While the new rules aren’t officially on the books as of the time of the writing of this article, Emond Harnden employment lawyer Veronica Blanco Sanchez says employers should be aware of two anticipated changes to the Employment Standards Act, 2000 (the “ESA”).
The changes are intended to increase transparency and could affect your recruitment practices.
The first change will require employers to include information regarding expected compensation (or expected compensation ranges) in publicly advertised job postings, and the second will require employers screening, assessing, or selecting applicants with AI to declare that in publicly advertised job postings.
Blanco Sanchez says that while both changes will likely warrant a conversation with your human resources department about how to roll them out effectively, the benefits should help businesses over the long-term.
Posting expected compensation ranges
“From a legal perspective, it’s pretty simple,” said Blanco Sanchez. “Once the changes come into effect, make sure you put your expected compensation or compensation ranges in your publicly advertised job postings.”
When the bill enacting this change becomes law, employers can expect that a regulation will likely follow which includes a definition of “range”. Saying that a job pays between $40K to $130K wouldn’t be honouring the spirit of transparency.
Blanco Sanchez believes that while posting expected compensation or compensation ranges could ruffle some feathers at first, it may provide a benefit for employers struggling with recruitment.
In effect, it’s a screening tool that makes compensation information available before candidates apply, potentially making the recruitment process more efficient.
It’s also an opportunity to highlight what makes you a great employer, she added. Prospective employees are motivated by many factors, like commute time, work culture, benefits, and the option to work from home.
In terms of next steps, Blanco Sanchez says employers should work with their human resources departments to address any questions or concerns that may arise with their current staff members as a result of the implementation of this change.
Using AI to screen, assess, or select applicants
While AI is a topic we’re still trying to wrap our heads around, employers who use it to screen, assess, or select applicants are expected to soon be required to declare that in publicly advertised job postings.
“So far, you won’t have to provide any details around what tool you’re using and how you’re using it,” said Blanco Sanchez. “It’s just a matter of stating that AI was used.”
But, she says employers should remember there are other laws governing the use of AI, like privacy laws. Understanding all the implications of the use of such tools will likely require a conversation with a lawyer to review your specific circumstances, given the complexity of the law.
Another important nuance to keep an eye on with respect to these anticipated changes is that the ESA will now also include an expanded definition of “employer” as it relates to the new job posting provisions.
“For the purposes of the new job posting provisions in the ESA, the definition of ‘employer’ will be amended to include a ‘prospective employer’,” said Blanco Sanchez. The proposed change is intended to promote more transparent hiring practices.
Finally, it is important to note that along with these anticipated changes, employers will also be required to retain copies of every publicly advertised job posting and any associated application form for 3 years after access to the posting by the general public is removed.
With the amended legislation expected to roll out over the course of the year, employers should keep their ear to the ground.
“It’s great that we’re starting the conversation now so that, for example, when regulations are released, you’re not caught completely off guard,” said Blanco Sanchez, adding that changes like these also typically come with a grace period.
“Staying ahead of the game is a best practice that helps employers be more competitive in the labour market,” she said.
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This article is intended to provide readers with general information only. It should not be regarded or relied upon as legal advice or opinion. Accessing, reading, relying on or otherwise using this article does not, under any circumstances, create a lawyer-client relationship between you and Emond Harnden.
