On November 30, 2021, the Ontario legislature passed the long anticipated Bill 27, Working for Workers Act, 2021 (“Bill 27”).  Bill 27 is expected to receive royal assent soon, and employers should prepared to make changes to both employment agreements as well as company-wide policies. Below are some key changes to note.

Employee’s right to disconnect from work

Likely the most well-publicized of the anticipated changes, Schedule 2 of Bill 27 amends the Employment Standards Act, 2000 to give employees of larger businesses the right to disconnect after hours.

Employers with 25 or more employees will be required to have a written policy with respect to disconnecting from work. The term “disconnecting from work” is defined to mean “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.”

General prohibition on non-compete agreements

Reflecting the common law position on the enforceability of non-compete restrictive covenants, Schedule 2 of Bill 27 prohibits non-compete agreements between employers and employees, with two noted exceptions. The first exception regards the sale (or a lease) of a business. Non-compete agreements between the seller and purchaser may be allowed as a part of the sale where the seller becomes an employee of the purchaser immediately thereafter. The second exception is that a non-compete agreement is not prohibited between an employer and its executives. “Executive” is defined in the Bill 27 as “any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position.”

Whether a person fits within the definition of executive is likely to become the focal point of future disputes over whether a non-compete agreement is enforceable.

Updated requirements regarding the use of recruiters

Also important are changes related to recruiters and the protection of foreign nationals. The first of these changes is in Schedule 1 of Bill 27, amending the Employment Protection for Foreign Nationals Act, 2009. The amendment in against recruiters or employers knowingly using the services of a recruiter who has charged a fee to a foreign national. Such activity would contravene subsection 7(1) of the Employment Protection for Foreign Nationals Act, 2009.

Updated licensing requirements for recruiters

Bill 27 also adds licensing requirements for persons operating either as a temporary help agency or as a recruiter. There are also prohibitions against recruiters, employers, prospective employers or temporary help agency’s clients knowingly engaging or using the services of an unlicensed temporary help agency or recruiter.

Updated qualifications requirements for foreign nationals

Schedule 3 of Bill 27 amends the Fair Access to Regulated Professions and Compulsory Trades Act, 2006. Among other things, it prohibits regulated professions from requiring Canadian experience as part of the qualifications for registration unless an exemption from the prohibition is granted.  This amendment reflects the Ontario Human Rights Commission’s Policy Statement Removing the “Canadian experience” barrier, which considers such requirements to be prima facie discriminatory.

Rights for delivery workers

Schedule 5 of Bill 27 amends the Occupational Health and Safety Act. With exceptions, it requires the owner of a workplace to provide access to a washroom to workers making deliveries to or from that workplace.

 

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