The Working for Workers Act: What Changed and What Didn't

Three Acts, Three Years, One Brand

Between October 2021 and December 2023, the Ontario government passed three pieces of legislation under the "Working for Workers" banner. Bill 27, the Working for Workers Act, 2021, received Royal Assent on December 2, 2021. Bill 79, the Working for Workers Act, 2023, followed on March 20, 2023. And Bill 149, the Working for Workers Act, 2023 (yes, another one in the same year), received Royal Assent on December 4, 2023.

The political framing was consistent across all three: Ontario was modernizing its employment laws for the 21st century, protecting vulnerable workers, and adapting to the realities of remote work, the gig economy, and digital platforms. The Minister of Labour's press releases described the legislation as "ground-breaking" and "historic."

Some of it was. Most of it was not. And understanding the difference matters enormously if you are an employee trying to figure out what rights you actually have.

Bill 27: The Non-Compete Ban and the Right to Disconnect

The first Working for Workers Act contained two headline provisions that generated enormous media attention: a ban on non-compete agreements and a requirement for employers to have a "right to disconnect" policy.

The Non-Compete Ban

Section 67.2 of the Employment Standards Act, 2000 (ESA), as added by Bill 27, provides that no employer shall enter into an employment contract or other agreement with an employee that includes a non-compete agreement. A "non-compete agreement" is defined as an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project, or other activity that is in competition with the employer's business after the employment relationship between the employee and the employer ends.

This was genuinely significant. Ontario became the first Canadian province to impose a statutory ban on non-compete clauses in employment agreements. Previously, non-competes were governed entirely by common law, under which they were presumed to be restraints of trade and unenforceable unless the employer could demonstrate that the clause was reasonable in scope, duration, and geographic reach. Courts struck down non-compete clauses far more often than they enforced them — but the clauses still had a chilling effect. Employees who did not know the law assumed the clause was binding. Employers used that uncertainty as leverage.

The statutory ban changed the calculus. It does not matter whether the non-compete is reasonable. It does not matter whether the employer has a legitimate business interest. If the agreement was entered into on or after October 25, 2021, and the employee is not an executive — defined as a 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 — the non-compete is void.

What it did not change. The ban does not apply to non-solicitation clauses. An employer can still prohibit a departing employee from soliciting clients, customers, or other employees, provided the non-solicitation clause is reasonable at common law. The ban also does not apply to non-compete provisions in the context of a sale of business, where the seller agrees not to compete with the buyer. And it does not apply retroactively — non-compete clauses in agreements signed before October 25, 2021 remain subject to common law analysis.

The executive exception is also broader than many employees realize. The Act lists specific C-suite titles, but courts will likely look at substance over form. An employee whose title is "Vice President of Strategy" but who functions as the chief operating officer may fall within the exception. The question is the nature of the role, not the title on the business card.

The Right to Disconnect

Section 21.1 of the ESA, as added by Bill 27, requires every employer that employs 25 or more employees as of January 1 of any year to have a written policy with respect to disconnecting from work. The policy must be in place before March 1 of that year.

"Disconnecting from work" is defined 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.

That sounds meaningful. It is not — or at least, not in the way most employees hope.

The Act does not give employees a right to disconnect. Read that sentence again. The Act requires employers to have a policy about disconnecting. The content of that policy is entirely at the employer's discretion. An employer could, in full compliance with the statute, adopt a policy that says: "Employees are expected to be available outside regular business hours when operational needs require it. Managers will make reasonable efforts to limit after-hours communications, but employees should respond to urgent requests promptly."

That policy complies with the Act. It also provides the employee with precisely zero protection against the constant expectation of availability that characterizes modern knowledge work.

Compare this to France's approach. France's El Khomri law (2017) imposes an actual obligation on employers to negotiate disconnection rights with employee representatives and to regulate the use of digital tools to ensure respect for rest periods and personal life. The French approach creates substantive rights. Ontario's approach creates a paperwork obligation.

Enforcement. The Ministry of Labour can issue orders requiring employers to establish a policy. An employer that does not have a policy, or that does not provide a copy to employees within 30 days of the policy being prepared, can be subject to a compliance order. But there is no penalty for the content of the policy. There is no individual right for an employee to refuse after-hours communications. There is no remedy for an employee who is disciplined for not responding to weekend emails.

The right to disconnect, as enacted in Ontario, is a right in name only.

Bill 79: Electronic Monitoring and Digital Platform Workers

The second Working for Workers Act focused on two emerging issues: employer surveillance of employees and the status of workers on digital platforms.

