Further to our update on November 9, 2023, regarding Ontario's plan to introduce new legislation that would impact several industries, the Working for Workers Four Act, 2023 ("Bill 149") received Royal Assent on March 21, 2024. Bill 149 brings further changes to Ontario workplace legislation, including the Employment Standards Act, 2000 ("ESA") and the Workplace Safety and Insurance Act, 1997 ("WSIA"), among others. We highlight some of the key changes below.
AMENDMENTS TO THE ESA
A "Dine-and-Dash" Provision (in force as
of March 21, 2024)
Bill 149 prohibits the practice of an employer making deductions
from an employee's pay because a customer leaves an
establishment without paying for the goods or services received.
This provision applies to restaurants, gas stations, and any other
establishment, which is defined as any location where an employer
carries on business.
Trial Periods (in force as of March 21,
2024)
The definition of "employee" in the ESA includes
a person who receives training from an employer. Bill 149 ensures
that "training" includes any work performed during a
trial period. This will effectively put an end to the practice of
unpaid trial periods.
Payment and Sharing of Tips and Gratuities (taking
effect as of June 21, 2024)
Bill 149 sets out how an employee shall be paid tips and
gratuities, which mirrors the rules on how an employee is to be
paid wages. Specifically, tips and gratuities must be paid by cash,
cheque, direct deposit, or by any other prescribed method. If paid
by direct deposit, employers will be required to ensure that
payment is made into an account which is selected by the employee
and in the employee's name. In addition, if the employer has a
policy that sets out how tips and gratuities are to be shared among
employees, this policy must be posted in a conspicuous location in
the workplace. A copy of this policy must be retained for three (3)
years from the date that the policy ceases to be in effect.
Transparency in Job Postings (taking effect on a
future date to be named by proclamation)
Bill 149 will require employers to provide an expected compensation
range on all publicly advertised job postings. In addition, an
employer who uses artificial intelligence to screen, assess, or
select applicants will be required to disclose this practice on all
publicly advertised job postings. Bill 149 does, however, provide
the Government of Ontario with regulatory powers to establish
exceptions to this rule. Employers will also be required to retain
copies of all publicly advertised job postings for three (3) years
after access to the posting by the general public has been removed.
Note that "artificial intelligence" and "publicly
advertised job posting" will be defined in future
regulations.
Prohibition on Requiring Canadian Work Experience
(taking effect on a future date to be named by
proclamation)
Bill 149 provides that an employer's publicly advertised job
posting will be precluded from including in the posting or in any
associated application form any requirements related to Canadian
work experience. Exceptions to this prohibition will be established
by regulation.
AMENDMENTS TO THE WSIA
Esophageal Cancer (taking effect on a future date to
be named by proclamation)
Currently, if a firefighter or fire inspector suffer from
esophageal cancer, it is presumed to be an occupational disease
that occurs due to the nature of the worker's employment if
they had at least 25 years of service prior to the diagnosis. Bill
149 will provide for the same presumption after only 15 years of
service.
Additional Indexing Factor (taking effect on a
future date to be named by proclamation)
Bill 149 provides for regulation-making authority with respect to
an additional indexing factor. The Ministry of Labour referred to
potential regulations under this amendment as "super
indexing", which may increase employee compensation through
Workplace Safety and Insurance Board benefits.
OTHER AMENDMENTS
The Digital Platform Workers' Rights Act, 2022, which is not yet in force, will be amended to provide the Government of Ontario with regulation-making authority with respect to compliance rules for providing minimum wages and for the establishment of a recurring pay period. These changes will come into effect on the same date that the original minimum wage provisions come into force, which has yet to be announced.
Bill 149 will also amend the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 by providing regulation-making authority with respect to the establishment of transparent, objective, impartial and fair assessment of qualifications by regulated professions. These changes will also take effect on a future date to be named by proclamation.
TAKEAWAY
Employers should take note of the Bill 149 legislative changes already in force and turn their mind to planning for the changes to come. Furthermore, the Ontario government recently announced that it would be holding consultations on potentially restricting non-disclosure agreements in the settlement of cases of workplace sexual harassment, misconduct or violence, which could be the subject to future legislation. We will provide updates on future developments as more information becomes available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.