‘Devil will be in the details’ with proposed workplace amendments

By Tony Poland, LegalMatters Staff • The Ontario government’s plan to expand the Working for Workers Act (WWA) includes changes that have tangible benefits for a broad range of employees, says Toronto employment lawyer Jeffrey M. Andrew.

“The devil will be in the details,” says Andrew, a partner with Cavalluzzo LLP. “In employment law, things tend to move slowly. But what is proposed can potentially have a positive impact on numerous types of employees.”

David Piccini, Minister of Labour, Immigration, Training and Skills Development, says the province is introducing legislation in the Working for Workers Four Act, 2023, to ensure Ontario will “continue leading the country in ground-breaking protections for workers.”

If passed the legislation would:

• Require employers to disclose salary ranges in job postings and if artificial intelligence (AI) is used during the hiring process.
• Support injured workers by enabling “super indexing” increases to Workplace Safety and Insurance Board (WSIB) benefits above the annual rate of inflation to increase pay for injured workers, along with improving cancer coverage for firefighters.
• Make Ontario the first province in Canada to ban the use of Canadian work experience as a requirement in job postings or application forms.
• Strengthen wage protections for restaurant and hospitality workers by banning unpaid trial shifts, making clear employers can no longer deduct an employee’s wages for a dine and dash, gas and dash, or any other stolen property. It would also provide protection for employee gratuities.

Andrew tells LegalMattersCanada.ca that he expects many elements of the proposed legislation will be welcomed by employees, including provisions to disclose salary ranges in job postings.

Job seekers can ‘self-select’

“To me, that one really makes sense,” he says. “First, when people are thinking about applying for a position, they can self-select as to whether the salary range is something they find acceptable. That is just efficient.”

Andrew says it always struck him as odd that people will be asked for their salary expectations during a job interview.

“It is a bit of a gamble. Depending on what you ask for, you can undersell yourself,” he says. “And if your range is more than what a company is willing to pay, it is unlikely you are going to get the job and you have just wasted your time.”

The proposal will also address the issue of pay equity, the government states. Women in Ontario earn an average of 87 cents for every dollar earned by men. Including salary ranges with job postings can help close the gender pay gap, according to the province.

Proponents of the plan say it can help a company and its employees better assess any underlying unfairness in compensation, which could lead to policies to correct discrepancies.

“Women are typically undervalued in terms of what they are paid,” says Andrew. “Some who specialize in pay equity advocacy have called this a good first step.”

He says while people have spoken about the need for pay transparency to level the playing field, the proposed legislation will not necessarily achieve that goal.

‘It does not provide the full answer’

“A salary range could be broad enough that there is still the ability to discriminate. An employer could offer one worker less remuneration than another within that range,” says Andrew. “That is perhaps why some are saying it is a good first step. It does not provide the full answer.

“But what it does mean is if employers are advertising ranges for particular jobs and the history of what they actually pay for individuals demonstrate some gender disparity, then it perhaps makes it a little easier to prove that they are being discriminatory,” he adds. “Knowing they could be monitored may make employers more conscious about the need to be fair.”

Prohibiting the requirement of Canadian work experience is an idea whose time has come, says Andrew. 

“I have dealt with people who were accountants, doctors or others with training and experience from another country who were reduced to working outside their field because they couldn’t get their professional qualifications recognized in this country,” he says. “If you are an accountant in one country, why do you need Canadian accounting experience? We were welcoming immigrants into our country. Why make it harder for trained professionals to get their foot in the door? 

“The question is how do you make the hiring process fair for people so that we are not actually imposing unreasonable and unnecessary barriers to those who have arrived from other countries,” Andrew adds. “It is also an economic efficiency thing in the sense that if people have the ability to do certain types of jobs, why not allow them to apply for the appropriate positions based on their past experience in another country?”

Proposals to help hospitality sector workers

He says he is also in favour of proposals to help those who work in the hospitality sector. If passed, an amendment to the WWA will mean employees will no longer be out of pocket if a diner runs out on a restaurant bill or if someone drives away from a gas station without paying after refuelling their vehicle.

“It is unacceptable that any worker in our province should have their wages deducted or see themselves put in harm’s way because of someone else’s criminal activity,” Piccini stated.

The government is also proposing changes that would require employers to inform workers if they have a policy of sharing pooled tips, a practice that is only allowed if they perform the same work as their colleagues.

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As well, the province wants to address the rise of digital payment platforms in the service industry, which can include fees for workers to access their tips.

Andrew explains that many people pay for their meals and tips electronically. Some restaurants use a service that gives people access to their share of the tips.

“But they have to pay for the right to access that service,” he says. “A worker is presumably already paying for their bank account to access their money. Why should they have to pay someone else to get the money from the tips they earned?”

Examining the use of non-disclosure agreements

Along with the proposed amendments, the Ford government is also launching consultations to restrict the use of non-disclosure agreements (NDAs) in the settlement of cases of workplace sexual harassment, misconduct or violence.

“This is a controversial issue that has been kicked around for a few years,” says Andrew. “I have been involved in many harassment cases representing the accused person or the complainant, so I see both sides of the issue and the pros and cons of restricting the use of NDAs.” 

He says when harassment cases are settled there can be an agreement prohibiting either side from discussing details of the case. 

“They are all drafted a little differently but the crux is that the complainant often cannot discuss the matter with anybody besides their legal and financial advisors and immediate family,” says Andrew. “Do people speak more broadly than that? My guess is they probably often do. They may speak to friends, which technically is a breach. Of course, if it never comes to the employer’s attention or becomes a public issue, it is not something you ever hear about. 

“But part of the challenge, particularly in harassment cases, is that people may seek therapy so talking to your therapist about what happened is technically a violation,” he adds. “The concern about violating the NDA can hang over a person, who may worry that the company is going to sue them for whatever they got paid in the settlement.”

Andrew says there have been high-profile cases where people have settled and the alleged harasser has gone on to repeat their behaviour. 

Public interest concerns

“Some believe, with some justification, that there is a public interest in being able to know about these types of transgressions as a warning to others,” he says. “But if a restrictive non-disclosure agreement is in place, that cannot happen.”

If NDAs are banned, people would be allowed to speak of their experience but that can have its drawbacks as well, Andrew says.

“The victim may be able to go public but the perpetrator could make a case for defamation, whether that claim is true or not,” he says. “Under Canadian law, you are typically required to prove the truth of your statements. This means you could be caught up in litigation and spending money on legal fees which may actually be in excess of the settlement you received.”

There is also the fear that restricting the use of NDAs could have a chilling effect on settlements, Andrew says.

“Typically, the purpose of a settlement is to put the issue to rest but if somebody can continue to speak publicly about it what is the company getting out of settling? They don’t want to be accused publicly, particularly when they are paying money to resolve the case,” he says. “That could lead to more companies or individuals deciding to litigate.

“Having said that, I believe employers will still see the value of trying to resolve these cases and moving on,” Andrew adds. “My guess, too, is that most complainants want to put the matter behind them as well. In the end, there is no simple answer. There are many competing and conflicting considerations.”