Employers' Guide to Ontario’s Working for Workers Four Act, 2023

On November 14, 2023, the Ontario government introduced employment legislation, Bill 149, the Working for Workers Four Act, 2023 (the Bill) with the purpose of strengthening Ontario employee entitlements and workers’ compensation benefits. If this Bill receives royal assent in 2024, it will bring changes to the Digital Platform Workers’ Rights Act, 2022 (DPWRA), the Employment Standards Act, 2000 (ESA), the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (FARPCTA), and the Workplace Safety and Insurance Act, 1997 (WSIA).

Once the Bill passes, employers will have to update their businesses to reflect the legislative changes and ensure their workplaces stay compliant with the new guidelines. This include updating the minimum employment standards requirements and workers’ benefits under the Workplace Safety Insurance Board (WSIB), such as leave pay, entitlements, and recruitment practices.

Proposed amendments to the Ontario ESA

What will be the new requirements for employers in the hospitality industry?

Payment for trial shifts and trial work

Bill 149 strengthens employment protections for hospitality employees. Under the Bill, employers must pay workers for trial shifts, work performed during a trial period, and training.

Pay deductions due to customer theft

Employers are prohibited from deducting employees’ wages to cover loss caused by customer theft. Although this is already prohibited, the Bill further reinforces the ban by clarifying that the theft includes goods or services taken from, consumed at, or received without paying at a restaurant, gas station, or other establishments.

Gratuities and tips

Employers must now pay employee tips and gratuities only through cash, a cheque payable to the employee, direct deposit, or any other prescribed payment method. If tips are deposited directly into an employee's financial account, the account must be chosen by the employee and in their name. Employers sharing tips with their fellow employers, directors, or shareholders must post their tip-sharing or pooling policy conspicuously in the workplace. These changes are designed to enhance transparency and fairness in the distribution of employee tips.

What are the changes introduced to recruitment practices in Ontario?

The Bill aims to improve workers' decision-making in the job market by introducing pay transparency initiatives to job posting practices. Employers who publicly advertise job postings must follow these new requirements:

• Include expected range of wages or salary for the advertised position.
• If an employer uses artificial intelligence (AI) to screen, assess, or select applicant for a position, they are to disclose its use in the posting.
• Employers are prohibited from including a Canadian experience requirement in publicly advertised job postings.

Currently, the Bill lacks definitions for "publicly advertised job posting" and "artificial intelligence”, but these may be updated in the future. The proposed ESA amendments also require employers to keep copies of all publicly advertised job postings for three years after they’ve been removed from public access.

Vacation pay

For alternative vacation pay arrangements, employers and employees must have an agreement in place that specifies the terms.

Under the current ESA rule, vacation pays are to be paid:

• In a lump sum before the employee starts their vacation time;
• on the pay day during or before the pay period in which the vacation falls (if the employee doesn’t take vacation in complete weeks or if the employer pays the employee through direct deposit).

Proposed amendments to the WSIA

What is ‘super indexing’ under WSIB?

Bill 149 proposes amending the WSIA to include an "additional indexation factor" for worker occupational injury/illness benefits, allowing the benefit amount to rise beyond the annual inflation rate. Indexation is a process where the value of benefits is adjusted to account for inflation or other economic factors. "Super indexing" is an extra level of adjustment beyond standard indexation, potentially resulting in higher benefit amounts to account for more than just inflation, which may have implications for employers' costs.

While this gives injured/ill workers increased payouts, it may result in higher experience ratings for employers under the WSIB rating system, forcing them to pay higher premiums. To avoid costly payouts, employers should implement robust Occupational Health and Safety policies to minimize and prevent workplace injuries/illnesses.

New benefits for firefighters and fire investigators

Esophageal cancer contracted by firefighters with at least 15 years of service, including full-time, part-time, fire investigators or volunteer firefighters, would now be presumed as an occupational disease. The Bill clarifies this presumption applies to diseases diagnosed on or after January 1, 1960.

Proposed amendments to Digital Platform Workers’ Rights Act, 2022

While the DPWRA is not yet in force, the regulation-making authority, or those authorized to make regulations, will have greater powers to create regulations for "digital platform workers" (e.g., those in ride-sharing, delivery, courier services … etc.). The Bill allows the government to regulate factors such as the maximum length of recurring pay periods, the delay between the end of a pay period and payday, and the minimum wage rules applicable to digital platform workers.

Proposed amendments to Fair Access to Regulated Professions and Compulsory Trades Act

How should regulated professions assess an applicant’s qualifications?

Additional proposed changes to the FARPCTA stipulate that "prescribed requirements" must be met to determine if a regulated profession has transparently, objectively, impartially, and fairly assessed an applicant’s qualifications. The same criteria apply if a regulated profession has contracted a third-party provider for such assessments.

Other relevant government announcements outside of Bill 149

Are Non-Disclosure Agreements allowed in the settlement of a workplace sexual harassment case?

The Government of Ontario is hoping to restrict the scope and application of non-disclosure agreements (NDAs) in settling workplace harassment, misconduct, or violence cases. The decision to limit the use of NDAs and prevent its misuse in such cases comes on the heel of Bill 26, which came into effect on July 1, 2023. Under that bill, post-secondary institutions are prohibited from using an agreement to prevent the disclosure of any allegation or complaints about an employee’s sexual misconducts toward a student.

Job-protected leave for critical illnesses

The Ontario Government is considering legislative options for a new job-protected leave for critical illnesses, specifically cancer. This leave will be similar to the one mandated by the Federal Employment Standards, which provides a 26-week employment insurance sickness benefit.

Key takeaways for employers

For employers in the hospitality industry

Here are the proposed new requirements for employers in the hospitality industry under the Bill:

• Recruitment practices: Employers in the hospitality sector must align their recruitment practices with the ESA. Specifically, individuals working trial shifts are now entitled to compensation for the work performed.
• Wage deductions: Employers can’t deduct wages from employees for issues such as customer theft or instances of no pay.
• Tip pooling and gratuity policies: Employers should review their tip or gratuity distribution schemes and update them to ensure compliance with the upcoming legislative changes, including meeting workplace posting requirements.

For employers in Ontario

These new requirements are proposed for Ontario employers under Bill 149 :

• Recruitment and hiring processes: Employers are required to include expected salary range or wages for the advertised position.
• Disclosure of AI screening: Employers using AI to screen applications must disclose it in the job posting.
• Canadian Experience: Employers can’t include a Canadian Experience requirement in publicly advertised job postings.

Do you need help staying compliant with the Working for Workers Four Act, 2023?

Our HR experts can support your business by ensuring all existing policies, procedures, and documentation are aligned with the current legislative changes. See why 6500+ employers across Canada depend on Peninsula for sound HR advice, health and safety risk assessments, and resolving workplace misconducts. Call 1 (833) 247-3652 today to find out more.