More Legislative Changes on the Horizon for Ontario Employers

December 05, 2023

Written By Katelyn Weller, Carl Cunningham, Matthew Flynn and Ben Sissons

On November 14, 2023, the Ontario government tabled Bill 149, Working for Workers Four Act, 2023 (Bill 149) which, as of the date of this blog, has been referred to the Standing Committee on Social Policy. If implemented as it is currently drafted, Bill 149 would introduce several changes to Ontario’s Employment Standards Act, 2000 (ESA) and other employment-related legislation in Ontario.

These new proposals come on the heels of several other employee-friendly changes in recent years including:

• banning non-competes for most employees except for executive positions;
• requiring employers with 25 or more employees to have a policy on disconnecting from work (For more information, see: New Guidance on Ontario’s Disconnect from Work Policy and Ban on Non-Competes); and
• requiring employers with 25 or more employees to have a policy about electronic monitoring in the workplace (For more information, see: New Guidance on Ontario’s Electronic Monitoring in the Workplace Policy).

Below is an overview of only certain of the more material changes to the ESA being proposed by Bill 149, which will impact provincially-regulated employers in Ontario.

Job Postings

Pay Transparency

If passed as currently drafted, Bill 149 will introduce various new requirements for job postings, including a new provision that will make it mandatory for employers to disclose the range of expected compensation available for each position within their job postings. While Bill 149 does not currently provide any clarity on what forms of remuneration are included within the expected range of compensation, nor does it prescribe how employers should calculate such a range, the legislation notes that such details may later be prescribed by regulation.

As we discussed in our recent blog, Soft Opening of Pay Transparency in British Columbia, British Columbia passed the Pay Transparency Act earlier this year, which requires similar disclosure in publicly advertised job opportunities. As was the case in British Columbia, one of the driving forces behind the introduction of legislation requiring the disclosure of salary ranges is narrowing the gender pay gap that exists in Canada.

As you may recall, Ontario previously passed legislation around pay transparency, but the Pay Transparency Act, 2018 has never been proclaimed in force. The currently proposed amendments to the ESA appear much narrower in scope than the requirements that would have been required by the Pay Transparency Act, 2018 had it been proclaimed into force.

Disclosure Requirements Related to AI Use in the Hiring Process

Bill 149 will also require businesses to disclose the use of artificial intelligence (AI) within the hiring process directly on each job posting, subject to certain exceptions which may later be prescribed by regulation. AI systems can be used to screen out applicants and choose preferred candidates to interview. This proposed requirement aligns with the AIDA Companion Document, which flags AI systems that make decisions, recommendation, or predictions for services, including employment, as the impacts of such systems have potential discriminatory and economic harm. AIDA is the Artificial Intelligence and Data Act introduced into the House of Commons as part of Bill C-27, for An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts, also known as the Digital Charter Implementation Act 2022.

For more discussion on the AIDA Companion Document, see the Bennett Jones' blog, Artificial Intelligence—A Companion Document Offers a New Roadmap for Future AI Regulation in Canada.

Ban on Canadian Experience Requirement in Job Postings

Bill 149 also proposes a ban on the use of any requirements related to Canadian experience in job postings or any associated application forms, except as may be prescribed by future regulation. The intention being, as described in the Ontario government's press release, to help more qualified candidates with international experience progress in the hiring process.

Employee Pay

In addition to the enhanced requirements surrounding job postings, Bill 149 also proposes to make several general amendments to the ESA aimed at protecting employee wages, including:

• banning unpaid trial shifts by amending the term “training” under the ESA to include any employees performing work during a trial-period;
• clarifying that employers cannot deduct an employee’s wages for “dine and dash” event, in instances were a cash shortage or loss of property occurs as a result of a customer of a restaurant, gas station or other establishment leaving the establishment without paying for the goods or services taken from the establishment;
• mandating that employees must be paid tips or other gratuities by cash, cheque, direct deposit, or some other form as may be prescribed by regulation;
• clarifying that alternative arrangements made with employees regarding vacation pay are only valid if the employee accepts such arrangements; and
• mandating that employers who have instituted a tip or gratuity splitting/sharing policy post (and keep posted) such policy in at least one conspicuous place in the employer’s establishment where it is likely to come to the attention of employees.

Record Keeping

In addition to the above-mentioned requirements related to job postings and employee pay, Bill 149 would also make it a requirement for employers (or some other party arranged for by the employer) to retain 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. Bill 149 would also make it a requirement for employers to retain copies of any tip or gratuity sharing policy for three (3) years after the policy is no longer in effect.

Consultation on Ban of NDAs in Cases of Workplace Sexual Harassment, Misconduct and Violence

Additionally, the Ontario government announced that it would be conducting consultations and detailed analysis on ending the use of Non-Disclosure Agreements in the settlement of cases of workplace sexual harassment, misconduct or violence.

Takeaways

As we have seen in previous years, these proposed amendments can tend to move quickly throughout the legislature. Employers should look to review their hiring practices and potentially formalize their salary/pay scales to be prepared in the event Bill 149 is passed as currently drafted. Employers should also review their employee pay and record keeping practices and determine whether they would be compliant with the changes outlined above.

We will continue to keep a close eye on the status of Bill 149 and will provide updates as they become available. In the meantime, if you have any questions about any of the requirements discussed in this blog, or any of the other requirements introduced as part of Bill 149, please do not hesitate to contact any of the authors listed above or any member of the Bennett Jones Employment Services group.

Authors