Labour & Employment Law Blog

The Right to Disconnect from Work and the Downfall of Non-Compete Clauses

In October 2021, the Ontario government proposed a bill that would require employers with 25 employees or more to develop workplace policies to ensure that their employees will be able to “disconnect” from the duties and responsibilities of their job during non-work hours. This legislation was passed by the Ontario government as the Working for Workers Act, 2021, in November 2021. This legislation in turn makes significant changes to Ontario’s Employment Standards Act, 2000. The Ontario Labour Minister set out that this issue has come to a head recently because of concerns relating to the challenges of the COVID-19 pandemic in Ontario and elsewhere. Employees are expected by their employers to work from home in order to curb the spread of COVID-19, which in turn can lead to a blurring of lines between work and family or personal time.

The lines between work and home have been blurring well before the COVID-19 pandemic. This is mainly because of the advance in technology. In years past and especially prior to email and smartphones, once the employee left the office, workplace communications with that employee generally stopped until that employee returned to the workplace on the next working day. However, an employee of today can receive emails / texts / phone calls right to their smartphone or laptop and so the employer has incredibly easy access to the employee practically at all times. This can lead to employees not having effective boundaries between work and home or personal life.

It is questionable if this proposed Ontario legislation is really going to have a lot of impact on such issues. The first problem is that it is really up to the employer to develop a “policy.” What this policy is, what it will contain, how it will be implemented, etc. will probably be all up to the employer. Whether or not there are going to be any real requirements that must be contained in any such a policy as set out by the government is unknown (and unlikely).

Secondly, how the Ontario government is going to monitor employers for compliance to the Working for Workers Act, 2021, and the changes to Ontario’s Employment Standards Act, 2000 is unknown. And, again, it would be surprising if this legislation has any real teeth when it comes to enforcement or monitoring of employers and these work-life policies.

Another key feature of the legislation is that it will stop employers from entering into employment contracts that include non-competition clauses or provisions within the agreement for most employees. It is our understanding that the legislation has excluded those that can be qualified or characterized as “executives.” Generally, a non-competition clause is used by employers to try to prevent employees from competing with the employer’s work or business after the employee resigns or is terminated. It is important to note that these types of clauses were already quite difficult to enforce as there is a common law test that courts use to determine whether or not a non-competition or a “non-compete” clause should stand. It is also important to note that the legislation does not encompass non-solicitation clauses. These clauses are used by employers to prevent former employees from soliciting or “stealing” certain aspects for their business (like other employees or vendors) and, of course, the employer’s clients or customers. Like non-compete clauses there is a common law test that courts and lawyers use to determine whether or not these clauses can be enforced.

So where does that leave an overworked and frustrated employee? Pretty much in the same position regardless of whether or not there is a policy or a non-compete clause. An employee should take note of their job description right from the beginning and the responsibilities and duties that go along with their job including any policy relating to work-life balance. Employees should set clear exceptions with their employer as to when they will communicate with them during non-work hours or personal time. This will vary depending on the job. For instance, a high-level manager would reasonably be expected by their employer to respond to certain communications from their employer outside of the typical “9 to 5” hours than some others employees who may have less responsibility.

While the employer may have some flexibility, changing an employee’s job description or set of responsibilities, is really not that simple and may result in a breach of the employment relationship in any event. The operations of a business may change over time, however, the law will likely safeguard employees from being overburdened by their employers whether this requirement is legislated or not.

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.