Looking to change how regulated professions assess candidates
Over recent weeks, the Ontario government has announced proposed changes to labour and employment laws and regulations – including some that affect the legal profession.
Bill 149, Working for Workers Four Act, 2023, is currently in the second reading stage. If passed, it will affect the Digital Platform Workers’ Rights Act, 2022; the Employment Standards Act, 2000; the Workplace Safety and Insurance Act, 1997; and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, and it is changed to this final act that involves members of the legal profession, says employment lawyer Alexandra Monkhouse, a partner with Monkhouse Law in Toronto.
“Essentially, what the changes do is allow the government to prescribe requirements for the assessment of the qualifications,” she explains. “Realistically, regulated professions can assess [members’] qualifications, but they have to do it in an objective, fair and transparent way. They can choose to do it directly, or they can have a third party do that. But now, the legislators put in a provision saying that they can prescribe regulations to define objective fairness and transparency. And I think that well may give rise to a lot of questions.”
Although that provision may lead to questions, Monkhouse says that other aspects of the bill provide helpful clarifications to employment situations. Among this group of changes is one addressing vacation pay that says “any deviations from the rule that vacation pay shall be paid before commencing that vacation have to be made pursuant to an agreement made between the employee and employer,” she says, adding that as there are a number of class actions in progress throughout Ontario and Canada against banks regarding vacation pay, “this might be a useful clarification for everybody.”
Monkhouse notes that another clarification involves paying job applicants who are required to work a trial period as part of the hiring process. Under the proposed changes, the applicants would be classified as employees.
The government gave the example of restaurant wait staff typically being subjected to trial shifts when it introduced this change to the legislation. There is one other update that is also aimed squarely at the food-service industry. If the bill is passed, restaurants will have to post their tip-sharing policy in a way that is visible to all employees. There are also updates regarding how tips are paid out to staff.
Dining and dashing is one problem faced by wait staff, but customers not paying for their items isn’t limited to the restaurant industry. Under the updated legislation, Monkhouse says that employers will not be able to deduct money to cover cash shortages or property losses from employees’ wages.
When it comes to paying workers, Monkhouse notes that one important change is that direct deposits now must be paid into an account of the employee’s choosing. “Before, the provision said it had to be made in the employee’s name,” she says, which meant that an employer, for example, a bank, could insist that money be deposited into an account at that particular bank. Now, those employees have the right to have their money deposited elsewhere.
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Another profession is specifically addressed in the proposed legislation. The bill also states that firefighters and fire investigators who have worked for 15 years and who develop esophageal cancer will be presumed to have developed an occupational disease, unless the contrary is shown.
Other proposed changes hinge on regulations and rules to be determined at a future date. One of these includes paying digital platform workers such as Uber drivers a minimum wage.
“Initially, the act mentioned that for the purpose of determining the minimum wage, gratuities will not be included, but only for the particular assignment. Now they’re saying you shouldn’t be looking at gratuities when you’re determining minimum wages at all,” she explains.
In relationship to this change, Monkhouse says the government still needs to set some regulations to govern the profession. For example, it must determine at what point does the driver starts getting paid. She says that right now, it kicks in once the driver is engaged to pick up a customer, but there will likely be further clarification about what happens while a driver is waiting for an assignment after logging into the app.
In addition to making changes that affect people who are already employed, several of the updated laws are intended to be applied to the job-seeking process. The government intends to require job ads to include a salary range for the position and to indicate whether AI is being used to screen, assess or select applicants. Additionally, employers will no longer be able to specify Canadian experience only.
But again, these changes are also ones that will be affected by regulations that have yet to be written. With regards to AI, Monkhouse says that the government will have to define what AI means.
“Sometimes, you don’t necessarily know what the benefit of a regulation that includes such provisions are until it’s actually tested in real life,” she says. “There might be a way that by providing that artificial intelligence is used, there are certain codes and best practices that will have to be respected, and that would give more protections to employees. I’m thinking that may be the benefit of having such information out there.”
Similarly, there are provisions for exemptions to the salary-range posting rules, but the government hasn’t defined what they are yet. When it comes to posting salary ranges, Monkhouse explains that companies will be required to retain copies of the job postings and applications but that there is no audit process being applied to see if posting salary ranges helps close the male-female wage gap, which is one of the reasons the government cited in implementing this change.
“I suppose, in certain circumstances, the fact that this information would be retained, could provide ammunition for anybody who would be claiming that there’s some sort of discrimination,” says Monkhouse.
The sheer volume of changes that have been proposed will take a while for the legal profession to fully absorb, according to Monkhouse.
“To be honest, I want to see what happens with all of the new legislation and how that’s going to be playing out. I wouldn’t expect any other changes. I wouldn’t wish for any other changes right off the bat [in 2024]. We need a bit of time to figure out how all of this stuff works.”
