On November 14, 2023, the Government of Ontario introduced the Working for Workers Four Act, 2023 ("Bill 149"). If passed, the proposed legislation will amend the Ontario Employment Standards Act, 2000 (the "ESA") to include a new section pertaining to job postings, which would contain the new pay transparency provisions, prohibit the posting of requirements relating to Canadian experience, and require disclosure of the use of artificial intelligence ("AI") in the recruitment process. The Government of Ontario has stated that the purpose of these legislative changes is to provide additional transparency to job seekers and to help internationally-trained workers occupy positions in their fields of study.
This article summarizes the above proposals, along with other notable changes proposed by Bill 149 in respect of vacation pay and wage protection, and certain consultations that will be launched. In addition, we provide a brief update on Bill 79, the Working for Workers Act, 2023, which received Royal Assent on October 26, 2023.
We note that Bill 149 also amends certain provisions of the Digital Platform Workers' Rights Act, 2022, the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, and the Workplace Safety and Insurance Act, 1997, which we have not discussed in this post.
Job Postings: Pay Transparency and Work Experience Requirements
If passed, Bill 149 will require every employer who advertises a "publicly advertised job posting" to include information about the expected compensation, or the range of expected compensation, for the position. The term "publicly advertised job posting" will be defined in the regulations, and exceptions to what constitutes a "publicly advertised job posting", as well as conditions, limitations, restrictions, or requirements in respect of a "range of compensation" may be prescribed. As such, we expect that future regulations will include details and more specific parameters around the new pay transparency requirements.
In addition to the above, employers will be required to retain (or arrange for the retention of) copies of every publicly advertised job posting and any associated application form for three (3) years after access to the posting by the general public is removed.
Notably, Ontario's Labour Minister David Piccini has suggested to the media that the government is concerned with the lack of transparency surrounding positions with an annual salary of $100,000 or less. We will continue to monitor the progress of Bill 149, as future iterations, or proposed regulations, may contain disclosure thresholds and other specifications.
Job Postings: Disclosing AI Use
If passed, Bill 149 will also require employers to disclose the use of AI during the hiring process. Specifically, the bill provides that "every employer who advertises a publicly advertised job posting, and who uses [AI] to screen, assess, or select applicants for the position, shall include in the posting a statement disclosing the use of the [AI]." This new section would not apply to any publicly advertised job posting that meets criteria as may be prescribed through future regulations.
Vacation Pay and Agreement re: Method of Payment
The default rule under the ESA is that vacation pay is to be paid to the employee in a lump sum before the employee commences vacation. Bill 149 would clarify that an employee can agree to the payment of vacation pay in accordance with a different arrangement, provided the arrangement is set out in an agreement that the employee has made with the employer.
Wage Protection Rules
Bill 149 would further amend the ESA to ban the use of unpaid trial shifts and to prescribe permitted methods of paying tips and other gratuities. In addition, an employer would be prohibited from deducting from wages in the event a customer of a restaurant, gas station, or other establishment leaves without paying for their goods or services. Employers with a policy in place with respect to the employer, or a director or a shareholder, sharing in tips or other gratuities would be required to post the policy in at least one (1) conspicuous place in the employer's establishment where it is likely to come to the attention of employees. This policy would be required to be retained for three (3) years after ceasing to be in effect.
Bill 79 Update
Earlier this year, we wrote about the Government of Ontario's introduction of Bill 79, which, having now received Royal Assent, makes several amendments to the ESA and the Ontario Occupational Health and Safety Act (the "OHSA"). The key changes set out in Bill 79 are described in detail in our earlier blog post.
These changes include updates to the ESA mass termination rules, which clarify that employees who work exclusively from home are to be included within the threshold for determining whether a mass termination has occurred within an employer's "establishment." For context, where the number of employees at an employer's "establishment" to be terminated within a four (4) week period exceeds 50, enhanced notice of termination entitlements will apply.
We also note that on November 10, 2023, Ontario Regulation 340/23 was filed to amend the Termination and Severance of Employment Regulation and its provisions relating to mass terminations. These changes amend the content requirements of the Form 1 notice of mass termination that must be provided to the Director of Employment Standards and impacted employees.
Finally, we remind employers that Bill 79 increases the maximum fine for a corporation convicted under the OHSA, from $1,500,000 to $2,000,000; a penalty in this range could be imposed for each OHSA conviction.
The Government of Ontario has announced that it will be launching consultations to:
- Restrict the use of non-disclosure agreements in the settlement of cases involving workplace sexual harassment, misconduct or violence, and identify legislative options in respect of same; and
- Create a new job-protected leave for critical illnesses, which would match the available 26-week period of federal Employment Insurance sickness benefits.
We expect that further legislative changes may be made to reflect the outcome of the above consultations.
If Bill 149 passes, the ESA amendments will come into force on the date the legislation receives Royal Assent, three (3) months thereafter, or in some cases on a day to be proclaimed by the Lieutenant Governor.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.