Ontario Workplace Legislation: Further Amended ESA Rules in Effect and to Come–Further Sequel (s)
The Ontario provincial government has continued with its series of amendments to workplace statues, all of which means that employer compliance efforts need to be reviewed.
On March 21, 2024, Ontario’s Bill 149, the Working for Workers Four Act, 2023 received Royal Assent. Bill 149 amends a number of Ontario statutes, including the Employment Standards Act, 2000 (ESA), the Workplace Safety and Insurance Act, 1997 (WSIA), the Digital Platform Workers’ Rights Act, 2022 (DPWRA), and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (FARPCTA). The following is a summary of some of the key ESA amendments as a result of Bill 149.
ESA Amendments
The following changes to the ESA are now in effect:
“Trial period” equals employment: The definition of “employee” under the ESA has been expanded to include those who perform working during a “trial period”. Any such period is considered to be “training”, which means that any person performing work during any such trial period is deemed to be an employee for ESA purposes.
“Dine and dash”/non payment/theft rule: There is now express wording in the ESA which prohibits employers from making wage deductions on account of cash shortages arising from short payments from customers of restaurants, gas stations or other establishments.
The following changes to the ESA will take effect on June 21, 2024:
Employer payment of tips: All employers will be required to pay any tip or gratuity owing to employees by cash, cheque payable to the employee (and not anyone else) or direct deposit. This aligns the approach to tips with the ESA rules applicable more generally to the payment of wages.
“Tip pools” require posted rules: If the employer has a tip policy or rule where employers, directors or shareholders are to share in a so-called “tip pool”, then any such policy must be reduced to writing, posted in the workplace, and retained for three years after it ceases to be effective. This change is intended to incorporate transparency into the sharing of tips.
Vacation arrangements: The ESA provisions regarding vacation pay and so-called “alternate pay arrangements”, which involve how and when vacation pay will be paid, must be in writing.
The following changes to the ESA are not currently in force, and will take effect in the future upon proclamation:
Expected Compensation: In all publicly-available job postings, the employer must include information about the expected compensation for the position, or a range of expected compensation.
Bar on “Canadian Experience Required”: For all job application forms and related publicly-available job postings, employers will be prohibited from including any requirements related to Canadian experience.
AI-related Disclosure: Employers will be required to disclose in all public-available job postings whether or not they use artificial intelligence systems to screen, assess or select applicants.
Retention of Job Postings and Application Forms: There will be a requirement that employers retain copies of every publicly-advertised job posting and associated applicable forms for a period of three years following the date when public access to the posting has been removed.
All of these changes reinforce the importance of regularly reviewing the documents and processes which employers follow.