UPDATE: On March 21, 2024, Ontario’s Bill 149 - Working for Workers Four Act, 2024 received Royal Assent. The amendments to the ESA made by Bill 149 came into force on the day it received Royal Assent, with the following exceptions:

• The amendments to the ESA that relate to publicly available job postings are not currently in force. They will take effect in the future on proclamation.
• The following amendments to the ESA come into force on June 21, 2024:
  
  • The amendments regarding the payment of employee tips or other gratuities;
  • The amendments made to the vacation pay provisions;
  • The clarifying amendment made to the direct deposit provisions to confirm that, if payment is made by direct deposit, in addition to being in the employee’s name and being accessible only to the employee or a person authorized by the employee, the account must be one selected by the employee.

Finally, the amendments to the WSIA and the DPWRA made by Bill 149 are not currently in force. They will take effect in the future on proclamation.

​*  *  *

On November 14, 2023, Ontario introduced Bill 149, Working for Workers Four Act, 2023 (Bill 149), for First Reading. If passed, Bill 149 would, among other things, amend the Employment Standards Act, 2000 (ESA), the Workplace Safety and Insurance Act, 1997 (WSIA) and the Digital Platform Workers’ Rights Act, 2022 (DPWRA).

Bill 149 Amendments to ESA

Definition of “employee” and work performed during “trial period”

Currently, the ESA’s definition of “employee” includes a person who receives training from an employer, if the skill in which they are being trained is a skill used by the employer’s employees.  Bill 149 would amend the ESA definition of “employee” to indicate that work performed during a trial period would be included within the meaning of “training.”  

Requirements and prohibitions related to content of publicly advertised job postings

Bill 149 would add a new Part III.1 to the ESA that would set out the following requirements and prohibitions related to the content of publicly advertised job postings:

• Requirement: Expected compensation for the position or the range of expected compensation must be included in publicly advertised job postings, subject to exceptions to be prescribed.
• Prohibition: Canadian experience may not be included in publicly advertised job postings or associated application forms, subject to exceptions to be prescribed.
• Requirement: A statement disclosing the use of artificial intelligence to screen, assess or select applicants for the position must be included in publicly advertised job postings, subject to exceptions to be prescribed. 

Payment of wages by direct deposit

Bill 149 would amend the requirements regarding the payment of wages by direct deposit to provide that accounts for direct deposit would need to be selected by the employee. Additional criteria might be prescribed.

Deduction of employee wages 

Bill 149 would clarify that employers would be prohibited from deducting 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. 

Paying employee’s tips or other gratuities

Bill 149 would add a new provision to the ESA that provides that an employer must pay an employee’s tips or other gratuities by cash, cheque payable only to the employee, or direct deposit into an account of a financial institution. 

If payment is made by cash or cheque, the employer would be required to ensure that the cash or cheque is given to the employee at their workplace or at some other place agreeable to the employee. 

If tips or gratuities are paid by the employer by direct deposit, the account would be selected by the employee and be in the employee’s name; no person other than the employee or a person authorized by the employee could have access to the account; and the account would need to meet the prescribed criteria, if any. 

Finally, 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 that are to be redistributed, the employer would be required to post and keep posted a copy of the policy in at least one conspicuous place in the employer’s establishment where it would be likely to come to the attention of the employer’s employees.

Records retention

Bill 149 proposes to require employers to retain or arrange for some other person to retain:

• every publicly advertised job posting and any associated application form for three years after access to the posting by the general public is removed; and
• 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.

Vacation pay and “alternate arrangements”

The ESA currently provides that an employer must pay an employee their vacation pay in a lump sum before the employee begins their vacation; however, employers and employees may agree to an alternate pay arrangement. Bill 149 would amend the ESA to clarify that alternate pay arrangements must be “set out in an agreement” made by the employee with the employer. 

Bill 149 amendments to WSIA

Diseases presumed to be occupational diseases

Bill 149 would add primary-site esophageal cancer to the diseases that are presumed to be occupational diseases that occur due to the nature of a worker’s employment as a firefighter or fire investigator, on the conditions that:

• 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; and
• the disease was diagnosed on or after January 1, 1960.

Indexing

Bill 149 would add a new section to the WSIA, which would enable “super indexing” increases to Workplace Safety and Insurance Board benefits. Bill 149 would allow regulations to be made to index increases above the annual inflation rate. 

Amendments to DPWRA

The DPWRA would be amended to provide that the following could be prescribed by regulation:

• certain limits on recurring pay periods and pay days; and
• rules for determining compliance with the minimum wage requirements of the DPWRA.

Commencement Information

Bill 149 would come into force on the day it receives Royal Assent, except for certain ESA amendments that would come into force three months after Royal Assent, or when proclaimed.

Consultations

Finally, in its announcement of Bill 149’s introduction, Ontario stated it will be launching consultations to:

• restrict the use of Non-Disclosure Agreements in the settlement of cases of workplace sexual harassment, misconduct or violence.
• create a new, job-protected leave for critical illnesses (like cancer) to match the length of the 26-week federal Employment Insurance sickness benefits.

We will be monitoring Bill 149’s legislative progress.