What You Need To Know About Bill 27
The Employment Standards Act (“ESA”) is changing. What does that mean for business owners?
Notably, the ESA is evolving – in light of how the pandemic affected workers – to include more worker-friendly measures. We’ll go through the highlights in this article, but if you’re curious to see the full content of the proposed Bill 27, you can find it here.
Although Bill 27 has not passed into law just yet, it’s good to be prepared. Better to have a plan in your back pocket and not need it, than to find yourself scrambling after the fact.
(We’ll update this space when new details emerge. Stay tuned!)
What is the Working for Workers Act?
The Working For Workers Act is the government’s newest legislation to amend the ESA, the Occupational Health and Safety Act (“OHSA”), and other laws to make them more worker-friendly. Along with the changes to the ESA, the bill introduces new penalties when fees are illegally collected from foreign workers trying to come to Canada, and provides internationally-trained professionals easier access to obtain their certification to practice in Canada.
Yet it is the amendments to the ESA that are garnering the most attention. As Labour Minister Monte McNaughton announced in his press release, “Our government is working for workers. To do so, we must act swiftly and decisively to put workers in the driver’s seat and begin rebalancing the scales.”
Can any delivery driver now use our bathroom?
The first time Bill 27 made headlines was actually for a proposed change to OHSA. During the pandemic, food delivery drivers – many of whom operated through third-party apps such as UberEats and Skip The Dishes – became the lifeblood of the restaurant industry. Despite working long shifts for several hours, those drivers were often not allowed to use the washrooms in the restaurants where they picked up food for an app customer.
The new law states that “the owner of a workplace shall ensure that access to a washroom is provided, on request, to a worker who is present at the workplace to deliver anything to the workplace, or to collect anything from the workplace for delivery elsewhere.” The only exceptions are if there is a health and safety issue, if the washroom is in or can only be accessed through a home, or if it would be unreasonable or impractical to do so.
If your workers order lunch (or snacks!) to the office, this could be relevant for you.
Are non-competition clauses now illegal?
Bill 27 states that “no employer shall enter into an employment contract or other agreement with an employee that is, or that includes a non-compete agreement.” So essentially – yes. It goes on to add that any non-competition agreements with employees already in place are void.
While that may come as a surprise to employers, it mostly solidifies what the courts have said for years: that in recent decades, employers have held significant power in the employment relationship and that they should not prohibit former employees from being free to make a living.
For a non-competition clause in an employment contract to be enforceable before Bill 27, it must be very limited in the geographic area and duration in which it prevents a former employee from competing. After Bill 27 (if it passes into law) a non-competition agreement will be unenforceable except in rare circumstances involving the sale of an entire business.
Without non-compete clauses, what’s to stop former employees from poaching our business?
While non-competition clauses may be out, there are still ways that employers can protect their interests after employees decide to move on.
An employer may not be able to stop a former employee from working with the competition, but they can stop them from poaching staff, clients, or stealing confidential information. Non-solicitation clauses in an employment contract can still prevent former employees from poaching any staff, key contacts, or existing clients.
These clauses should also be written carefully though, as something too broad may not hold up in litigation. For example, ‘any clients of the business’ may be impossible to enforce, but the more specific ‘any clients known to the employee within the previous 12 months’ provides that former employee a much clearer picture of what conduct will be offside.
Employers can also use of confidentiality clauses. These too must be carefully written to ensure that an employer retains all rights to confidential information from within their workplace, and they can also mandate that the employer owns anything that the employee created during their term of employment. When that employee leaves, they are not allowed to take any confidential information with them, including trade secrets, customer lists, etc.
If these contract topics are important to you, speak with an employment lawyer for specific advice.
What is the ‘Right To Disconnect?’
The other key feature of Bill 27 was also the biggest headline-grabber of all the proposed changes. The Bill introduces a ‘right to disconnect’ – similar to what currently exists in several European countries – where employers will be unable to communicate with employees outside of working hours. More specifically, this is defined as “not engaging in 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.”
So what does that mean? The law will require employers with 25 or more employees to draft a workplace policy outlining employees’ right to disconnect shortly after Bill 27 becomes law. This will mean that employers cannot expect employees to work all hours, or to be responsive when they are not on the clock.
For employees who have spent the better part of the last 2 years unexpectedly working from home, the news represents a welcome reprieve. Some employers have had high expectations of their teams, and employees have expressed a pressure to put in extra hours through the pandemic. This law is designed to protect employees from overwork and burnout. At first glance this might seem one-sided for employees, but preventing burnout benefits businesses in a big way too.
How will we implement “disconnecting” into our business?
On this point, we don’t have full details on what this right to disconnect will entail. Typically, the Ministry of Labour will put out a sample policy for HR experts to use as a guideline when designing customized policies for a workplace. We’ll be first in line when that happens!
This one is of particular interest to us at Castle HR, where we have built our business on offering our employees flexible working hours. We understood – even before the pandemic – that employees have lives, and may choose to do their work on their own schedule instead of 9-5.
Even with our flexible working hours, we remind our team regularly that they have no obligation to respond outside of their working hours unless it is an absolute emergency. We take our downtime seriously, and firmly believe that no one should have to interrupt it for something could have easily waited until the next business day.
We may have to alter some habits or policies to adjust, but the intent of this part of Bill 27 is certainly aligned with the spirit of our existing culture. If one person is doing their work in the evening and another prefers mornings, that gap might be well served by strategic “do not disturb” settings so that no one feels bad about what time of day they send an email.
Like with any major change in employment law, our job is to help you stay compliant. Our role as outsourced HR professionals is to help you both follow the law and stay ahead of the latest trends. Set up a time below to speak with one of our experts.
Book a call with us to learn how we’re helping companies
attract superstar talent, increase productivity,
and score a ridiculous retention rate.
increase in new