Ontario Introduces Bill 149, Working for Workers Four Act, 2023
On November 14, 2023, the Ontario Government tabled Bill 149, Working for Workers Four Act, 2023 (“Bill 149”) which, if passed, will provide further protections for employees under various employment statutes, including the Employment Standards Act, 2000 (ESA), the Digital Platform Workers’ Rights Act, 2022, and the Workplace Safety and Insurance Act, 1997. Below are some of the key proposed changes of interest for employers.
New Job Posting Requirements (Salary Ranges, Use of Artificial Intelligence, Ban on Requiring Canadian Work Experience)
In its current form, Bill 149 will amend the ESA to introduce certain job posting requirements for “publicly advertised job postings”, including:
- a range of expected compensation for the position, subject to certain conditions, limitations, restrictions or requirements that will be prescribed by regulation;
- if applicable, a statement disclosing use of artificial intelligence to screen, assess or select applicants for a position, with certain exceptions to be prescribed by regulation; and
- a ban on including requirements related to Canadian work experience in the posting or in any associated application form, with certain exceptions to be prescribed by regulation.
Employers will also be required to retain or arrange for some other person to retain copies of every “publicly advertised job posting” for three years after access to the posting by the general public is removed. The definition of “publicly advertised job posting” will be prescribed by regulation.
New Requirements for Payment of Wages via Direct Deposit
Bill 149 will also amend the ESA to modify the conditions associated with payment to employees via direct deposit. Specifically, employers that pay employees their wages via direct deposit will be required to ensure that payment is made to a bank account selected by the employee and such bank account is in the name of the employee. The prior requirement that no person other than the employee or a person authorized by the employee have access to the bank account will remain the same. There may also be new requirements prescribed by regulation.
New Requirements for Tip Sharing
Bill 149 will further amend the ESA to require employers who have a policy in place with respect to the employer (or a director or shareholder of the employer) sharing in tips or other gratuities to post a copy of the policy in at least one conspicuous place in the employer’s establishment where it is likely to come to the attention of employees. Employers must retain a copy of the policy for three years after the policy ceases to be in effect.
The legislation also prescribes the method of payment for how tips or other gratuities must be paid and under what conditions.
“Trial Periods” Must Be Compensated
Bill 149 will also amend the ESA to require any work performed during a “trial period” to be akin to training, meaning that it must be paid time.
No Deductions for Customer Theft
Bill 149 will amend the ESA to prohibit employers from making deductions from an employee’s pay where a customer of a restaurant (“dine and dash”), gas station (“gas and dash”) or other establishment leaves the establishment without paying for the goods or services taken from, consumed, or received at the establishment.
New Changes Related to Digital Platform Workers
Bill 149 also proposes to amend the Digital Platform Workers’ Rights Act, 2022 to allow for changes to recurring pay periods, pay days, and rules for compliance with minimum wage via regulations that have yet to be published.
New Changes Related to Injured Workers
Bill 149 further seeks to amend the Workplace Safety and Insurance Act, 1997 to permit indexing increases to WSIB benefits above the annual rate of inflation and to establish a presumption in respect of primary-site esophageal cancer for firefighters and fire investigators.
The Ontario Government has also announced it will be launching consultations with respect to the potential restriction of the use of non-disclosure agreements (NDAs) in the settlement of cases of workplace sexual harassment, misconduct or violence, and the creation of a new, job-protected leave for critical illnesses to match the length of the 26-week federal Employment Insurance sickness benefits.
Takeaway for Employers
Bill 149 expands on legislative changes that the Ontario Government previously passed in 2021, 2022, and earlier this year, providing increased protections for employees and placing new duties on employers.
Our team will continue to track the progress of Bill 149 and will provide updates as they arise. In the meantime, if you have any questions regarding the impact of the proposed changes on your workplace, please do not hesitate to contact any member of our Labour & Employment team.