Electronic Monitoring Disclosure

Section 41.2 of the ESA, as added by Bill 79, requires employers with 25 or more employees to have a written policy on electronic monitoring of employees. The policy must describe whether the employer electronically monitors employees and, if so, a description of how and in what circumstances the employer may electronically monitor employees, the purposes for which information obtained through electronic monitoring may be used, the date the policy was prepared and the date any changes were made.

This was genuinely novel. No other Canadian jurisdiction had imposed a statutory obligation on employers to disclose their electronic monitoring practices. In an era of keystroke loggers, screenshot capture software, GPS tracking, email monitoring, and AI-powered productivity surveillance, the transparency requirement addressed a real information asymmetry between employers and employees.

What it does. The provision forces disclosure. An employer that monitors employee keystrokes, captures screenshots, tracks mouse movements, reads emails, monitors web browsing, or uses GPS to track company vehicle locations must tell employees that it does so. For many employees, the disclosure itself will be the first time they learn the extent to which their employer is watching.

What it does not do. The provision does not restrict or prohibit electronic monitoring. It does not require the employer to justify its monitoring practices. It does not create a right for employees to opt out. It does not establish any substantive standard for what constitutes reasonable monitoring. An employer can monitor everything — every keystroke, every email, every website visit, every moment of idle time — provided it discloses that monitoring in its policy.

The disclosure-only model is, at best, a first step. At worst, it normalizes surveillance by creating a legal framework that assumes monitoring is permissible and asks only that the employer be transparent about it. Privacy advocates argued for substantive restrictions — limits on the types of monitoring permissible, requirements for proportionality, prohibitions on certain invasive techniques. The government opted for transparency instead.

Digital Platform Workers

Bill 79 and its successor Bill 149 introduced new provisions for "digital platform workers" — individuals who perform work assignments through an operator's digital platform, including ride-share drivers and food delivery couriers. The provisions include a minimum wage that applies to digital platform workers for each work assignment, a recurring pay period and pay day, a right to information about how pay is calculated, restrictions on the removal of tips, and a right to resolve disputes in Ontario (overriding contractual provisions that require arbitration in foreign jurisdictions).

The last point was directly responsive to the Supreme Court of Canada's decision in Uber Technologies Inc. v. Heller, 2020 SCC 16, in which the Court found that Uber's standard form contract — which required drivers to resolve disputes through arbitration in the Netherlands, at a cost of US$14,500 in non-refundable filing fees — was unconscionable. The Working for Workers Acts codified the principle that workers in Ontario should be able to resolve disputes in Ontario.

What the digital platform provisions do not do. They do not reclassify gig workers as employees. The provisions create a parallel set of minimum standards for digital platform workers that is narrower than the full ESA. Platform workers do not receive termination notice, severance pay, overtime pay, vacation pay at the standard rate, or most other ESA protections. They receive a minimum wage floor, pay transparency, tip protection, and access to Ontario dispute resolution. It is a significant improvement over the previous framework — which was essentially nothing — but it falls well short of full employee status.

Bill 149: Job Posting Transparency and Sick Leave

The third Working for Workers Act addressed a grab bag of issues, the most prominent being job posting requirements and changes to sick leave.

Job Posting Requirements

Section 8.4 of the ESA, as added by Bill 149 (not yet proclaimed in force as of May 2024), will require employers to include certain information in publicly advertised job postings. The requirements include a statement of the expected compensation or range of expected compensation for the position, a statement disclosing whether artificial intelligence is used in the hiring process, and a prohibition on including any requirement for "Canadian experience" in a job posting.

The compensation disclosure requirement is the most impactful. Ontario employers have historically been resistant to salary transparency, preferring to assess each candidate's salary expectations individually — a practice that systematically disadvantages candidates with less bargaining power, including women, racialized individuals, and recent immigrants. The requirement to disclose expected compensation in the posting itself levels the information playing field.

The AI disclosure requirement acknowledges the growing use of automated tools in recruitment, including resume screening algorithms, AI-powered video interview assessments, and automated skills testing. While the disclosure does not restrict the use of such tools, it ensures candidates know when they are being evaluated by a machine rather than a human.

The prohibition on "Canadian experience" requirements targets a well-documented barrier for newcomers to Canada, whose professional experience from other countries is often discounted or ignored. The Ontario Human Rights Commission had identified "Canadian experience" requirements as a form of discrimination on the basis of place of origin, race, and ethnic origin. The legislative prohibition provides a clearer and more enforceable standard than the case-by-case approach of human rights complaints.

Sick Leave Changes

Bill 149 also amended the ESA's sick leave provisions. Prior to the amendment, the ESA provided employees with three days of unpaid sick leave per calendar year. Bill 149 clarified that employers cannot require employees to provide a medical note as a condition of taking statutory sick leave unless the absence is longer than the prescribed period.

