Recent Updates in Ontario Employment Law

The Ontario Government tabled Bill 149, Working for Workers Four Act, 2023 (“Bill 149”) on November 14, 2023.

In its current iteration, Bill 149 proposes to introduce the following protections to employees under existing employment legislation:

A. Employment Standards Act, 2000 (the “ESA”)

Job Posting Requirements – Compensation, Canadian Experience, and AI

As it stands, Bill 149 would introduce several requirements for employers who use a “publicly advertised job posting.” These include:

• Compensation: A range of expected compensation for the position, subject to certain conditions, limitations, restrictions, or requirements as may be prescribed by law.

• Canadian Work Experience: A prohibition on including in a posting or any associated application form any requirements related to Canadian work experience, except as may be prescribed by law.

• Artificial Intelligence: Where the employer uses artificial intelligence to screen, assess, or select applicants for a position, a statement disclosing the use of artificial intelligence, except as may be prescribed by law.

Employers will also be required to retain copies of every publicly advertised job posting and any associated application form for three years after access to the posting by the general public is removed.

There is currently no definition for “publicly advertised job posting” and this will be prescribed by regulation.

Vacation Pay

Ordinarily, an employer must pay vacation pay to an employee in a lump sum before the employee commences their vacation; however, an employee may agree to an alternate pay arrangement with their employer. Bill 149 will amend the ESA’s provisions on vacation pay to clarify that alternate pay arrangements with respect to vacation pay must be set out in an agreement.

Payment of Tips and Other Gratuities

Bill 149 will prescribe payment of an employee’s tips or other gratuities by cash, by cheque payable only to the employee, by direct deposit, or by any other prescribed method of payment. The current iteration of Bill 149 sets out specific requirements for the payment of tips or gratuities by cash or by direct deposit.

Tip Sharing

Bill 149 will amend the ESA to require employers with policies on sharing tips and other gratuities to post and keep a copy of the policy in at least one conspicuous place in the employer’s establishment where it is likely come to the employee’s attention. Employers must also retain copies of every written policy on sharing tips or gratuities for three years after the policy ceases to be in effect.

Compensation for “Trial Periods”

Bill 149 will amend the ESA to require any work performed during a trial period to be treated as “training.” Consequently, a trial period will be considered paid time.

Customer Theft

Bill 149 will amend the ESA to provide that employers cannot make deductions from an employee’s pay where a customer of a restaurant, gas station, or other establishment leaves the establishment without paying for the goods or services taken from, consumed at or received at the establishment.

B. Digital Platform Workers’ Rights Act, 2022

Bill 149 will amend the Digital Platform Workers’ Rights Act, 2022 to prescribe changes to recurring pay periods, rules for compliance with minimum wage, and pay days.

C. Fair Access to Regulated Professions and Compulsory Trades Act, 2006

Bill 149 will amend the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 to require the determination of the assessment of qualifications in a way that is transparent, objective, impartial, and fair.”

D. Workplace Safety and Insurance Act, 1997

Bill 149 will amend the Workplace Safety and Insurance Act, 1997 to permit indexing increases to WSIB benefits by creating a new regulation-making power to set out index increases above the annual rate of inflation.

Bill 149 will also establish a presumption that primary-site esophageal cancer is an occupational disease that occurs in firefighters or fire investigators due to the nature of their work.

Temporary Help Agency and Recruiter Licensing

On November 10, 2023, the Ontario Government announced that it has extended the timeframe for temporary help agencies and recruiters to file licensing applications from January 1, 2024 to July 1, 2024.

Consultations on Restriction of NDAs

The Ontario Government has announced that it will be commencing consultations concerning potential restriction on the use of non-disclosure agreements in the resolution and settlement of workplace sexual harassment, misconduct, or violence.

Takeaway

The team at Goulart Workplace Lawyers will continue to monitor Bill 149’s progress through the Ontario Legislature, further developments to the temporary help agency and recruiter licensing regime, and the ongoing consultation process. Should have any questions in the interim, we would be please to assist you.