Working for Workers Act 2021 has empty promises
The amendment is meant to protect those workers who find themselves working 24/7 answering phone calls and emails. That is a laudatory goal. Too many employers benefit unfairly from the willingness of employees to work after hours. With so many people working from home as a result of the pandemic the line between work and home has become very blurred. Where does one stop and the other start? Even before the pandemic employees found themselves putting in extra hours as a result of the long reach of technology without compensation.
The government’s plan is that once this Act gets Royal Assent employers with more than 25 employees will have to have a written policy with respect to the right to disconnect. The government hasn’t told us yet what needs to be in those policies but that will eventually follow. Policing and enforcing this policy will be extremely difficult. Many employees have jobs where the goal is to get the job done and their focus is not on how long it takes or when the work is performed. These employees enjoyed the flexibility of being able to manage their own time. Some people would rather work at night than give up their lunchtime pickleball session. With the changes in the workplace brought on by the pandemic more and more employees are jumping ship to go work for employers with more flexible work plans and working arrangements. Those employees may not appreciate a government mandated policy restricting their flexibility.
The reality is that employers can adopt policies but employees may ignore them. If Joe turns off his computer every day at 5 but Jill answers customer emails and calls well into the evening and weekends, guess who is going to get the next promotion? Nobody will ever admit Jill was promoted because she ignored the policy. There are a myriad of factors that can contribute to promotion and proving after hours work was the deciding factor will almost always be impossible. Also, there will have to be exemptions for certain professions like lawyers, health care proffessionhals and emergency workers. I know I will be accused of being cynical but this amendment to the Employment Standards Act, although it has praise worthy goals, notably costs the government almost nothing and will be difficult to enforce against employers. Speaking of empty promises, this same Act prohibits employers from entering into non competition agreements with most employees. A noncompetition agreement is something that says that for a set period of time after you leave your employment you will not work for a competitor, usually within a certain geographic area. Importantly, this is not the same as a non solicitation agreement. Non solicitation agreements prohibit you from soliciting your clients for a period of time to sell them a competitive product. One keeps you from working in the industry, the other just keeps you away from the clients you managed on behalf of the employer.
Prohibiting employers from entering into non competition agreements with most employees is very nice but in Ontario such agreements have been unenforceable for almost a quarter of a century. Long ago the Ontario Court of Appeal indicated that it would almost never enforce such agreements against employees. Nobody goes to court anymore trying to enforce these agreements and most employers don’t even bother putting them in their employment contracts anymore. For somebody who doesn’t know the law, the government’s move looks positive. Perhaps that was the goal.
