Ontario proposes further legislative changes impacting employers

On November 14, 2023, the Ontario government proposed further legislative changes as part of its "Working for Workers" legislation package.

Bill 149, entitled Working for Workers Four Act, 2023, if enacted, will bring about significant changes to Ontario's Employment Standards Act, 2000, among other statutes, particularly impacting employers in the restaurant and hospitality industries.

We have detailed the proposed changes below.

1. New obligations placed on employers

• Public job postings would be required to disclose the compensation range of wages or salaries of the advertised position.
• If the 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.
• 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 will be 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.

2. New prohibitions placed on employers

• Employers will be 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.
• Employers will be 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.
• Employers will be 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."

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, 2000^[1] prohibits employers from deducting or withholding an employee's wages or causing the employee to return wages in certain scenarios:

Deductions, etc.

13 (1) An employer shall not withhold wages payable to an employee, make a deduction from an employee's wages or cause the employee to return his or her wages to the employer unless authorized to do so under this section.

Further, even though 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.^[2]

3. Heightened monetary supports for injured workers

Proposed changes to the Workplace Safety and Insurance Act, 1997^[3] 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.

Please also see our previous posting on further proposed legislative changes impacting Ontario employers.

The proposed legislative changes have passed the Second Reading Stage but have not been assented into law. Gowling WLG's Employment, Labour & Equalities Group will continue to monitor these developments closely. In the meantime, please contact any members of the Employment, Labour & Equalities Group.