On March 21, 2024, the Working for Workers Four Act, 2024 (“Bill 149”) received Royal Assent. Bill 149 amends the Ontario Employment Standards Act, 2000 (the “ESA”) to include a new section pertaining to job postings, which contains new pay transparency provisions, prohibits the posting of requirements relating to Canadian experience, and requires disclosure of the use of artificial intelligence (“AI”) in the recruitment process. Bill 149 also makes certain changes to the ESA in respect of vacation pay and wage protection.
The changes with respect to job postings, pay transparency and AI will not come into force until a future date, to be proclaimed by the Lieutenant Governor.
Bill 149 also amends certain provisions of the Digital Platform Workers’ Rights Act, 2022, the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, and the Workplace Safety and Insurance Act, 1997. These changes are not discussed in this post.
We previously wrote about Bill 149 when it was still under proposal. Our previous blog posting contains further detail as to rationale and intention behind the legislative changes introduced by Bill 149.
Job Postings: Pay Transparency and Work Experience Requirements
Effective on a date to be proclaimed by the Lieutenant Governor, every employer who advertises a “publicly advertised job posting” will be required to include information about the expected compensation, or the range of expected compensation, for the position. The term “publicly advertised job posting” will be defined in the regulations, which have not yet been released. Exceptions to what constitutes a “publicly advertised job posting”, as well as conditions, limitations, restrictions, or requirements in respect a “range of compensation” may also be prescribed. Finally, employers will be required to retain (or arrange for the retention of) copies of every publicly advertised job posting and any associated application form for three (3) years after access to the posting by the general public is removed.
Job Postings: Disclosing AI Use
Effective on a date to be proclaimed by the Lieutenant Governor, employers will be required to disclose the use of AI during the hiring process. Specifically, the ESA now provides that “every employer who advertises a publicly advertised job posting, and who uses [AI] to screen, assess, or select applicants for the position, shall include in the posting a statement disclosing the use of the [AI].” This new section will not apply to any publicly advertised job posting that meets criteria as may be prescribed through future regulations.
Vacation Pay and Agreement re: Method of Payment
The default rule under the ESA is that vacation pay is to be paid to the employee in a lump sum before the employee commences vacation. Effective June 21, 2024, an employee may agree to the payment of vacation pay in accordance with a different arrangement, provided the arrangement is set out in an agreement that the employee has made with the employer such as an offer letter or employment agreement.
Wage Protection Rules
Effective immediately:
- Unpaid trial shifts are banned under the ESA;
- Employers are prohibited from deducting from wages in the event a customer of a restaurant, gas station, or other establishment leaves without paying for their goods or services.
The following changes will also become effective June 21, 2024:
- Tips and other gratuities shall be subject to certain prescribed methods of payment; and
- Employers with a policy in place with respect to the employer, or a director or a shareholder, sharing in tips or other gratuities must post this policy in at least one conspicuous place in the employer’s establishment where it is likely to come to the attention of employees. This policy must be retained for three (3) years after ceasing to be in effect.
Next Steps
We will continue to monitor for the release of regulations to Bill 149 as these may include additional specifications in relation to the job posting, pay transparency, and AI requirements. We will also provide notice on this blog as to the date the job posting, pay transparency, and AI requirements are proclaimed in effect.
[View source.]
