The Right to Disconnect
On December 2, 2021, Ontario’s new Working For Workers Act, 2021 (the “Act”), received Royal Assent. One of the changes ushered in by this legislation is the obligation for employers to have a written policy on the right of employees to disconnect at the end of the workday. The Act defines “disconnecting from work” 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.” Unlike exceptions to other employment laws, no class of employee is currently exempt from the right to disconnect, including regulated professionals.
Employers with 25 or more employees as of January 1 of any given calendar year will need to have a right to disconnect policy in place by March 1 of that year. For 2022, the policy will need to be in place no later than June 2nd.
Current employees must be provided with a copy, and new employees must also receive a copy of the policy within 30 days of becoming an employee. If the employer updates the policy, all employees must receive a copy of the amended policy within 30 days of the changes being made.
As of now, the Ontario government has not enacted specific rules or regulations as to the required contents of the policy. This will ultimately be at the discretion of each employer.
Given the wide flexibility afforded by the Act as to the contents of the policy, employers should carefully consider their unique needs, workforce, and clients when crafting a policy that fits their specific requirements. We encourage employers to consult with us to ensure their policy strikes a balance between meeting their unique business demands while also complying with the Act.
THE RIGHT TO BE INFORMED ABOUT ELECTRONIC MONITORING
As part of the recently announced Bill 88, Working for Workers Act, 2022 (or the “Bill”), employers with 25 more employees as of January 1 will need to develop and implement a policy on electronic monitoring of its employees. The goal is to promote transparency as to how and why employers are tracking their employees’ use of computers, cell phones, and other devices, including GPS systems. The right to be informed about electronic monitoring applies to both remote and in office employees.
Bill 88 had its first reading on February 28, 2022, so, as of yet, there is no deadline for when a policy must be in place. However, the current draft of the Bill states that affected employers must implement a policy no later than 6 months after the Bill receives Royal Assent. Going forward, employers will have until March 1 of each year to implement a policy if they have 25 or more employees as of January 1 of that year.
The policy will need to disclose information as to whether employees are being electronically monitored, and it must be in writing. If the employer is monitoring its workforce, the policy will also need to describe how, when, and in what circumstances the monitoring takes place, as well as the purpose that the collected information is being used for.
Copies of the policy will need to be provided to employees within 30 days of the implementation of the policy to the workplace, or 30 days following any change to the existing policy. When a new employee joins, they must receive a copy of the policy within 30 days of becoming an employee.
While Bill 88 does not impose restrictions on electronic monitoring, employers should consider their current practices and confirm they are complying with relevant privacy legislation. Employers should also consider how to best draft an electronic monitoring policy that adequately discloses when and how collected information is being used while still protecting their legitimate business interests.
NEW PROTECTIONS FOR GIG WORKERS
Bill 88 also introduces the Digital Platform Workers’ Rights Act, 2022, which provides new protections to digital platform workers regardless of employment status. This Act defines a digital platform as “an online platform that allows workers to choose to accept or decline digital platform work.” Similarly, “digital platform work” is defined as “the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” In other words, the new changes are aimed at rideshare, courier, and delivery services, such as Uber and Skip the Dishes, and provides their workers new protections that they are otherwise excluded from under the Employment Standards Act. The onus is on the operator of the digital platform, defined as “a person that facilitates, through the use of a digital platform, the performance of digital platform work by workers, but does not include a temporary help agency” to comply with the legislation.
Affected digital platforms will need to ensure they comply with new rules on paying their workers, including (a) paying at least minimum wage for hours worked, (b) allowing workers to keep their tips, (c) and establishing regular pay periods. The Digital Platform Workers’ Rights Act, 2022 also provides workers with the right to information as to how the platform calculates pay, how and when it collects tips, and how the platform may penalize workers in the way that it distributes work. Finally, it creates new dispute resolution obligations, including the right for employment disputes to be resolved in Ontario as opposed to another jurisdiction, protection from reprisal if a worker chooses to pursue a dispute, and the requirement that the operator provide written notice to a worker if they are being removed from the platform.
The Bill has yet to be passed, and so, as with the right to be informed about electronic monitoring, these changes are not yet in force.
If passed, Bill 88 ushers in significant changes to the business model of many digital platforms. Given the scope of these changes, as well as the enforcement and penal provisions of the Digital Platform Workers’ Rights Act, 2022, digital platforms should seek counsel well before the coming into force date of these changes.
Special thanks to Articling Student Claire Copland for her work on this article.