Ontario’s Working for Workers Four Act receives royal assent

On March 21, Ontario’s Bill 149, Working for Workers Four Act, 2024 received royal assent. As with previous “Working for Workers” legislation, Bill 149 amends several workplace law statutes in an omnibus format. The statutes amended by Bill 149 are:

• Employment Standards Act, 2000 (the ESA)
• Digital Platform Workers’ Rights Act, 2022
• Fair Access to Regulated Professions and Compulsory Trades Act, 2006
• Workplace Safety and Insurance Act, 1997

Relative to omnibus workplace legislation in recent years, the changes made to these statutes are relatively minor. Many of the changes simply expand the government’s regulation-making authority without introducing any new rules at present.

New ESA rules

The changes to the ESA are noteworthy in that they have broad application to employers in the province:

• Trial Periods. Effective March 21, 2024, the definition of “employee” in the ESA is revised to expressly include individuals completing a “trial period” for an employer. Absent an exemption, employees on trial periods will be subject to minimum standards under the ESA, including minimum wage, overtime and hours of work rules.
• Wage Deductions for Customer Theft. Effective March 21, 2024, wage deduction rules are clarified to expressly prohibit deductions from employee wages where a customer leaves an establishment without paying for goods or services. For example, a restaurant employer would be expressly prohibited from deducting the wages of a server when a customer “dines and dashes.”
• Tips. Effective June 21, 2024, payment methods for tips and other gratuities will be subject to express rules. Additionally, employers who pool/share employee tips with the employer (or a director or shareholder of the employer) will be required to post their tip sharing/pooling policies in the workplace. A copy of the policy must be retained for three years after the policy ceases to be in effect.
• Vacation pay. Effective June 21, 2024, the ESA’s vacation pay provision will be amended to clarify that a written agreement with an employee is required to pay that employee’s vacation pay on regular pay days, or at some time other than at the time of the employee’s vacation.
• Job Postings. Effective on a date to be determined by the government, publicly advertised job postings will be subject to new requirements:
  • They must include expected compensation for the advertised position or the range of expected compensation for the position. 
  • They must disclose whether the employer uses artificial intelligence (AI) to screen, assess or select applicants for the position.
  • They must not include any job requirements related to Canadian experience. This prohibition on Canadian experience job requirements also applies to job application forms.

Employers will also be required to retain copies of their publicly advertised job postings for three years after access to the posting by the general public is removed.
The three new job posting requirements will be subject to rules to be prescribed by regulation. They are unlikely to come into force until those regulations are developed.

The new job postings requirements

The new rules applicable to job postings are by far the most impactful changes to the ESA, though their in-force date is uncertain. While the precise scope of these new rules remains to be determined by regulation, it is likely Ontario employers will soon need to revisit their recruitment strategies and documentation for compensation disclosure, AI use and requirements for Canadian experience. This exercise may raise difficult questions, such as: 

• The level of detail of the compensation information to be disclosed, and how such disclosure will impact internal transparency over employee compensation. 
• Whether disclosing the use of AI during the recruitment process is just the first step toward increased scrutiny over the application of AI tools.
• How best to evaluate the experience of applicants with relevant experience outside Canada.
• Whether to adopt all of these Ontario job posting standards for Canada-wide job postings, or to take a regional approach to recruitment practices and documentation.

One question that may arise is whether the obligation to disclose compensation information might, inadvertently, run afoul of the new federal Competition Act prohibition on wage-fixing arrangements among employers. We wrote about this new prohibition in our update “No-poach, no problem: Competition Bureau releases enforcement guidelines for wage-fixing and no-poaching agreements.”

At present, such a risk seems remote. The prohibition on wage-fixing applies to an agreement or arrangement between employers regarding wages or terms and conditions of employment. Simply posting compensation information is not an agreement or arrangement, particularly where doing so is required by law.