Bill 149, also known as the Working for Workers Four Act, 2023, was introduced by the Ontario government in November 2023 and received Royal Assent on March 21, 2024. Bill 149 amends various pieces of workplace legislation, but some particularly notable changes to the Employment Standards Act, 2000 for employers include new requirements regarding publicly advertised job postings and changes aimed at the restaurant and hospitality industries. Although some of Bill 149’s changes are already in effect, others will only come into force at a later date, as further detailed below.
Amendments to the Employment Standards Act, 2000 (“ESA”)
Publicly Advertised Job Postings
Bill 149 introduces new requirements under the ESA for employers – including prospective employers – who use publicly advertised job postings. It is expected that “publicly advertised job postings” will be defined by regulation.
Subject to any exceptions that may eventually be prescribed by regulation, employers who use such job postings will be required to include the following in the postings:
- Information about the expected compensation for the position or the range of expected compensation for the position; and
- If the employer uses artificial intelligence (“AI”) to screen, assess, or select applicants for the position, a statement disclosing the use of the AI.
It is expected that “AI” will also be defined by regulation, as will any conditions, limitations, restrictions or requirements related to a “range of expected compensation”.
Additionally, Bill 149 prohibits employers from including any requirement related to Canadian experience in a publicly advertised job posting or in any associated application form. Again, this will be so unless the publicly advertised job posting is subject to an exception that may be prescribed by regulation at a later date.
Employers will be required to retain copies of every publicly advertised job posting and any associated application form for three years after removing access to the posting by the general public.
Notably, these changes will come into force on a future date to be proclaimed. Nevertheless, employers should begin taking steps to prepare for them now.
Trial Shifts, Cash Shortages/Lost Property and Tips
The Ontario government indicated that some of Bill 149’s changes to the ESA were made specifically with restaurant and hospitality employees in mind, though it is important to note that they do not in fact apply solely to such employees.
The ESA’s definition of an employee currently includes “a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees.” Bill 149 stipulates that “training” will include “work performed during a trial period,” which is intended to ban unpaid trial shifts.
Bill 149 also stipulates that an employer cannot withhold, deduct, or require an employee to return wages if a customer of a restaurant, gas station, or other establishment leaves without paying for the applicable goods or services (e.g., “dine-and-dash” or “gas-and-dash” scenarios).
Finally, Bill 149 also makes several changes to the ESA with respect to tips. More specifically, Bill 149 requires that tips or other gratuities be paid by cash, cheque payable only to the employee, direct deposit (when stipulated requirements are met, as discussed further below), or any other method of payment prescribed by regulation. Payments by cash or cheque will be required to be made to the employee at the workplace or another place agreeable to the employee. Furthermore, 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 will be required to post the policy in a conspicuous place in the establishment where it is likely to come to the attention of employees, and to retain a copy of the policy for three years after it ceases to be in effect.
While the changes regarding trial shifts and cash shortages/lost property have already taken effect as of March 21, 2024, the changes regarding tips will come into force on June 21, 2024.
Vacation Pay and Direct Deposits
Bill 149 also makes amendments to the ESA with respect to vacation pay and direct deposits.
The ESA currently states that an employer must pay vacation pay in a lump sum before an employee commences their vacation. However, it also allows the employer to pay an employee vacation pay accrued during a pay period on the pay day for that period if the employee agrees (when stipulated requirements are met). Bill 149 amends this wording to clarify that the employee must have “made an agreement with the employer” in writing to allow the payment of vacation pay accrued during a pay period on the pay day for that period.
The ESA also currently allows an employer to pay the employee vacation pay at a time agreed to by the employee. Bill 149 amends this wording to clarify that an “employer may pay the employee vacation pay at a time set out in an agreement that the employee has made with the employer.”
With respect to direct deposits, the ESA’s current requirements regarding the payment of wages will be amended so as to impose additional requirements related to the account into which the direct deposit is made. More specifically, while the account already has to be in the employee’s name, Bill 149 requires that it also be selected by the employee and that it meet the prescribed criteria, if any. Additionally, Bill 149 allows for the direct deposit of tips or gratuities if the employee’s account meets the same conditions as those that will be required for the payment of wages in this manner.
These changes will come into force on June 21, 2024.
Amendments to the Workplace Safety and Insurance Act, 1997 (“WSIA”)
Besides the aforementioned changes to the ESA, Bill 149 also amends the WSIA to provide that for a worker impaired by primary-site esophageal cancer, the cancer is presumed to be an occupational disease that occurs due to the nature of the worker’s employment as a firefighter or fire investigator if the worker was employed as a full-time firefighter, part-time firefighter or fire investigator or served as a volunteer firefighter for a total of at least 15 years before being diagnosed. The presumption applies only to a diagnosis of the disease on or after January 1, 1960.
Bill 149 also provides that additional indexing factors may be prescribed by regulation, and outlines how payments provided for or otherwise determined under the WSIA will be adjusted.
The amendments to the WSIA will come into force on a future date to be proclaimed.
Amendments to the Digital Platform Workers’ Rights Act, 2022 (“DPRWA”)
Bill 149 will also amend the DPRWA, which is not yet in force. Specifically, it will allow the following to be prescribed by regulation:
- Limits on recurring pay periods or pay days; and
- Rules for determining compliance with the DPWRA’s minimum wage requirements.
Amendments to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (“FARPCTA”)
Finally, Bill 149 amends the FARPCTA to provide that prescribed requirements must be met in order for a regulated profession to be considered to make assessments of qualifications in a way that is transparent, objective, impartial and fair. It also amends the FARPCTA to provide that, where a third party makes such assessments, prescribed requirements must similarly be met in order for a regulated profession to be considered to have taken reasonable steps to ensure that the assessments are made in the same way.
As with the changes to the WSIA, these amendments will come into force on a future date to be proclaimed.
In Our View
We will continue to monitor the coming into force of various provisions of Bill 149 and share important developments with Focus Alert readers, if and when they occur.
For more information, please contact Veronica Blanco Sanchez at (873) 288-8805 or Fabienne Lajoie at (613) 301-9612.
