Employer Considerations for Job Postings: The Effects of Bills 149 and 190

On November 14, 2023, Bill 149, Working for Workers Four Act, 2024 was first read in the Legislative Assembly. Introduced by the Honourable David Piccini, Ontario’s Minister of Labour, Immigration, Training and Skills Development, Bill 149 presents important changes to the Employment Standards Act, 2000 (“ESA”).

Bill 149 received Royal Assent on March 21, 2024, with several amendments taking effect immediately. Additional amendments came into force on June 21, 2024. Furthermore, a follow up bill, Bill 190, the Working for Workers Five Act, 2024, received Royal Assent on October 28, 2024.

While Bill 149 introduced immediate changes to the definition of an “employee”, this was not the most anticipated amendment among the public. Current discourse centers on provisions that have yet to be implemented – particularly those related to public and online job postings. Bill 149 establishes new requirements in this area, while Bill 190 proposes additional enhancements to these public job posting obligations.

As the use of artificial intelligence has become increasingly popular with the advancement of programs such as ChatGPT, employment standards will be adjusted. Bill 149 presents employers with two new obligations when it comes to advertising openings in their companies being, (1) the disclosure of a salary range, and (2) transparency as to the use of artificial intelligence within the recruitment process.

Disclosure of salary and retaining information – in force on January 1, 2026

Section 8.2(2) of the ESA will mandate that all employers who publish a “publicly advertised job posting” must provide details as to the expected compensation or range of compensation, for the position being filled. There are, however, exceptions to this new amendment as prescribed by O. Reg. 476/24: RULES AND EXEMPTIONS RE JOB POSTINGS.

Pursuant to O. Reg. 476/24, section 8.2(2) will not apply to publicly advertised job postings that have an annual compensation of more than $200,000 or job positions that have a range of expected compensation that exceeds $200,000 annually.

Under Bill 190, employers will also be required to retain copies of every publicly advertised job posting for a period of three years following the removal of public access to the post. Bill 190 will amend section 15 of the ESA.

Disclosure of the use of artificial intelligence – in force on January 1, 2026

Further to the implementation of publishing a salary range, the new changes to the ESA will also require employers to disclose the use of artificial intelligence in the hiring process. Employers who intend to use artificial intelligence to screen, assess, or even select applicants for a position will be required to indicate such on the job posting.

Definitions of artificial intelligence and publicly advertised job postings – in force on January 1, 2026

The Government of Ontario sought public input as to the job posting section of the ESA to ensure the smooth implementation of these new areas of regulation. On August 29 th , 2024, the Government of Ontario launched a consultation, in which they sought input from employers, employees and other stakeholders on a variety of questions, including how to define the terms “publicly advertised job posting” and “artificial intelligence”. The consultation has since closed, and submissions are no longer being accepted.

While not yet in force, the ESA sets out the defined terms of both “publicly advertised job posting” and “artificial intelligence.” As it sits, O. Reg. 476/24 defines a publicly advertised job posting as:

• an external job posting that an employer or a person acting on behalf of an employer advertises to the general public in any manner but does not include,
  • (a)  a general recruitment campaign that does not advertise a specific
    position,
  • (b)  a general help wanted sign that does not advertise a specific position,
  • (c)  a posting for a position that is restricted to existing employees of the employer, or
  • (d)  a posting for a position for which work is to be,
    • (i)  performed outside Ontario, or
    • (ii)  performed outside Ontario and in Ontario and the work performed outside Ontario is not a continuation of work performed in Ontario.

Since artificial intelligence is a rapidly evolving concept, different standards, principles, and regulatory frameworks provide somewhat varied definitions. Currently, the proposed definition for “artificial intelligence” under O. Reg. 476/24: RULES AND EXEMPTIONS RE JOB POSTINGS reads as follows:

• “Artificial intelligence” means a machine-based system that, for explicit or implicit objectives, infers from the input it receives to generate outputs such as predictions, content, recommendations or decisions that can influence physical or virtual environments.

As there are various artificial intelligence bots that offer a wide range of services, it is imperative for the definition to provide enough clarity to not risk employers freely interpreting the terms of the law and potentially creating compliance issues. The same applies for the definition of publicly advertised job postings.

Key takeaways: transparency & proactivity

The recent changes to the employment standards legislation are designed to promote greater transparency in the hiring process. While some of the changes are not yet in effect, employers should already be considering how the new definitions may impact their advertising of job postings and overall recruitment practices. It is therefore best practice for employers to be proactive in ensuring that their processes are in compliance with the law.

For any questions on the new legislative changes, please contact our Employment Law team.