Ontario Bills Address Pay Transparency, Nondisclosure Agreements, Work History, and Hospitality Worker Training Pay

Quick Hits

• Ontario legislation would require expected pay ranges in job postings.
• The Ontario government is considering legislative options to restrict the use of NDAs in the settlement of cases of workplace sexual harassment, misconduct, or violence.
• Legislation is expected that would ban requiring Canadian work experience in job postings and applications.
• Legislation has been introduced that would ban unpaid training shifts for restaurant and hospitality industry workers.

Pay Transparency in Ontario

Pay transparency legislation, which is already operational in other provinces, may be coming to Ontario.

On November 6, 2023, the Ontario government shared expected amendments to the Working for Workers Act that would include the requirement to include expected pay ranges in job postings. This legislation is still in its consultation period so, beyond the purpose and background, few specifics are available for review. Minister of Labour, Immigration, Training and Skills Development David Piccini shared that “it is only fair [that companies] communicate transparently about how they pay workers.”

While the government did not share further details, recent British Columbia legislation may offer guidance. Passed on May 11, 2023, British Columbia’s new pay transparency legislation requires posting expected pay ranges in job postings. The government of British Columbia published guidance on what could be posted including examples, such as $20 per hour, $20-$30 per hour, $40,000 per year, and $40,000-$60,000 per year.

The British Columbia guidance further clarified that job postings that state, “$20 per hour and up” or “up to $30 per hour” do not meet the requirement. The Ontario government has not yet published guidance on the scope of range.

The new legislation may also include a requirement that employers inform candidates, via their job postings, regarding whether they use artificial intelligence in the hiring process.

Employers may recall that pay transparency seemed to be on its way to Ontario in 2018, but a pay transparency law never went into effect because of a change in the governing party.

Ban on Non-Disclosure Agreements

Minister Piccini also shared that the government of Ontario is considering legislative options to restrict the use of non-disclosure agreements (NDAs) in the settlement of cases of workplace sexual harassment, misconduct, or violence. The minister stated that the purpose of these consultations is to explore ending “a practice that allows businesses to shelter the behaviour of some of the worst members of our communities.”

The Canadian Bar Association indicated its support for this move in February 2023.

Ontario has banned NDAs in situations of sexual misconduct among post-secondary employees since December 8, 2022.

Many companies have used NDAs as consideration benefiting companies that would like to avoid publicity regarding certain allegations while also offering victims the opportunity to access a swift end to an otherwise onerous public process that could involve victims being required to take the stand, share private information, or otherwise potentially be retraumatized. Critics of this restriction on the use of NDAs have argued that this could lead to victims of sexual misconduct being forced to endure lengthy litigation processes in order to receive any compensation for the impacts of the misconduct.

Other critics note that bans on NDAs would be more effective in a jurisdiction where victims may be awarded larger sums of money through the court process (such as several states in the United States that have carried out such bans) to ensure that there is adequate incentive for the victim to endure the court process and be appropriately compensated.

Ban on Asking for Canadian Work Experience

On November 9, 2023, the Ontario government announced plans to introduce legislation that would ban employers from stating in job postings and applications that open positions require the candidates to have Canadian work experience. Ontario would be the first province to implement this significant requirement. If passed, the changes would go into effect as early as December 2023.

Prior to this step, the province had already required several nonhealthcare-related trade occupations to remove requirements for Canadian work experience. Professional Engineers Ontario was the first regulated profession to remove Canadian experience as a requirement for registration. Minister Piccini noted that banning a Canadian work experience requirement would be useful in tackling the labour shortage and noted that “Ontario welcomes more immigrants than any other province each year.”

Critics note that this move does not prevent discrimination based on job experience outside of Canada but that, rather, the discriminatory filtering of applicants can simply occur one step further along in the process.

No Unpaid Training Shifts for Restaurant and Hospitality Industry Workers

The Ontario government also recently announced that unpaid trial shifts and deductions on wages for customer theft may be banned in the restaurant and hospitality industry under an amendment to the Working for Workers Act.

Trial shifts are common in the service industry, and this legislation would clarify that all such shifts need to be paid. Currently, the Ontario government has not provided any information regarding pay rates for trial shifts or any need to pay workers for trial shifts at a rate that is consistent with the job’s ordinary wage.

A news release from the Ontario government stated that while deductions for customers’ actions are generally prohibited, they are nevertheless a common practice in the industry. One of the purposes of this legislation would therefore be to highlight that wage deductions for customer actions are unlawful.

The Ontario government further proposed a change for the restaurant and hospitality industry requiring employers to post tip-sharing policies in the workplace.

Ogletree Deakins’ Toronto office will continue to monitor developments and will publish updates on the Cross-Border blog as additional information becomes available.

Stephen Shore is a partner in the Toronto office of Ogletree Deakins.

Kshemani Constantinescu is a 2023 graduate of University of Western Ontario, Faculty of Law, and she is an articling student in the Toronto office of Ogletree Deakins.

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