Ontario unveils the fourth installment of its “Working for Workers” legislation

On November 14, 2023, the Government of Ontario tabled Bill 149, the Working for Workers Four Act, 2023¹, which proposes a number of amendments to Ontario’s Employment Standards Act, 2000 (ESA), Workplace Safety and Insurance Act, 1997, Digital Platform Workers’ Rights Act, 2022 (DPWRA) and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006.

Bill 149 is one of many recent employment law developments across Canada over the past several weeks.

What you need to know

• Employment standards amendments. If passed, Bill 149 will make a number of changes to the ESA, including the following:
  • Job posting requirements. In public job postings, employers will be required to disclose i) the expected compensation (or compensation range) of the position and ii) if artificial intelligence (AI) is used in the hiring process for that position. In addition, employers will be prohibited from including any requirements related to Canadian experience in publicly advertised job postings or any associated application forms. Publicly advertised job postings and associated application forms will need to be retained for three years after they are no longer accessible to the public.
  • Trial periods. Work performed during a trial period will be included within the meaning of “training” for the purposes of defining an “employee” in the ESA (which has the effect of prohibiting the use of unpaid trial periods for employees).
  • Deductions. Employers will be prohibited from making deductions from an employee’s wages if a customer of a restaurant, gas station or other establishment leaves without paying for the goods or services received.
  • Tips. Employers with tip-sharing policies will be required to post their policies in a conspicuous place. Tip-sharing policies will need to be retained for three years after they are no longer in effect.
• Limits for digital platform workers. Bill 149 will also amend the DPWRA to give the government authority to prescribe limits on recurring pay periods and paydays for digital platform workers, as well as rules for determining compliance with the minimum wage requirements.
• Consultations on NDAs and leaves of absence. At the time that Bill 149 was introduced, the Ontario government also announced that it would be launching consultations to i) restrict the use of NDAs in the settlement of workplace sexual harassment, misconduct or violence cases and ii) create a new job-protected leave for critical illnesses to match the length of the 26-week federal employment insurance sickness benefits.
• Additional provincial developments. Bill 149 is one of several employment law-related developments across Canada over the past several weeks, including British Columbia’s introduction of a regulation that provides further details on the preparation of pay transparency reports, PEI’s introduction of a bill related to paid sick leave, and consultations in Nova Scotia and New Brunswick regarding workplace harassment and sick leave entitlements, respectively.

Proposed job posting requirements

The most significant changes proposed by Bill 149 are the new requirements in connection with public job postings.

Disclosure of expected compensation

If Bill 149 is passed in its current form, it would require employers to disclose in any publicly advertised job posting the expected compensation (or range of expected compensation) for the position. This provision is reminiscent of the pay transparency legislation that has been introduced in other provinces in recent years (e.g., British Columbia and Price Edward Island). However, unlike comparable legislation, Bill 149 does not currently prohibit employers from asking employees about their pay history or from taking reprisal action against an employee for, among other things, making inquiries into their pay or disclosing their pay to another employee.

Ontario’s labour minister has suggested that the details of the new compensation transparency requirements will be finalized after a consultation period and has suggested that the government’s initial focus may be on jobs with salaries below $100,000 per year².

Disclosure of use of AI

Bill 149 would also require employers to disclose in public job postings if they use artificial intelligence in the screening, assessment or selection process for applicants to a position. If passed, Ontario would be the first Canadian jurisdiction to impose such a requirement.

Prohibition on requiring Canadian work experience

Finally, Bill 149 proposes to prohibit the use of Canadian work experience as a job requirement in public job postings and associated application forms. The stated purpose of this amendment is to “help even more internationally trained immigrants work in the fields they’ve studied”³. The proposed legislation does not strictly prohibit the consideration of Canadian work experience by an employer in making hiring decisions.

We note, however, that in 2013, the Ontario Human Rights Commission (OHRC) approved a “Policy on Removing the Canadian Experience Barrier”⁴, which states that “the OHRC’s position is that a strict requirement for Canadian experience is prima facie discrimination (discrimination on its face) and can only be used in very limited circumstances. The onus will be on employers and regulatory bodies to show that a requirement for prior work experience in Canada is a bona fide requirement”. In the associated policy brochure⁵, the OHRC states:

During a job interview, employers should not ask you where you got your experience. They should consider all of your work experience, in any country. Employers should only ask specifically about “Canadian” experience if they can show it is really needed to do the job (that it is a “legitimate requirement”) and that providing “accommodation” would cause “undue hardship”.

Therefore, employers who continue to consider Canadian work experience during the hiring process should do so with caution, and with their obligations under human rights legislation in mind.

Consultation on use of NDAs

In connection with the tabling of Bill 149, the government also announced that it would be launching consultations on restricting the use of non-disclosure agreements in the settlement of cases of workplace sexual harassment, misconduct or violence. This consultation comes on the heels of legislation passed in the United States, which prohibits the enforcement of NDAs that would prevent a sexual harassment or assault victim from speaking out about their allegations. It also follows Prince Edward Island’s recent introduction of legislation⁶, the first of its kind in Canada, which restricts the use of non-disclosure agreements in cases of discrimination or harassment.

Other employment law developments across the country

Bill 149 is one of many employment law developments we have seen across the country in the past several weeks.

Some highlights include the following:

• British Columbia recently published the Pay Transparency Regulation⁷, which provides further details on how employers should be preparing the now-required pay transparency reports.
• Prince Edward Island introduced Bill 106, which proposes to add new paid sick leave entitlements to the PEI Employment Standards Act.
• New Brunswick published a consultation paper regarding potential amendments to their employment standards legislation to increase the length of unpaid sick leave and to add a new paid sick leave entitlement.
• Nova Scotia has launched a consultation seeking feedback on workplace harassment and its potential inclusion in Nova Scotia’s Occupation Health and Safety Act to better prevent and address workplace harassment.