On November 14, 2023, the Ontario provincial government tabled Bill 149 (the Working for Workers Act, 2023). This is the fourth installment in Ontario’s “working for workers” legislative changes. If passed into law, Bill 149 will result in amendments to several employment statutes including the Employment Standards Act, 2000 (“ESA”) and the Digital Platform Workers’ Rights Act, 2022 (“DPWRA”).
New Requirements for Job Postings
Bill 149 proposes to amend the ESA to require that employers disclose in public job postings:
the expected compensation range for the position in question; and
whether artificial intelligence (AI) will be used to screen, assess or select applicants.
Employers will also be prohibited from including requirements related to “Canadian experience” in either the job posting or associated application forms and must retain a copy of the job posting for a 3-year period after the posting is removed from public access.
Compensation During Trial Periods
To prevent situations where individuals are directed to work for free during a trial period, the ESA will be amended such that work performed during a trial period is characterized as “training” and thus falls within the statutory definition of who is considered an employee (and thus entitled to be paid at least the applicable minimum wage while being trained).
Tip Sharing, Payment of Wages and Wage Deductions
The ESA will further be revised to:
prohibit employers from making deductions from an employee’s wages where a customer at a restaurant, gas station, or other establishment leaves without paying for goods or services. In essence, this revision will serve to protect staff from being responsible for losses as a result of customer theft (i.e., a “dine and dash” or similar);
require employers with policies stating that it (or a director or shareholder of the employer) may share in tips or other gratuities (i.e., tip pooling policies) to post a copy of the policy in at least one conspicuous location within the workplace. This requirement, as presented within Bill 149, would come into effect 3 months after Royal Assent. Employers will also be required to retain a copy of the policy for a 3-year period after it cease to be in effect; and
require that employers which pay their staff via direct debit ensure that payment is made to a bank account of the employee’s choice (and that the account be in the name of the employee).
Changes to the DPWRA
Bill 149 proposes to amend the DWPRA to allow for changes to recurring pay periods, pay days, and rules for compliance with minimum wage.
Potential Restrictions on Non-Disclosure Agreements (NDA’s)
While not part of Bill 149, the provincial government has also announced that it will conduct consultations to consider whether the use of NDA’s should be limited (or prohibited) as part of settlement in cases of workplace harassment or violence. The province is also considering a new 26-week job-protected critical illness leave to be consistent with the duration for which Employment Insurance sickness benefits may be received.
Takeaways for Employers
Ontario employers should be aware of, and monitor, these pending changes. It may also be worthwhile at this stage to review existing practices and policies to identify any potential deficiencies that may materialize if Bill 149 becomes law (which is likely). By taking these steps in advance, employers may limit any disruption to their operations and ensure continued compliance.
Employers with specific questions about these pending changes, or that may need help in revising their internal processes, are invited to contact our firm for assistance.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.