There are some minimal compliance obligations, but little else will cause change in the workplace
The last six months or so have seen a plethora of government announcements about “improvements” to our existing employment laws. These announcements have generated a lot of publicity and had businesses buzzing about what they mean.
But will they really have a significant impact on the world of HR? At this point, I would say no.
These announcements all come after two-plus years of living through a pandemic, the reconsideration of the role of work in our lives that it has fostered, and, not coincidentally, a provincial election.
More specifically, the fact that many people were working from home (or elsewhere) for an extended period of time has led to a philosophical reexamination of the balance between our working time and our personal time. For decades, we have talked about work-life balance; however, the current discussion has been reframed as “work-life blending” by many. As someone who has never had a clear division between working time and personal time, I can understand this well.
Many have realized that they don’t need to be in the office or “at” work in order to do their jobs, either all the time or part of the time. They have also realized how much time and energy they waste commuting back and forth every day, and how much they like having a more “blended” day, during which they might take time during the traditional workday to pick up their kids, help them with their homework, run some errands, have lunch or coffee with a friend, etc.
At the same time, they are comfortable balancing this out by doing some work in the evening or on weekends. This can be tremendously beneficial when dealing with people in different time zones.
That said, many have experienced a negative consequence of the blurring of the line between work and personal: an expectation that they always be available. At the same time, some organizations have adopted technological tools to monitor their workers, since they cannot physically oversee them, and this has raised privacy issues.
Now that many organizations are considering a return to the workplace and what it might look like, or in some cases, deciding to continue to operate remotely, some of the issues that have arisen are coming to the fore. Furthermore, some issues that have been around since before the pandemic, such as the protection of digital platform workers like Uber drivers, remain to be resolved.
Changes in Ontario
As a result, our current government has made announcement relating to issues, such as
- the right to disconnect from work
- electronic monitoring of employees
- rights for digital platform workers
- restriction on non-competition agreements
- exclusion of some business and IT consultants from employment standards protections
- the requirement that temporary help agencies and recruiters be licensed
- a consideration of the merits of a four-day work week.
However, many of these new “laws” don’t have much substance. For example, the so-called “right to disconnect” is really a requirement that organizations with more than 25 employees have a written policy with respect to disconnecting from work. However, as of this date, there are no specific requirements regarding what that policy must say; as I often joke, a compliant policy could say that “Employees do not have to check email between 2 am and 3 am on alternating nights.”
It is also important to realize that we already have requirements in our employment standards legislation which address these issues for many workers, including maximum hours of work, overtime requirements, mandatory breaks, and minimum time off between shifts.
That said, like many of the announcements, this is an opportunity for organizations to give the issue some thought. I encourage our clients to consider their expectations for employees and start to outline what their policy might look like. This can be an exercise in defining their workplace culture and allowing them to be an employer of choice. They should also remember that one size does not fit all; different types of roles can and should have different expectations.
Right to disconnect, non-competition clauses
With respect to the electronic monitoring of employees, the new legislation requires that employers with at least 25 employees have a policy which addresses issues such as
- When does monitoring occur?
- What information is gathered?
- What does the employer do with the information?
This is something that we have advised employers to do for years, and is consistent with the existing legal expectations, as well as best practices.
The “ban” on non-competition clauses is also less revolutionary than it might seem. The legislation excludes clauses that were in existing contracts, and also excludes executives (essentially, anyone with “chief” in their title). Furthermore, for years the common law has held that non-competition clauses will not be enforceable against former employees in a vast majority of cases. At best, this legislation might reduce the use of them as deterrents by employers who know they won’t be enforced anyway.
With respect to the rights for digital platform workers, it is interesting that this was not done by providing them with protection under the Employment Standards Act, 2000, but by creating a new act with lesser protections. Given that many of these workers are currently fighting to be deemed to be employees, this may end up being largely meaningless.
When the announcement about a four-day work week was made at the beginning of April, many of us thought it was an April Fool’s joke. It was apparently serious, but will not usher in any change in the foreseeable future. What the bill provides for is an exploratory commission and a pilot project. In other words, we are years away from any change, if there will be any at all.
Pith and substance
The bottom line is that almost all of the announcements we have seen in Ontario are more hype than substance. There are some minimal compliance obligations, such as having “a policy”, but little else that will cause change in the workplace.
After the election in June, we will have to wait and see what the victorious party does with all these initiatives, at which point we may have more guidance.