For the second time this year, the Ontario Government has introduced proposed legislative amendments to several workplace laws under the so-called “Working for Workers Act”. This year’s second iteration – Working for Workers Four Act, 2023 (“Bill 149”, available here) was introduced on November 14, 2023. These proposed changes were announced as part of a larger package that expands on the employee protections provided by the Working for Workers Acts, 2021, 2022 and 2023.
Bill 149 would, if passed, introduce further proposed amendments to several workplace laws, which would, if passed, create further protections for workers in Ontario, as well as further obligations for employers, including:
1. New obligations and prohibitions on employers related to hiring
The proposed changes, if passed, would establish a new section of the Employment Standards Act, 2000 (“ESA”) setting out the following requirements and prohibitions related to publicly advertised job postings:
- Each job posting would be required to include the expected range of wages or salary for the position;
- Where the employer uses artificial intelligence to screen, assess or select applicants for a position, the employer would be required to include in the job posting a statement disclosing the use of artificial intelligence; and
- As an expansion of some of the amendments enacted under the Working for Workers Act, 2021 (discussed further here), employers would be prohibited from requiring Canadian experience in a publicly advertised job posting or an associated application form.
Additional proposed changes to the ESA would require employers to retain copies of all publicly advertised job postings for three years after access to the postings by the general public have been removed.
The definition of “publicly advertised job posting” would be expected to be defined in the regulations. “Artificial intelligence” would also be defined in the regulations, and could range from targeted job advertisements to resume screening tools to AI-powered video interviewing tools.
2. Enhanced wage protections for restaurant and service workers
The proposed changes, if passed, would provide enhanced wage protections for restaurant and service workers by:
- Banning unpaid trial shifts, which are common in the restaurant and service industries, by amending the definition of “employee” under the ESA to explicitly define “training” as including work performed during a trial period;
- Requiring employers to pay employee tips gratuities only by cash, cheque payable only to the employee, or by direct deposit;
- Mandating certain policy posting and retention requirements in workplaces where the employer has a policy in place with respect to the employer sharing in the pooling of tips or gratuities; and
- Prohibiting employers from withholding or deducting from an employee’s wages where a customer of a restaurant, gas station, or other establishment has left without paying (i.e. a “dine and dash” or a “gas and dash”).
It is unclear what practical impact some of these proposed changes will have, if passed, as the ESA already prohibits employers from withholding or deducting from an employee’s wages or causing the employee to return the wages where the employee’s wages were withheld, deducted or required to be returned because of an employer cash shortage or lost property where a person other than the employee had access to the cash or property.
3. Enhanced support for injured workers
Ontario is also proposing amendments to the Workplace Safety and Insurance Act, 1997 (“WSIA”), which include:
- Enabling “super indexing” increases to Workplace Safety and Insurance Board (“WSIB”) benefits above the annual rate of inflation to increase pay for injured workers; and
- Enhancing cancer coverage for firefighters by establishing presumptions in respect of certain cancers for firefighters and fire investigators.
Other changes proposed by the Ontario government include proposed changes to requirements prescribed under the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 that must be met to determine whether a regulated profession assesses qualifications in a manner that is objective, impartial and fair, as well as minor revisions to the Digital Platform Workers’ Rights Act, 2022.
These proposed changes are at the First Reading stage and have not been passed into law. We will continue to provide updates as details emerge regarding upcoming changes.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.