On November 14, 2023, the Ontario government introduced Bill 149, Working for Workers Four Act, 2023 ("Bill 149"), which proposes legislative amendments to several workplace laws. These proposed legislative changes are part of the package of expanded workplace obligations that began with the "Working for Workers Act"s of 2021, 2022, and 2023.

If passed, Bill 149 would introduce proposed amendments to several workplace laws, including the Employment Standards Act, 2000 (the "ESA") and Workplace Safety and Insurance Act, 1997 (the "WSIA"); it will establish new obligations for Ontario employers in respect of pay transparency, job postings, wage protection in the restaurant and hospitality sectors and enhancements to workers' compensation benefits.

What Employers Need to Know

1. New Pay Transparency Obligations

Bill 149 has proposed to mandate certain pay transparency requirements related to the content of publicly advertised job postings, including the requirement for employers and prospective employers to include the expected pay or range of pay for a job position. These new provisions would be added into the ESA.

This is not the Ontario government's first attempt to introduce pay transparency legislation. In 2018, the then-Liberal government introduced the Pay Transparency Act, 2018, ("2018 Act") which sought to require employers to include the expected pay or range of pay for publicly advertised job postings and would have prohibited employers from asking applicants about their pay history or retaliating against employees for disclosing information about their pay to other employees. However, the 2018 Act was never brought into force by the new Conservative government. Bill 149 does not go as far as the Pay Transparency Act, 2018 in that it does not prohibit employers from asking applicants about their pay history or retaliating against employees for disclosing information about their pay to other employees.

Ontario follows the growing trend of other Canadian jurisdictions that have already implemented various forms of pay transparency laws, including most recently in BC. Our bulletin from March 2023 provides more details on the pay transparency laws across the country.

2. New Obligations Concerning Job Postings

In addition to introducing pay transparency legislation, Bill 149 has also proposed several other requirements and prohibitions related to publicly advertised job postings. These include:

  • Prohibition Against Canadian Experience: Employers and prospective employers will be prohibited from including in a job posting – or in any associated application form – any requirements related to "Canadian experience."
  • Artificial Intelligence Disclosure: Employers and prospective employers who use artificial intelligence to screen, assess or select applicants for a job posting that is publicly advertised must include a statement in the job posting disclosing the use of artificial intelligence. "Artificial intelligence" will be defined in the regulations.
  • Retention Requirements: Employers and prospective employers must retain copies of every publicly advertised job position and any associated application form for three years after access to the posting by the general public has been removed.

3. Wage Protections for Restaurant and Hospitality Workers

On November 14, 2023, the Ontario government announced that it would be introducing "ground-breaking" protections for workers in the restaurant and hospitality industry. Bill 149 has proposed changes to the ESA to support this announcement, including:

  • Prohibiting Unpaid Trial Shifts: Bill 149 proposes an amendment to include work performed during a trial period within the meaning of training for the purposes of the definition of an "employee" under the ESA. The effect of this change includes prohibiting unpaid "trial shifts," which the Ontario government has said are common in the restaurant and hospitality industries, though arguably these protections are already captured by the more general provisions of the ESA.
  • Prohibiting Wage Deductions in the Event of Stolen Property: Employers will be prohibited from withholding or deducting 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 taken from, consumed at or received at the establishment, otherwise referred to as a "dine and dash" or "gas and dash." The Ontario government has said that these punitive deductions are common in the restaurant and hospitality industries.

    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. Therefore, it is unclear what impact the proposed changes will have, if passed.
  • New Requirements for Tip Pooling Policies: If an employer has a policy in place with respect to the employer or a director or shareholder of the employer sharing in tips or other gratuities, the employer must post a copy of the policy in at least one conspicuous place in the employer's establishment where it is likely to come to the attention of the employees. In addition, an employer must retain or arrange for some other person to retain copies of every written policy on sharing in tips or other gratuities that is required to be posted for three years after the policy ceases to be in effect.
  • New Requirements for the Payment of Tips: Employers will be required to pay employee tips or gratuities according to the following three prescribed methods: by cash, by cheque payable only to the employee, or by direct deposit. In addition, if the payment is made by cash or cheque, the employer must ensure that the cash or cheque is given to the employee at his or her workplace or at some other place agreeable to the employee.

4. Support for Injured Workers

Bill 149 has proposed changes to the WSIA concerning injured workers. These include as follows:

  • Enabling "Super Indexing": Bill 149 proposes enabling increases to the Workplace Safety and Insurance Board benefits above the annual rate of inflation. The impact of this change would include providing increased pay to injured workers.
  • Improved Cancer Coverage for Firefighters: Bill 149 proposes to improve cancer coverage for firefighters and fire investigators by lowering the duration of employment needed to receive presumed (automatic) compensation prior to diagnosis with esophageal cancer from 25 to 15 years.

While not included in Bill 149, the Ontario government has also announced that it will be launching consultations on a new, job-protected leave to match the length of federal Employment Insurance sickness benefits, which is 26 weeks. The government has said that this leave could ensure that employees who receive a diagnosis of cancer or other diseases will have the peace of mind that their job will be waiting for them while they seek treatment. The government has not yet announced how interested parties may participate in this consultation process.

Next Steps

Bill 149 was carried at First Reading on Tuesday November 14, 2023 and was ordered for a Second Reading on the same date.

The legal landscape for employers in Ontario is expansive and continues to grow. We will continue to monitor and report on legislative amendments as they arise.

If you have questions regarding these proposed changes or how the legislation will affect your workplace, please contact one of the authors or your usual Fasken lawyer.

For further information about the first three iterations of "Working for Workers" legislation, please see our previous posts on the Working for Workers Act 2021, 2022, and 2023.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.