Canada: Ontario Passes Working For Workers Four Act, 2023, Placing New Obligations And Prohibitions On Employers

With the Act now receiving Royal Assent, we detail the amendments impacting employers:

1. New obligations placed on employers

The Act establishes several amendments to the Employment Standards Act, 2000, which includes:

• Public job postings are required to disclose the compensation range of wages or salaries of the advertised position.
• Where an employer uses artificial intelligence in the hiring process, whether it be to "screen, assess or select applicants" for a position, it must include a disclosure statement in the job posting that artificial intelligence is being utilized in the hiring process.
• Employers are required to retain copies of all their publically available job postings for a minimum period of three years since the posting was removed.
• *Employers are prohibited from requiring Canadian experience in public job postings or an associated job application. However, this prohibition does not remove the mere consideration of Canadian experience.

These amendments placing new obligations on employers are not yet currently in force. These amendments will become law on a date set by the Lieutenant Governor.

*We note that although the proposed prohibition on requiring Canadian experience does not remove the consideration of such experience, employers must be reminded of the Ontario Human Rights Commission's policy regarding Canadian work experience. The Commission is of the view that requiring Canadian work experience is prima facie discrimination and, as such, employers must proceed with caution as to their obligations under the Ontario Human Rights Code.¹

2. New prohibitions placed on restaurant and service industry employers

• *Employers are prohibited from withholding or deducting an employee's wages resulting from common "dine and dash" and "gas and dash" scenarios, among other incidences concerning stolen goods or non-payment for services.
• If the employer has a policy in place with respect to the employer sharing in tips or other gratuities, the employer must keep a posted copy of the policy in at least one conspicuous place in the employer's workplace.
• Employers are required to pay employee tips or other gratuities only by cash, cheque payable only to the employee, or by direct deposit to an account chosen by the employee.
• Employers are prohibited from utilizing unpaid "trial shifts," which are common in the restaurant and hospitality industries. The definition of "employee" will expressly include "training" as work performed during a trial period.
• If an employer and employee wish to enter into an alternate pay arrangement regarding vacation pay, this alternate pay arrangement must be "set out in an agreement."

The amendments concerning tips and gratuities and alternate pay (vacation) arrangements will come into force on June 21, 2024. The other three amendments are now in force and therefore law in the province.

*As we highlighted in our previous bulletin, it remains unclear as to the true impact that the proposed changes to employee wage and salary deductions and withholdings will have. As it currently stands, section 13(1) of the Employment Standards Act, 2000² prohibits employers from deducting or withholding an employee's wages or causing the employee to return wages in certain scenarios:

3. Heightened monetary supports for injured workers

The Act has implemented amendments to the Workplace Safety and Insurance Act, 1997³, which include:

• Introducing an additional indexing factor to increase benefits above the annual rate of inflation available at the Workplace Safety and Insurance Board.
• Lowering the duration of employment needed to receive "presumed compensation" prior to certain diagnoses.

These amendments are not yet currently in force. These amendments will become law on a date set by the Lieutenant Governor.

The Act has also introduced minor amendments to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 and the Digital Platform Workers' Rights Act, 2022.

It is important to note that just because an Act receives Royal Assent, not every amendment becomes law on such date.

Footnotes

1. R.S.O. 1990, c. H. 19.

2. S.O. 2000, c. 41, section 13(1).

3. S.O. 1997, c. 16, Sched. A.