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Release date: November 2, 2021
Provincial Government Proposes New Employee Protections
The Ontario government has recently (on October 25, 2021) introduced Bill 27, the Working for Workers Act, 2021. If passed, the act will amend various pieces of legislation affecting the rights of employees. We have focused on two of the most potentially relevant workplace changes for condominium communities.
Disconnecting from Work Policy
Importantly, Bill 27 does not prescribe any minimum time an employee must be free from work-related communications. Rather, it seeks to amend the Employment Standards Act, 2000 to require employers with 25 or more employees to have a written policy about disconnecting from work at the end of the workday. The bill defines “disconnecting from work” as not engaging in any 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.”
As a practical matter, condominium corporations will not be required to have a Disconnecting from Work Policy for their employees, as they are unlikely to meet the required 25 employee minimum threshold. However, some property management service providers may be subject to the requirement to have a written Disconnecting from Work Policy, and such may affect the after-hours availability of their on-site condominium managers.
In addition, in circumstances where written policies are required, subject to what is prescribed by the regulations, it is unlikely that many policies will place an outright ban on after-hour work-related communications. These mandatory policies might instead encourage, for example, employees to turn on their “out of office” notifications at the end of the workday, or to use a delayed-delivery function for emails so that work-related, non-urgent emails are not received outside of working hours.
For those employers who are required to implement a policy, there is a proposed grace period of six months from the date the legislation receives Royal Assent for a policy roll-out.
Non-Competition Restrictions
The Bill also includes a prohibition on the use of non-compete agreements in employment contracts or other agreements with an employee unless there is a sale of a business (or part of a business). The proposed prohibition is consistent with the long-standing view of Canadian courts, including Ontario Courts, that non-competition restrictions are presumptively unenforceable unless the party seeking to enforce the restriction can demonstrate that it has a bona fide commercial need to do so, and that the restriction is reasonable in terms of duration and geographical scope.
If an employer does enter into a non-competition agreement with an employee in breach of the legislative ban, the agreement shall be void.
If Bill 27 is passed, Ontario will become the first province in Canada to ban non-competition clauses and to mandate a work-disconnection policy. We expect Bill 27 to pass, as it is a government bill. At this time, the bill has passed Second Reading and will go on to a committee for further consideration and consultation. We will keep our members updated as to the progress of the bill.
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