Ontario’s Bill 149 proposes new requirements for pay transparency, use of AI in job postings and other changes
The Government of Ontario has again proposed further changes to the Employment Standards Act, 2000 (Ontario) (the ESA) with its fourth “Working for Workers Act”, aptly named the Working for Workers Four Act, 2023 (Bill 149).
If passed, Bill 149 will introduce new requirements for job postings, including those related to pay transparency, use of artificial intelligence (AI) and limits on requiring Canadian work experience, as well as other changes addressing wage protections and workers’ compensation benefits. The amendments would also impose a number of other new obligations on employers in Ontario.
New requirements for job postings
If Bill 149 is passed into law, employers will be required to include in any publicly advertised job posting the expected compensation or the range of expected compensation for the position. The criteria for what constitutes a “publicly advertised job posting” is to be prescribed by regulation.
This pay transparency requirement is similar to that contained in the Pay Transparency Act introduced in British Columbia (the BC PTA) earlier this year (see our earlier blog post for more information on that legislation). This is not the first time that an Ontario government has tabled pay transparency legislation; in 2018, a prior government passed the Pay Transparency Act (the Ontario PTA), but it was not proclaimed into force.
Bill 149’s pay transparency requirements are not as significant as the changes that were recently introduced in British Columbia, or those that would have been imposed by the Ontario PTA in 2018. In particular, the BC PTA contains pay transparency reporting obligations as well as a prohibition against employers asking job applicants about their pay history or retaliating against employees for disclosing information about their compensation to other employees. The Ontario PTA also contained similar reporting obligations and prohibitions; however, as noted above, the Ontario PTA is not in force and the pay transparency requirements being proposed in Bill 149 are limited to requiring the disclosure of compensation ranges in publicly advertised job postings.
Canadian work experience
Bill 149 also proposes to prohibit employers in Ontario from including any requirements relating to Canadian work experience in publicly advertised job postings. The Government has indicated that this is intended to assist in reducing barriers faced by internationally trained immigrants from securing employment in their respective fields. The inclusion of Canadian experience requirements in job postings has long been discouraged by the Ontario Human Rights Commission, as it is arguably discriminatory under human rights legislation.
The amendments proposed through Bill 149 would also require that any employer who uses AI to screen, assess or select applicants for a position advertised in a publicly available job posting include a statement in the posting disclosing the use of AI. The Government has stated that this measure is intended to ensure that workers are not excluded from the job market because of technological biases and that worker’s privacy rights are protected.
Finally, if Bill 149 is passed, employers will be required to retain copies of publicly advertised job postings, and any associated application form, for three years from the date when access to the posting was removed from the general public.
Other proposed amendments
Bill 149 would make the following other changes to the ESA:
- Deductions: Bill 149 would amend the ESA to specify that employers may not withhold or deduct wages from an employee where a customer of a restaurant, gas station or other establishment leaves the establishment without paying for their goods or services.
- Tips: Bill 149 would amend the ESA to specify the permitted methods for paying an employee’s tips or other gratuities. Specifically, the legislation would provide that employees can be paid by cash, cheque, direct deposit (provided certain criteria are met) or other prescribed methods. If payment is made by cash or cheque, the employer must ensure that the cash or cheque is given to the employee at their workplace or at some other place agreeable to the employee. Bill 149 also proposes a requirement that if an employer has a policy in place with respect to sharing tips, the policy must be posted in a conspicuous place in the workplace and retained for three years after the policy ceases to be in effect.
- Vacation pay: Bill 149 would amend the ESA provisions relating to vacation pay. Under the current legislation, an employer is required to pay vacation pay as a lump sum before the employee commences vacation, although the parties may agree to an alternative arrangement. Bill 149 clarifies that such alternative pay arrangement must be set out in an agreement and vacation pay must be paid out in accordance with the timing set out in that agreement. If Bill 149 is passed, employers may need to consider whether changes to their employment agreements and/or onboarding paperwork are needed to clarify any agreement as to the timing of payment of vacation pay.
- Trial periods: Bill 149 would amend the meaning of “training” for the purposes of the definition of “employee” under the ESA such that a “trial period” would be included in the meaning of “training.” This also appears to be a clarifying change, since under the ESA employees must be paid for all work that is permitted to be done by the employee. According to the announcement regarding Bill 149, the amendment to the definition of training under the ESA is aimed at addressing unpaid trial shifts, which the Government has stated continues to be common in the restaurant and service industries in Ontario.
Injured worker benefits
Bill 149 includes amendments to the Workplace Safety and Insurance Act, 1997 that would enable “super indexing” increases to Workplace Safety Insurance Board benefits above the annual rate of inflation, which may result in higher premiums for employers in the future.
Digital platform workers
Bill 149 also proposes to amend to the Digital Platform Workers’ Rights Act, 2022 to provide that certain limits on recurring pay periods and pay days may be prescribed by regulation, which has not yet been released.
Though not contained in Bill 149, the Ontario Government also announced that it will be launching a consultation on a new, job-protected leave to match the length of federal Employment Insurance sickness benefits, which is 26 weeks. The Government also stated that it intends to hold a consultation to restrict the use of non-disclosure agreements in the settlement of cases of workplace sexual harassment, misconduct or violence.
The amendments contained in Bill 149 would come into force on various dates following Royal Assent. The Bill is currently in second reading. If passed, employers in Ontario would, among other things, need to update their publicly advertised job postings to satisfy these additional requirements.
We will continue to monitor the progress of the bill. For any additional information on these proposed changes, please contact a member of the Osler Employment and Labour Department.