreements are common. Tech employers face stiff competition for talent in the global economy, so the promise of career mobility should make Ontario a more attractive place to work. The negative financial as well as psychological impacts of forcing an employee into an arrangement where there is no way to make a career move without changing industries, or moving outside of a set geographical radius, is something workers’ rights advocates will no doubt appreciate seeing addressed through the ban on non-competes in the employment context.
If passed, the proposed legislation will make Ontario the first jurisdiction in Canada to ban non-compete clauses in employment contracts and the first to establish policies that encourage workers to disconnect from their employment responsibilities. Ideally, Ontario employers may realize an advantage in attracting and retaining a skilled workforce based on these unique policies that grant workers the flexibility and mobility they desire.
Ontario companies already in compliance with employment standards laws relating to hours of work have little to be worried about regarding the “right to disconnect” portion of the Act. New policies can be written, or existing ones modified, to articulate what employers and employees already know about how much and how long to work. The goal may be to ensure that high-performing, advancement-seeking employees are truly turning off and tuning out when they are required to do so, both for their own mental health and as required by this new law. Prudent employers will want to ensure that compliance and enforcement stay in the hands of their Human Resources or People and Culture Departments, and not the government. Many may find that now is an appropriate time for an enterprise-wide refresher course on the use of readily available tech tools, such as time management software, and the under-utilized “out of office” email auto-response feature.
Of greater concern and import are the potential changes necessary to companies’ existing employment agreements that contain non-compete clauses. Over the next few months, employers and employees will learn what types of clauses the Act will permit, and to what business sectors the ban on non-compete employment agreements will apply. A look at the varying degrees to which U.S. jurisdictions uphold or limit the use of non-compete agreements (California has prohibited the use of non-compete clauses since the 19th century, Hawaii has barred their use – by high-tech companies only – since 2015, while Florida generally upholds all forms of non-compete agreements) suggests that there are many ways in which the Act may change the employment landscape in Ontario.
During the months to come, while Minister McNaughton’s proposed legislation is scrutinized at Queen’s Park, employers will have time to look with fresh eyes on any potentially restrictive clauses in their existing employment agreements. Policies relating to remote work, which may have been drafted with haste as the COVID-19 pandemic emerged, are also ripe for review. With the apparent bi-partisan support for the Act (and because the Premier Ford’s Conservative majority will be in place at least until the spring of 2022), Ontario employers are likely already taking initial steps to modify workplace policies and existing employment agreement clauses that may run afoul of the new legislation, and to explore ways to transform hiring and HR practices to stay competitive in the global labour market.
The Mississauga employment lawyers at Bader Law regularly assist business owners and entrepreneurs in ensuring compliance with their legal and financial obligations. Contact us online or at (289) 652-9092 to learn what we can do for you and your business.