Last year the Ontario Provincial Government imposed two new obligations on employers with 25 or more employees.
The first is the requirement to have a written policy with respect to employees disconnecting from work.
The second is the requirement to have a written policy regarding any electronic monitoring processes that the employer uses to monitor employees.
Many employers have not complied with these two requirements for a number of reasons:
- The Government made little effort to inform employers of these requirements.
- The Government appears to have established few if any consequences for failing to comply with these new legal requirements.
- To my knowledge the Government has taken no steps to proactively enforce these new requirements.
In my experience some employers who introduced these two new policies have often included provisions in the policies that were not required by law. These provisions take away some of the employer’s management rights. In these situations, the employer often cuts and pastes a free draft policy from the internet or has retained an HR consultant who has included these non-required provisions and has not explained their legal significance to the employer. As a result, the employer has been placed at a competitive disadvantage in comparison to employers who have not complied with the requirements.
I think the government’s actions promote non-compliance with the new legal requirements. After all, if an employer becomes aware of this law and finds out its competitors are not complying with immunity then why would an employer put themselves at a competitive disadvantage?
2 Key Take-Aways
- The Ontario government should be enforcing the rule of law but by its actions I think it is – perhaps inadvertently – encouraging law breaking. Bottom line: if the government decides to impose a law for public policy reasons then it should be enforced. Otherwise, employers who decide to comply are placed at a competitive disadvantage compared to employers who do not follow the law.
- Law-abiding employers who are trying to implement these policies should ensure they are getting good legal advice so that their policies clearly comply with the law without taking away from their existing management rights which put themselves at a competitive disadvantage in the marketplace.
About the author: Doug MacLeod is the founder of the MacLeod Law Firm (www.macleodlawfirm.ca), a Canadian Labour and Employment Law Firm. For 30 years, Doug has focused exclusively on workplace law and provides advice and representation in all areas including employment contracts, employment standards, workplace health & safety, human rights, workplace harassment, negotiating collective agreements, advising on employee grievances and complaints, and employee terminations. Doug was the 2018 recipient of the Ontario Bar Association’s Award of Excellence (Labour & Employment Law Section). He can be reached at (416) 317-9894 or doug@macleodlawfirm.ca
