UPDATED MAY 6, 2022
DECEMBER 8, 2021
Part 2: Ontario’s Working for Workers Act, 2021
plus minimum wage increases effective January 1, 2022.
On December 2, 2021, the Working for Workers Act, 2021 (the “Act”) became law in Ontario. The Act amends various pieces of legislation with respect to provincially regulated workplaces, including the Employment Standards Act, 2001 (“ESA”).
In Part 1 of my post on this topic, I discuss how the Act amends the ESA to prohibit certain non-compete agreements between employers and employees. I also identify some pitfalls and problems that may arise from the changes to the law, and which may take years to resolve.
In Part 2, I discuss some of the other highlights of the Act, and the recently announced increase to the minimum wage.
Right to Disconnect?… Wrong!
The part of the Act that is getting the most attention, but is the least understood, relates to a concept known in many countries as the right to disconnect. This may have led a certain Toronto publication to declare: “It’s now officially illegal in Ontario for your boss to bug you at home after-hours”, to which I responded “not true” on Twitter.
Here is what the Act actually states (and the underlines are mine):
The ESA has been amended so that “an employer that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year ensure it has a written policy in place for all employees with respect to disconnecting from work that includes the date the policy was prepared and the date any changes were made to the policy”. For employers currently at 25 or more employees, the deadline is June 2, 2022. For any companies growing beyond 25 or beyond as of January 1 of a new year, the deadline to implement the new policy will be March 1 of that same year.
“Disconnecting from work” 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.”
As for what the policy must state in so far as allowing employees to disconnect, that won’t be known until the government passes regulations. This is one reason why the obligation to create a policy has been delayed. So, for now, we’ll have to wait and see. Check back with me in the coming months for more details.
In the meantime, if your boss “is bugging you at home after hours”, you should get some legal advice before reporting them to the Ministry of Labour, or even refusing to look at your work email in the evenings and on weekends.
More importantly, though, employers and employees should be aware of the existing overtime and the daily and weekly limits on hours of work provisions in the ESA (as well as the many exceptions to these provisions).
Nature Calls, So There’s a Law for That
The Occupational Health and Safety Act is amended to require the owner of a workplace to provide, on request, access to a washroom to persons making deliveries to or from the workplace. There are exceptions for where providing access would not be reasonable or practical for reasons relating to health and safety, or having regard to all the circumstances, or if the washroom is in, or can only be accessed through, a dwelling.
This change to the law was necessitated, in part, by the large number of food delivery workers who, throughout the COVID-19 pandemic, were denied use of customer washrooms at restaurants when picking up food for those very same restaurant customers who chose to stay home.
And no, don’t worry, you don’t have to let your delivery person use your home bathroom—even if you work from home.
Time’s Up for Unethical Recruiters and Temp Agencies
As reported in a recent Toronto Star story, “Ministry of Labour inspections have found multiple temporary help agencies that are paying workers below minimum wage and denying basic employment rights” such as minimum wage, and holiday and overtime pay. “They also found recruiters charging workers illegal hiring fees, and then clawing back their pay.”
To address these and other issues, the Act amends the ESA to include the following:
- A prohibition on operating as a temporary help agency or acting as a recruiter without a licence.
- A prohibition against knowingly engaging or using the services of an unlicensed temporary help agency or recruiter.
- The authority of the Director, Employment Standards to issue, revoke and suspend licences.
- Recruiters are prohibited from taking reprisals against prospective employees on a variety of grounds, such as asking the recruiter to comply with the ESA.
- Filing statements designed to protect workers who are foreign nationals.
- Posting security as part of the licencing process.
Owners of recruiters and temp agencies—and those who hire them—should immediately seek experienced legal advice, as soon as possible, to ensure they are compliant with the ESA. It is anticipated that, with the changes to the law, there will be an increase in Ministry of Labour inspections (and penalties) in the future.
Plus: Minimum Wage to Increase in 2022
In November 2021, the Ontario government announced that the general minimum wage would rise from $14.35 to $15.00 per hour as of January 1, 2022. Along with that, the special, lower minimum wage for liquor servers would be scrapped, and such servers would earn $15.00 as well due to a decrease in tip income. As well, the minimum wage for students under 18 who work 28 hours a week or less when school is in, or during a school or summer break, will rise from $13.50 to $14.10 per hour (a far cry from this writer’s first student wage of $2.75 an hour in the early 1980s!) Homeworkers who leave their own homes to work will now earn $16.50 per hour instead of $15.80. It is also worth noting that minimum wage will be rising again in Fall 2022, to $15.50 as of October 1, 2022, with the rate for students also going up $0.50 to $14.60 per hour.
If you are an employee or employer, I can help you with any employment standards-related or other workplace issue. I have more than 25 years experience as an employment lawyer with satisfied, repeat clients.
If you are a lawyer or paralegal looking to hire a mediator or mediator-arbitrator for your employment law dispute, I am a mediator with more than a decade of experience mediating virtual, in-person, and hybrid employment law and civil disputes.
This blog is for educational purposes only and is not intended as legal or other professional advice. The use of this blog does not create a lawyer-client relationship.