This addressed a longstanding complaint from both employees and healthcare providers. Doctors and nurse practitioners had objected to the administrative burden of writing absence notes for minor illnesses — a practice that consumed appointment time, cost the healthcare system money, and provided little value to employers beyond discouraging legitimate leave use. The medical community had been vocal about the problem for years, and the legislative response was widely supported.

What did not change. Ontario still does not provide paid sick leave under the ESA. The three-day statutory entitlement is unpaid. The COVID-era temporary paid sick days (introduced in 2021 under the COVID-19 Putting Workers First Act) expired on March 31, 2023. Ontario remains one of the few jurisdictions in Canada without legislated paid sick leave, despite persistent advocacy from public health officials, labour organizations, and healthcare providers.

What Actually Changed: A Realistic Assessment

The cumulative effect of the three Working for Workers Acts is a mixed bag. Some provisions represent genuine and meaningful improvements to employee rights. Others are largely cosmetic.

Provisions with real teeth

The non-compete ban. This is the single most impactful provision across all three Acts. It eliminates an entire category of restrictive covenant from Ontario employment law (with limited exceptions) and provides a clear statutory remedy. Employees no longer need to litigate the reasonableness of a non-compete — it is simply void. The provision has already changed how employment lawyers draft post-employment restrictions, shifting focus to non-solicitation and confidentiality clauses.

The digital platform minimum standards. While far from perfect, the creation of a statutory floor for gig workers is a significant development. The minimum wage entitlement, tip protection, and Ontario dispute resolution requirements address the most egregious aspects of platform work arrangements. The Supreme Court's decision in Heller made legislative action inevitable; the Working for Workers Acts provided it.

The job posting transparency requirements (when proclaimed in force). Salary transparency in job postings will materially benefit employees in salary negotiations, reduce pay inequity, and improve labour market efficiency. This is a provision that, once in force, will change the practical experience of job searching in Ontario.

Provisions with limited impact

The right to disconnect. A policy requirement with no substantive obligation is not a right. Until Ontario imposes actual restrictions on after-hours communications or creates an individual right to refuse, the disconnect provision is a placeholder.

The electronic monitoring disclosure. Transparency without restriction normalizes the thing being disclosed. The provision tells employees they are being watched. It does not prevent or limit the watching. A future government could build on this foundation by imposing proportionality requirements or restricting certain invasive monitoring techniques, but the current provision does not.

The sick leave note restriction. Helpful in practice but narrow in scope. The fundamental problem — three days of unpaid sick leave in a province where a single illness can last a week — remains unaddressed.

The Enforcement Gap

Across all three Acts, the enforcement mechanism remains the same: complaints to the Ministry of Labour's Employment Standards branch, which can investigate, issue compliance orders, and impose monetary penalties. The Ministry can also conduct proactive inspections and audits.

In practice, enforcement is complaint-driven and resource-constrained. The Ministry processes thousands of complaints per year, and resolution timelines can be lengthy. Employees who do not know their rights — which is most employees — do not file complaints. Employees who fear retaliation — which is many employees — do not file complaints. And the maximum penalty for a contravention of the ESA by a corporation is $100,000 per offence, an amount that many large employers would consider a cost of doing business.

The Working for Workers Acts added new obligations without meaningfully expanding enforcement capacity. The provisions are only as effective as the enforcement mechanisms behind them, and those mechanisms have been stretched thin for years.

What Comes Next

The Working for Workers brand has proven politically durable. As of this writing, there are indications that additional legislation may follow. The areas most likely to see further reform include:

Paid sick leave. The pressure for legislated paid sick leave has not abated since the expiration of the COVID-era temporary program. British Columbia introduced five days of paid sick leave in 2022. Federal workers received ten days of paid sick leave under the Canada Labour Code amendments in 2022. Ontario remains the notable holdout among major Canadian jurisdictions.

Algorithmic management. The electronic monitoring disclosure was a first step. As AI-powered management tools become more prevalent — automated scheduling, performance scoring, productivity measurement, and even automated discipline recommendations — the pressure for substantive regulation will increase.

Gig worker classification. The minimum standards for digital platform workers were explicitly designed to avoid the classification question. But the fundamental issue — whether gig workers are employees or independent contractors — remains unresolved. The parallel standards framework may be a permanent feature of Ontario employment law, or it may be a way station on the road to broader reclassification.

For now, the three Working for Workers Acts represent the most significant expansion of Ontario employment standards in a generation. Whether they represent genuine progress or political branding depends on which provisions you examine — and whether you measure impact by the law on the books or the law in practice.