Proposed amendments to the Employment Standards Act, 2000 (ESA), if Bill 149, the Working for Workers Four Act, 2023, passes

Regulation Number(s):
Instrument Type:
Bill or Act:
Employment Standards Act, 2000 (ESA)
Summary of Proposal:
MLITSD is proposing various changes to the ESA related to protecting employee's wages and tips, adding rules about job postings and clarifying current requirements.

The proposed amendments would, if passed:
• Make clear that employers cannot deduct employee wages to cover the cost of any stolen goods or services by customers, including cost of meals, gas, and other services.
• Make clear that employees must be paid for trial periods by expanding the meaning of "training" for the purposes of the definition of "employee" to explicitly include trial periods.
• Require employers to post a copy of any policy they have on employer/director/shareholder sharing in the redistribution of pooled tips in at least one conspicuous place in the employer's establishment.
• Provide that tips or other gratuities must be paid by either cash, cheque or direct deposit. Provide that where an employer pays an employee wages and/or tips by direct deposit, that the employee selects the account that the wages will be deposited into.
• Support the removal of a barrier to employment for newcomers/recent immigrants by prohibiting employers from requiring prior Canadian experience as a pre-screening mechanism in job postings and associated application forms, subject to any prescribed exceptions.
• Require employers to disclose in job postings the use of artificial intelligence (AI) during pre-employment recruitment such as during candidate screening and interviews, subject to any prescribed exceptions, and define "artificial intelligence" in regulation.
• Provide jobseekers with better information on salaries by requiring employers to post a compensation rate or range with every job posting, subject to any prescribed exceptions and conditions.
• Make sure that employees are aware of how vacation pay is paid when it is paid by a method other than lump sum. Clarify that other methods are allowable if an employee has made an agreement (in writing) with the employer.
• To support implementation of the proposed provisions, require employers to keep certain records related to having a policy on employer/director/shareholder sharing in the redistribution of pooled tips and related to job postings.

The proposed amendments would either clarify pre-existing provisions in the ESA or legislate new areas to support Ontario workers and businesses and increase economic competitiveness.

In addition to these ESA proposals, additional amendments:
• Create LGIC regulation-making power to prescribe additional indexation increases to Workplace Safety and Insurance Board (WSIB) benefits.
• Create a statutory presumptive entitlement for primary-site esophageal cancer for firefighters and fire investigators who have been employed as such for at least 15 years (down from current regulatory 25-year requirement).
• Amend the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 to provide regulation-making authority to introduce duties and requirements for regulated professions and their use of third parties for assessment.
• Amend the Digital Platform Workers' Rights Act, 2022 to provide regulation-making authority related to minimum wage requirements.
Analysis of Regulatory Impact:
1. Proposed amendments to clarify certain provisions under the ESA

Wage protection for "dining and dashing", making clear that employees must be paid for trial periods, and clarifying employee agreement for vacation pay would provide greater certainty about existing rules to provide greater transparency in the employee-employer relationship and enhance employee protection.

If the proposed amendments are passed there would be no direct compliance costs or administrative costs associated with the proposal.

2. Proposed amendments re: disclosure of tipping out policies and payment of wages/tips

These proposed amendments would empower employee knowledge and awareness regarding tip distribution and employee choice to select the account in which their wages and tips would be deposited.

There could be minimal costs associated with maintaining tip payment methods in compliance with the new rules and the employees' account selection.

3. Proposed amendments for fairer treatment in the hiring process

Proposed amendments regarding job postings would generally encourage more equitable hiring and employment practices. These include disclosing the use of AI models and salary ranges for positions and prohibiting the requirement of Canadian experience in job postings and affiliated application forms.

There could be minimal costs to employers related to learning, implementation and record keeping.
Further Information:
Proposal Number:
Posting Date:
January 9, 2024
Comments Due Date:
February 7, 2024
Contact Address:
Employment, Labour, and Corporate Policy Branch
Ministry of Labour, Training and Skills Development
400 University Avenue, 15th Floor
Toronto ON M7A 1T7