On March 21, 2024, Ontario’s Bill 149, the Working for Workers Four Act, 2023,received Royal Assent, thereby amending the Employment Standards Act, 2000 (the ESA) and several other employment-related statutes in Ontario. The passing of Bill 149 introduces a number of new obligations on Ontario employers, including requirements for job postings, vacation pay and more.
Requirements for publicly advertised job postings
As of a future date that is to be prescribed by regulation, all employers are required to abide by the following as it concerns their publicly advertised job postings. The criteria for what constitutes a “publicly advertised job posting” will be prescribed by regulation.
- Employers must include information about the expected compensation, or range of expected compensation, for the job position.
- Employers are prohibited from: (i) including requirements that job applicants have prior Canadian work experience; and (ii) including Canadian work experience requirements in any associated job application form.
- Employers must disclose whether they use artificial intelligence to screen, assess or select job applicants. The criteria for what constitutes “artificial intelligence” will be prescribed by regulation.
- Employers must retain copies of every publicly advertised job posting and associated application form for a period of three years after public access to the posting is removed. Employers will therefore want to take care to remove job postings once they are filled.
Vacation pay
Bill 149 also introduces clarifying amendments to the current vacation pay provisions of the ESA. These amendments confirm that effective June 21, 2024, a written agreement is required if an employer intends to pay vacation pay in any method which alternative to a lump sum prior to an employee’s vacation.
As was the case prior to the passing of Bill 149, the ESA provides that an employer is required to pay an employee their vacation pay as a lump sum prior to the employee commencing vacation. However, the ESA permits an employer to pay vacation pay at an alternative time, such as on each regular paycheque, or via salary continuance throughout the employee’s vacation, if and as agreed to by the employee.
Bill 149 now clarifies that any such agreements must be in writing. As such, absent an agreement to this effect in an employee’s employment agreement, employers may need to introduce separate stand-alone agreements if they wish to continue paying vacation pay during vacation or via some other alternative method.
Other legislative amendments
- Effective as of March 21, 2024, unpaid trial shifts are banned, as the definition of “employee” has been amended to confirm that work performed during a “trial period” is considered “training,” which constitutes work performed that must be paid.
- While the ESA already provided that employers are prohibited from making deductions from employees’ wages due to a cash shortage or loss of property, Bill 149 amends the ESA to make it clear that, effective as of March 21, 2024, this prohibition expressly includes situations where a customer leaves the employers’ establishment without paying for the goods or services sought or received.
- Effective as of June 21, 2024, where an employer has a “tip pool” or “tip sharing” policy, employers are required to put that policy in writing and post it in a conspicuous place in the workplace.
- Effective as of a future day to be proclaimed, Bill 149 will amend the Workplace Safety and Insurance Act, 1997 to provide thatfirefighters and fire investigators diagnosed with primary-site esophageal cancer will be presumptively entitled to benefits through the Workplace Safety and Insurance Board after 15 years of employment (a 10-year decrease from the previous threshold of 25 years of employment).
- Effective as of the date the minimum wage provisions of the Digital Platform Workers’ Rights Act, 2022 come into effect, Bill 149 will further amend that statute allow for limits to be imposed on the length of a recurring pay period, as well as for regulations to be enacted to prescribe rules to determine compliance with forthcoming minimum wage requirements.
- Effective as of a future day to be proclaimed, Bill 149 will amend the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 to allow the government to prescribe requirements that must be met to determine whether a regulated profession assesses qualifications in a way that is transparent, objective, impartial and fair.
Conclusion
While some of the amendments introduced through Bill 149 are already in force as of March 21st, employers have some time to prepare for other amendments which will be in force in the coming months and beyond. Our Dentons Canada Employment and Labour group will continue to monitor and provide updates on the impact of these legislative amendments. Should you have any questions about these changes, please contact the authors Maggie Sullivan, Stephanie Lewis and Catherine Coulter, or a member of our team.
