Bill 149 Receives Royal Assent – New ESA Requirements for Vacation Pay, Deductions and Job Postings

March 26, 2024

Martin Ejidra

On March 21, 2024, Bill 149 – Working for Workers Four Act, 2024 received Royal Assent. Initially announced on November 14, 2023, Bill 149 introduces various legislative changes including the following amendments to the Employment Standards Act, 2000 (“ESA“):

As of March 21, 2024:

• • Work performed during a trial period will now fall within the meaning of “training” making any person performing this work an employee under the ESA.
  • Employers cannot make deductions from an employee’s wages or cause the employee to return their wages to the employer in circumstances that now also include 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.

As of June 21, 2024:

• • Accounts used for payment of wages by direct deposit must meet the following requirements: a) be selected by the employee and in the employee’s name; b) no person other than the employee or a person authorized by the employee has access to the account; and c) the account meets the prescribed criteria, if any.
  • Employers are required to pay employee tips or gratuities by cash, check payable only to the employee, direct deposit (subject to aforementioned direct deposit requirements), or any other prescribed method.
  • If an employer has a policy in place with respect to the employer or director or shareholder of the employer sharing in tips or other gratuities redistributed, the employer must have, and keep posted, a copy of the policy in at least one conspicuous place in the workplace.
  • Employers may pay vacation pay accrued during a pay period on the pay day for that period (instead of as a lump sum prior to an employee’s vacation) if the employee and employer have made an agreement to that effect, and employers must pay an employee vacation pay in accordance with the timing set out in any such agreement.

On a day to be named by proclamation:

• • Employers are required to include expected salary ranges in publicly advertised job postings.
  • Employers cannot include requirements related to Canadian experience in publicly advertised jobs or on any application form.
  • Employers who use publicly advertised job postings must disclose if artificial intelligence is being used to screen, assess or select applicants.
  • Employers must retain copies of every publicly advertised job posting and any associated application form for three years after access to the posting by the general public is removed.

Takeaways:

Given these amendments and changes, employers should consider reviewing existing employment contracts to ensure they remain in compliance with the ESA, developing or redrafting applicable workplace policies, booklets or guidelines and developing or enhancing workplace procedures as they relate to job advertisement retention. In addition, obtaining agreements with respect to timing of vacation pay payments is now required and will require employers to take steps to put these agreements in place to the extent their existing documentation does not constitute an agreement, but is rather a policy.

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