Introduction
The Working for Workers Act Four, 2024, has been pitched as bringing significant changes to Ontario’s employment laws, aiming to curb employer abuses and bolster protections for workers. Schedule 2 allegedly introduces crucial updates to the Employment Standards Act, 2000 (ESA) that target what the government has identified as loopholes used by employers to circumvent its protections, such as trial period work, deceptive job posting and interview practices, and wage theft via ‘tipping policies.’ These changes have been touted as helping all employees in Ontario, with the specific goal of protecting those in precarious or service industry jobs, where fair treatment and transparency have long been lacking, and Ministry of Labour enforcement has fallen short. Unfortunately, many of these changes fall short of what is needed or how they have been described.
Key Changes in Schedule 2:
- Trial Period Work: Employers Can’t Use Loopholes Anymore – That They Couldn’t Use Before Anyway
Work performed during a trial period has always counted as employment under the ESA, but employers often skirted this, telling employees that it did not count as it was unpaid training. Now, Ontario law explicitly recognizes trial period work as real employment, shutting down loopholes that employers once used to exploit employees. With this amendment, any tasks done during a trial period are fully covered under ESA protections.
The problem with this change is that it is mere window dressing. As set out in the ESA and O. Reg. 285/01: WHEN WORK DEEMED TO BE PERFORMED, EXEMPTIONS AND SPECIAL RULES under the ESA, this issue was already extensively covered.
The problem came down to enforcement and worker protection, not the state of the law. The update does not increase the penalties or enforcement resources. Problematically, the term “trial period’ is not defined anywhere in the ESA. This is something that would be dealt with in a far more effective manner by increasing resources for employees. Adding an extra subsection to ESA, a highly complex document with numerous regulations, that does not materially change anything, does not aid an employee who struggles to understand the statute. It also does not help an employee who understands the ESA, as they would already know their rights.
The net result is that the same employers who flagrantly violated the ESA previously have no reason to stop, and employees in the hospitality and service industries will continue to be exploited.
- Transparent Job Postings: More Guesswork on Compensation
One of the most anticipated changes requires employers to disclose compensation in all publicly posted job ads, specifying either the exact pay or a clear range. This policy is designed to end the guessing game for job seekers and prevent bait-and-switch tactics. It is also designed to help reinforce the wage transparency requirements within workplaces that are supposed to stop employers from underpaying workers based on gender.
The lack of information about wages allowed employers to exploit uninformed applicants and suppress competition. By ensuring compensation transparency, the goal is to make it easier for workers to make informed choices about job opportunities.
Employers are now also required to keep records of job postings and application forms for three years. This added accountability protects employees and job seekers in case disputes arise, providing a record that can be referenced during any investigations.
The problem with these provisions is that what actually exists right now is a skeleton. All of the critical questions, such as ‘How large can the range of compensation listed be?’ or ‘When does an employer not have to pay the amount in the posting?’ are deferred to the regulations, which are still being drafted. Until those are finalized, this provision is likely to cause more confusion for both employers and employees, not less.
- Tipping Policies: Your Tips, Your Rights?
For workers in restaurants and hospitality, tipping policies are a big deal. Schedule 2 now requires employers to post any tip-sharing policies in a visible spot at the workplace, with the goal of giving employees full transparency about how tips are distributed. This rule has been pitched as helping prevent abuses such as employers or managers unlawfully deducting amounts of tips for themselves.
The problem is that the actual changes made by The Working for Workers Act Four, 2024 are extremely minimal. Since 2015, the ESA has prohibited employers and managers from stealing tips from employees. The current changes only cover how tips can be paid to employees and require employers to publicly post the tip pool policy and retain the document as part of their records.
Questions like “Can my employer take a share of my tips?” and “Can non-service employees get a portion of tips?” already had clear answers. The law for almost a decade has strictly regulated who can participate in tip-sharing, to ensure that tips rightfully go to the service workers who earned them. It is uncertain how forcing an employer to post a policy document in the employee break area of a busy restaurant would materially stop the abuse.
- AI in Hiring: Know When You’re Being Screwed by a Machine
In a growing number of workplaces, employers are using artificial intelligence (AI) to screen, assess, and select candidates. Schedule 2 now includes a barebones skeleton of law that requires employers to disclose in their job postings if AI tools are used in the hiring process.
Proper transparency would be crucial for applicants, as AI algorithms may determine who makes it past initial screenings. AI tools have been shown to have racial and gendered biases in their operations, either intentionally as part of the design to allow bad actors who want to breach the law to have plausible deniability or due to the material used to develop the tools. On top of this, all types of machine learning-based AI tools are highly vulnerable to ‘data poisoning’ by internal employees or external actors. The results of this can be anything from subtly shifting how a tool works to skew results to having your writing tool only produce erotica.
Knowing if an AI system is part of the selection process could help workers better understand how their applications might be assessed and encourage fairer, more accountable hiring practices. However, based on the existing use of assessment tools in other fields, this is optimistic.
The other problem with this section is that AI is extremely poorly defined. The spellcheckers that are built into modern software are AI tools that use machine learning. As written, running a candidate’s resume through spellcheck to see if there are any spelling or grammar errors would count as screening or assessing the applicant with AI tools.
What This Means for Ontario Workers
These amendments essentially change nothing for employers in industries like hospitality and retail, where unfair practices have been common. For employees, these changes are also largely meaningless, as they either already had these rights, but enforcement was and is lacking, or the changes are so minimal and vague that their effect will solely depend on the regulations.
The Working for Workers Act Four, 2024, has been touted as a step toward a more transparent, fair, and employee-centred workplace in Ontario. However, the stronger protections around trial work, job postings, tipping, and AI screenings, in the legislation that are said to arm workers with knowledge and safeguards against exploitation have so far failed to materialize.
This is a pattern consistent with the minimum entitlements under the ESA and the Ministry of Labour enforcement. It is the bare minimum. Contrary to what some employees believe, Ministry of Labour Officers are not legal professionals and do not represent your case. If you want to be able to enforce your rights, have someone who only has your interests in mind, and want to get more than the bare minimum, you need a lawyer.
The lawyers at De Bousquet PC truly believe that we should have safer, fairer workplaces with transparent hiring and compensation practices. Employers should not be able to undermine employee rights by relying on complex legal jargon. We pride ourselves on working with you, not talking down to you, on your employment matters, including answering questions and making sure you understand each step of your case. Contact us today.
Not Legal Advice: This article is for informational purposes only. For specific legal concerns, consult our law firm to speak with an employment lawyer.