Adapting to the Future: Exploring the Amendments to the Employment Standards Act through the Working for Workers Acts in Response to Technological Advances

By: Nicole Kinley

Maintaining awareness of legislative changes in the dynamic field of employment law is crucial for all affected stakeholders: employees, employers, and their lawyers. A fundamental piece of workplace legislation in Ontario is the Employment Standards Act (“ESA”),^[1] which has undergone changes in recent years in response to hybrid work models and other work-related changes facilitated by digital transformation. The series of ‘Working for Workers Acts’ that have been enacted over the last few years (2021-2023) (the “series”) offer interesting insight into recent changes made to the ESA and, consequently, employees’ rights.

The series

Provincial and federal pieces of legislation govern employees’ work here in Ontario, including the Occupational Health and Safety Act^[2] and the Employment Insurance Act^[3]. However, the most crucial piece of legislation applicable to employees and employers who reside in Ontario is the ESA.^[4] The primary objective of the ESA is to protect the interests of employees by requiring employers to comply with certain minimum standards. This protection seeks to remedy the unequal bargaining power of employees. As public perceptions of work and what constitutes decent working conditions change, so too do the ESA’s standards. These changes are affected through amendments, like those enacted by the series.

The first in the series, Working for Workers Act, 2021,^[5] enacted provisions whose impacts importantly included prohibiting non-competition clauses and a “right to disconnect.”

Prohibiting non-competition agreements reflects Canadian Courts’ contemporary view of non-competition agreements: they represent an unreasonable restriction on someone being able to work. An employee’s “right to disconnect” was conceived from the growing need to establish firmer boundaries between an employee’s work and personal life. Ontario was the first province to legislate such a right, allowing employees to limit work-related communications outside of normal working hours, if they serve an employer with 25 or more employees. This right has become increasingly important as employers now enjoy constant access to their employees through digital communication channels. Platforms like Microsoft Teams, and Google Chat facilitate communication at all hours of the day, outside of what used to only be possible through e-mail or via phone call. This problem was further exacerbated by the global trend towards remote work and hybrid workplaces, following the COVID-19 pandemic, causing work hours to no longer be tied to office hours.

The second Act of the series, the Working for Workers Act, 2022,^[6] enacted a new requirement for creating a “written policy on electronic monitoring.” While this ESA amendment provides greater transparency regarding employers’ electronic monitoring practices, it does not appear to limit or prohibit such practices. In addition to amending the ESA, this Act enacted the Digital Platform Workers’ Rights Act, 2022.^[7] The Digital Platform Workers’ Rights Act establishes rights and protections that apply to all digital platform workers, which include those who perform ride share, delivery, courier or other prescribed services through the use of a digital platform.^[8] These rights and protections apply regardless of whether those workers can be classified as employees. This is crucial, particularly given that traditional Canadian common law tests for worker classification do not really account for this type of employment, making it more difficult for these workers to be classified as employees and receive the same protections. The Digital Platform Workers’ Rights Act attempts to remedy these vulnerabilities by conferring rights like the right to amounts earned,^[9] as well as the right to minimum wage,^[10] currently set at $15 per hour by the ESA. The former right prevents digital platform operators, the workers’ employers, from deducting tips or other gratuities from the workers’ earnings.

Finally, the amendments introduced by the Working for Workers Act, 2023^[11] “expand[ed] on the ground-breaking actions in the Working for Workers Acts, 2021 and 2022”.^[12] This notably includes giving employees who work from home greater protection by including them in the count for mass termination provisions under the ESA, entitling them to receive the same eight-week minimum notice of termination or pay-in-lieu as employees who work in-office. Working for Workers Act, 2023 also introduced regulatory changes that require employers to provide new hires with information in writing about their job, such as work location, hours of work, and pay; changes that protect precarious employees.

The series’ newest addition

Building on the achievements of the series, Bill 149, or the Working for Workers Four Act, 2023^[13], only recently receiving royal assent on March 21, 2024. Through amendments to both the ESA and the Digital Platform Workers’ Rights Act, this forward-looking legislation aims to empower workers in their career search by requiring employers to disclose salary ranges in job postings and indicate if artificial intelligence (AI) is used during the hiring process. These proposed amendments align with the ever-growing role of technology in the employment landscape, ensuring transparency and fairness in hiring practices.

Conclusion

As the employment landscape continues to evolve, so do the laws that govern it. The amendments introduced through the Working for Workers Acts signal a proactive approach to addressing the challenges posed by technology and consequently changing work environments. By staying informed about these changes, employees, employers, and their lawyers can navigate the complex intersection of technology and employment standards more effectively.

Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.

[1] Employment Standards Act, 2000, SO 2000, c 41 [“Employment Standards Act”].

[2] Occupational Health and Safety Act, RSO 1990, c O1.

[3] Employment Insurance Act, SC 1996, c 23.

[4] Employment Standards Act, s 3.

[5] Working for Workers Act, 2021, SO 2021, c 35.

[6] Working for Workers Act, 2022, SO 2022, c 7.

[7] Digital Platform Workers’ Rights Act, 2022, SO 2022, c 7 [“Digital Platform Workers’ Rights Act”].

[8] Digital Platform Workers’ Rights Act, s 1(1).

[9] Digital Platform Workers’ Rights Act, s 10(1).

[10] Digital Platform Workers’ Rights Act, s 9(1).

[11] Working for Workers Act, 2023, SO 2023, c 15.

[12] Backgrounder: Working for Workers Act, 2023, online: Ontario Newsroom <https://news.ontario.ca/en/backgrounder/1002846/working-for-workers-act-2023>.

[13] Bill 149, Working for Workers Four Act, 2023, online: Legislative Assembly of Ontario <https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-149>.