Special thanks to our articling student Madison Bruno for contributing to this update.
On November 14, the Ontario Government introduced Bill 149, Working for Workers Four Act, 2023. If passed as expected, Bill 149 would significantly change several employment statutes, building on the Working for Workers Acts, 2021, 2022, and 2023. Key changes include: new requirements for Ontario employers to disclose pay information in job postings; a new obligation to disclose whether artificial intelligence was used during the hiring process; and it would prohibit using Canadian work experience as a job requirement.
Summary of Significant Changes
Bill 149 would change the law to include the following requirements, among others:
- Pay Transparency: Employers will be required to include information about the expected compensation or the range of expected compensation for a position in their publicly advertised job postings.
- Use of AI in the Hiring Process: Employers will also be required to disclose in job postings whether they used AI in the hiring process (i.e., if AI was used to screen, assess or select applicants for the position).
- Prohibiting the Requirement of “Canadian experience”: Employers will be prohibited from including in job postings or any associated application form any requirements related to Canadian experience. This proposed amendment is aimed at eliminating discriminatory job requirements towards internationally-trained immigrants.
- Tips and Tip Policies: Employers with policies on tip-sharing will be required to post them in a conspicuous location at the workplace. The Bill also includes provisions regarding the payment methods that must be used by an employer to pay tips.
- Deductions: The law makes it more clear that employers are prohibited from making deductions from an employee’s wages where a customer of a restaurant, gas station or other establishment leaves the establishment without paying for the goods or services.
Bill 149 also proposes amendments to 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. Of significance, the Bill would allow the government to prescribe rules for determining compliance with minimum wage requirements and limitations on recurring pay periods and pay days under the DPWRA.
New Consultations
At the same time it introduced Bill 149, the Ontario government also announced that it would be launching consultations to:
- Restrict the use of Non-Disclosure Agreements in the settlement of cases of workplace sexual harassment, misconduct or violence. This follows the Minister of Labour, Immigration, Training and Skills Development’s press release earlier this month stating that the Ontario government was considering banning NDAs in such cases.
- Create a new, job-protected leave for critical illnesses (like cancer) to match the length of the 26-week federal Employment Insurance sickness benefits.
Takeaways for Employers
Bill 149 has received first reading and will continue to make its way through the legislative process. Employers should take note of the proposed amendments and review their practices to prepare for these changes. But it is probably too early to make any changes to job posting practices. We will continue to monitor for updates on the progress of Bill 149.
In addition, we will be watching for guidance with regard to these kinds of details:
- The type of “information” required to meet the legislative obligation to “provide information about expected compensation” (i.e., will Ontario take a similar approach to British Columbia?)
- The level of detail necessary to describe the use of AI in recruiting
- The effective date for the new posting requirements
- How the new Ontario rules interact and compare with rules in other provinces when an employer is recruiting for a Canada-wide position
- Whether there will be any carve-outs or exceptions
Global trend: The Bill’s proposed changes regarding the disclosure of pay information in job postings are part of a broader trend for greater pay transparency, both in Canada and abroad. Please consult our previous blog posts (here and here) for more information on this topic. For a quick and easy way to stay on top of pay transparency obligations globally, we also offer a fixed fee Global Pay Equity Compliance Compendium. Please contact a member of our team for more information on this resource.