Over the course of his three decades, lawyer Stephen Gleave has become a go-to resource for understanding the intricacies of Canadian employment law. He has practiced labour law since 1990, litigating myriad landmark employment cases.
Whether you are an employee or a business owner, whether you work in Canada or the U.S., there is a high probability that developments in Canadian labour law will affect you directly, at some point. That is because the rules and regulations coming from Ottawa have a way of becoming a model for other jurisdictions, in North America and even around the world. In labour law, Canada is a laboratory for what works and what doesn’t.
Recently we talked with Stephen Gleave about the latest changes in Canadian employment and labor law, and his perspective on what may be over the horizon for employees and employers alike.
Q: How did the pandemic reshape employment and labor law?
Stephen Gleave: In some respects, it’s fair to say that the history of change in Canadian labor law can be dated by two types of abbreviations, BC and AC: Before COVID and After COVID. It’s just that dramatic.
The pandemic scrambled established patterns, norms and traditions. The idea of commuting a long distance to a job where you settle into the enclosed world of your office cubicle, emerging occasionally for the Everything Bagels in the break room, are largely over. Not every company realizes this, but employees themselves have moved on from this constricted approach to work.
Couple that with the fact that the labour market is still extremely tight, even in the face of a modest economic slowdown, and workers have the power to shape the employment relationship. So it’s a whole new ballgame when people are working remotely. There are new rules, new protocols, and sometimes unexpected situations that require new rules. And law is a key part of that.
During the pandemic, the nature of work, the ways employees communicate and collaborate, and the rules that govern manager-subordinate interactions were all transformed. This accelerated the normal pace of change, which in employment and labour law is basically a constant evolution.
One underlying trend that has gathered force in recent years is pay equity. In 2021 the Pay Equity Act began requiring employers in Canada to collect, analyze and act upon data that relates to gender disparities in compensation. It’s a continual process that focuses on more than just the dollar amount in the paycheck. Companies must convince the government that any substantial pay dissimilarities between men and women are the result of real differences in the character of the jobs analyzed. There is now a national pay equity commissioner who examines mandated annual reports from every federally-regulated business in Canada.
Q: It’s safe to say that new federal laws and regulations are just one part of the story. Just as in the U.S. with states, Canadian provinces have their own unique approaches to employment law. What are the main developments there?
Stephen Gleave: Yes, even as Parliament was passing landmark legislation, Ontario enacted a number of employment measures that will have wide-ranging impacts on all Canadian businesses.
The Ontario Working for Workers Act requires companies with 25 employees and above to establish a “disconnecting from work” policy. This new right is meant to provide employees breathing space from their work responsibilities after regular business hours, and to frustrate managers who may be compulsive late-night emailers. Ontario also barred companies from requiring prospective workers to sign non-compete agreements as a condition of employment.
Another new Ontario law put into place a set of “digital platform workers rights” that extend protections such as minimum wage, breaks and manner of compensation to online workers. Also on the cyber front, the province now requires companies with at least 25 employees to disclose how it may be electronically monitoring worker output.
Q: Was that a direct result of the remote worker phenomenon?
Stephen Gleave: Definitely. The recent emphasis on creating new digital rights is a reflection of changes that accelerated throughout society during the pandemic. As businesses move from an around-the-water-cooler standard to a wholly virtual reality to a hybrid model, government regulations and court decisions will try hard to stay relevant and adapt.
Q: You’ve noted that not all changes in the workplace occur as a result of government mandates. What are some of the other forces at work?
Stephen Gleave: Many changes happen naturally, shaped by economic and other forces. For example, wrongful dismissal suits have fallen off substantially amid the tight labour market. During the months of lockdown, businesses found it difficult or even illegal to terminate employees. As the pandemic receded, workers realized they still enjoyed a range of options in the employment marketplace, which makes finding a new and better job far more attractive than filing suit to keep the old one.
Q: What is your favorite quotation?
Stephen Gleave: I love this droll observation from one of Jerry Seinfeld’s monologues: “To me a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has read the inside of the top of the box.” That’s really true, our job as lawyers is to read the instructions — and beyond that, often to write new ones.
