On November 30, 2021, the Ontario Government passed the Working for Workers Act, 2021 which bans non-compete agreements for employees, requires recruiters and temporary help agencies to be licenced, and requires mandatory policies dealing with employee rights to disconnect from work at the end of the day.
The legislation imposes a number of changes, highlights of which include:
- Mandatory Policy on Disconnecting from Work – Employers with 25 or more employees (as of January 1st of each year) are required to have and distribute a written policy (before March 1st of that year) about employees disconnecting from work, relating to engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages. Employers have six months from the day the Act receives Royal Assent to comply with this requirement.
- Ban on Non-Compete Agreements – Employers are prohibited from imposing non-compete agreements that prevent people from exploring other work opportunities that are in competition with the employer’s business after the employment relationship between the employee and employer ends.
Employers are still able to protect their intellectual property and confidential information through narrower clauses, and non-compete clauses would still be allowed in some cases where a business is sold. The legislation does not prohibit the restriction against competitive behaviour during the course of employment, nor does it ban clauses which block ex-employees from soliciting their former employer’s clients (often referred to as non-solicitation clauses or agreements).
The legislation appears to be intended to operate prospectively, by banning employers from entering into new non-competition agreements, while leaving existing arrangements in place; however, the way in which the Act will be interpreted and applied remains to be seen. It is also not clear the extent to which the amendments to the legislation will impact on any implied common law or fiduciary obligations which may exist.
- Licencing for Recruiters and Temporary Help Agencies – Recruiters and temporary help agencies are required to have a licence to operate in the province to help protect vulnerable employees from being exploited. Licences automatically expire after one year (except where a longer period is prescribed by regulation), and a public record will be available of all active, revoked and suspended licences.
- Improve Access for Internationally Trained Professionals – The legislation helps to remove barriers, such as Canadian experience requirements, for internationally trained individuals to get licenced in a regulated profession and get access to jobs that match their qualifications and skills;
Other changes include:
- Requiring business owners to allow delivery workers to use a company’s washroom if they are delivering or picking up items;
- Allowing surpluses in the Workplace Safety and Insurance Board’s (WSIB) Insurance Fund to be distributed over certain levels to businesses;
- Enabling the WSIB to work with entities, like the Canada Revenue Agency (CRA), to streamline remittances for businesses, enabling a way to give them an efficient one-stop-shop for submitting premiums and payroll deductions; and
- Allowing the Ministry of Agriculture, Food and Rural Affairs to collect information related to the agri-food workforce to ensure the government can enhance the coordination of services such as vaccination and testing.
We will continue to update our clients with information as soon as it becomes available. If you have any questions about the new legislation or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.