In November of 2023, the Ontario government introduced new legislation, once again, amending the Employment Standards Act, strengthening employment and labour laws in the province. The Working for Workers Four Act, 2023 (Bill 149), which has yet to become law, encompasses a range of changes that, if passed, would introduce new obligations for Ontario employers, including several changes relating to job advertising and hiring practices. The bill is currently in its second reading. In this blog post, we’ll delve into the key provisions of Bill 149 that are particularly relevant for small businesses and employers in the province.
Salary Transparency
If Bill 149 passes, employers in Ontario who publicly advertise a job will be required to include in the posting the expected compensation for the position or the range of expected compensation for the position, ensuring that salary information is available to job applicants before they even apply. This provision aligns with a growing trend nationwide to increase pay transparency and make the job application process more efficient. Notably, British Columbia has recently passed similar legislation, but their legislation goes a step further and prohibits asking job applicants what they were making at their previous jobs. No such prohibitions are included in Bill 149.
AI Disclosure
Besides salary transparency, the legislation states that employers who publicly advertise a job and use AI to screen, assess or otherwise select applicants must provide a statement in the job posting explaining that they use AI in the hiring process. This provision is likely aimed at increasing transparency and addressing potential biases that may arise from using AI tools.
Retention of Job Postings
Employers must retain copies of every publicly advertised job posting for three years after the job posting is taken down. This can be done by the employer or by a third party the employer hires to manage this information and storage. Ultimately, it will likely be the employer’s responsibility to ensure they can access the job posting if asked to.
Banning Canadian Work Experience Requirements
One of the more unique amendments in this bill is that it would have a provision prohibiting employers from requiring job applicants to have Canadian work experience. This provision would make Ontario the first province in Canada to ban the use of Canadian work experience as a requirement in job postings. This shift aims to eliminate barriers for internationally trained workers in Canada.
Wage Protections for Restaurant and Hospitality Workers
The legislation seeks to strengthen wage protections for workers in the restaurant and hospitality sector by strengthening the language around prohibiting unpaid trial shifts. Furthermore, employers are prohibited from deducting wages in scenarios such as dine-and-dash or gas-and-dash incidents. Additionally, the bill outlines how tips should be paid to employees. It mandates posting tip-sharing policies in a conspicuous workplace location, with a requirement to retain the policy for three years after cessation.
Injured Workers’ Benefits
The bill includes provisions for “super indexing” increases to Workplace Safety and Insurance Board (WSIB) benefits, exceeding the annual inflation rate. This step is taken to support injured workers by enhancing their compensation and expanding coverage, but it may also result in higher premiums for employers in the future.
Consultations on Additional Measures
In addition to the proposed changes, the Ontario government announced it is actively engaging in consultations on the following topics:
Restricting Non-Disclosure Agreements (NDAs)
The government is exploring measures to restrict the use of Non-Disclosure Agreements in settling cases related to workplace sexual harassment, misconduct, or violence, once again, with the goal of increasing transparency and accountability in the workplace.
Job-Protected Leave for Critical Illnesses
The government is also considering the introduction of a new, job-protected leave for critical illnesses, aligning with the federal Employment Insurance sickness benefits of 26 weeks.
As Ontario continues to demonstrate a commitment to changing the employment and labour landscape, employers need to stay informed about these potential changes so they can prepare accordingly. If passed, this bill would require employers to make active changes concerning job postings, workplace practices, and employee rights.
This blog post was written by Maggie Casey, a member of our Employment Law and Commercial Litigation teams. She can be reached at 613-369-0362 or at magdalena.casey@mannlawyers.com.
