'In aggregate, it is a lot more that employers need to be cognizant of; it represents a pretty big investment in terms of time and administrative costs'
Yet again, the Ontario government has announced changes focused on greater transparency for workers – which means further requirements for employers.
The latest developments would mandate greater disclosure around job ads and for job applicants, along with hiking fines for violating the Employment Standards Act (ESA).
"We know that the vast majority of employers across Ontario are doing right by their staff and customers and helping drive the economic prosperity of our province,” said David Piccini, Minister of Labour, Immigration, Training and Skills Development. “But with today’s announcement, we are sending a clear message to those bad actor employers out there that there are real consequences for bad behaviour. We are also supporting jobseekers by taking a balanced approach that gives them greater certainty in the hiring process without adding unnecessary or onerous requirements for employers.”
But all the recent announcements out of Ontario – such as transparency around AI and pay in job ads and limiting the requirement for Canadian experience — constitute a lot of small minor changes that put more obligations on employers, says Anthony Kwong, associate at Mathews Dinsdale in Toronto.
“The upfront cost of implementing this stuff isn't huge, or individually it might not be that much, but in the aggregate, it is a lot more that employers need to be cognizant of. So it represents a pretty big investment in terms of time and administrative costs.”
Disclosing if job vacancies are real
The government is intending to propose changes to the ESA that would, if passed, require larger employers to disclose in publicly advertised job advertisements whether a job vacancy exists or not.
It cites a 2022 survey of 1,000 hiring managers by Clarify Capital that found 50 per cent of hiring managers were creating job openings to keep a talent pool “at the ready” for when they are hiring, without the intention to hire in the immediate term.
But Kwong says he’s not entirely sure how big of a problem this is, the idea of false advertising or “ghost jobs” by employers.
“Looking at all of the changes across a bunch of these Working for Workers Acts, they're just increasing transparency for prospective employees. So, in a way, they're not quite substantive protections, it's more just [about] more information being given to job applicants.”
In a downturn, there's a lot of good people struggling to find work, while many companies are looking to do more with less, leading to layoffs or reduced hiring, says Adam Delgado, principal consultant and recruitment manager at North Technology People in Toronto.
“I don't know if raising a fine for a ghost job is going to fix this problem,” he says, adding the government’s rules continue to focus on problem recruiters.
‘Copout’: employers keeping pool of candidates
But the problem of job ads for jobs that don’t actually exist is a real one, says Delgado, and “nobody’s going to admit that.”
What fuels this type of behaviour is the way some job platforms work, he says. On LinkedIn, for example, employers must pay $1,000 or $1,500 per year for one job slot, or hundreds more for several job slots.
“You want to use that slot as much as you can, you don't just want to be ‘Oh, well, we're not hiring, we’re wasting hundreds and hundreds of dollars a month.’ So [they decide] ‘Let's put some job ads out, because we know we're going to be hiring in Q3, and let's get a pool of candidates so when we do hire, we've got these candidates.’”
And often employers will advertise a job role and hold out for that perfect candidate, says Delgado, citing the term “evergreen.”
“We’ve had clients tell me: ‘Adam, we've got an evergreen machine learning role open.’ And I'm like… ‘How many roles do you actually need to fill?’ ‘Oh, well, we're always hiring.’ ‘So you're telling me you're going to hire 50 machine learning engineers this year?’ ‘Oh, no, no, no.’
“I think that's a bit of a copout to always keep that position posted and keep a fresh pool of applications coming in.”
And it’s an approach that can be detrimental to employers, says Delgado.
“It's not a promising story to tell if you see that same company advertising the same role over and over and over again — the usual assumption is that there's something wrong; people keep leaving, or they're not paying enough, or nobody wants to work for them.”
Response required: job applicants must hear from employers
Additionally, proposed changes would require larger employers to respond to job applicants whom they have interviewed for publicly advertised job postings, which would make Ontario the first province in Canada to set this standard.
The process of applying for a job “is soul destroying,” says Delgado, citing a lack of response from many recruiters or employers.
“This is why recruitment agencies get a bad rap. And this is why people hate looking for work is because of this exact situation — you'll apply and then you'll never hear back,” he says, adding part of the problem is Canada’s ghosting culture of not being able to give someone direct feedback and “not wanting to be the bad guy.”
The two requirements are addressing the fears of job applicants when they don’t hear back about a job after applying or after an interview, says Kwong.
But does that mean Ministry of Labour officials are going to go onto job sites or contact employers to ask if they’ve responded to job applicants?
“All of this is going to be, essentially, I think complaint-driven,” he says, citing other changes announced under Ontario’s Occupational Health and Safety Act (OHSA concerning diversity on construction sites.
Watch for clarifications of hiring rules
The Ontario government has said it intends to consult on these proposed changes “to ensure they are implemented in a manner that does not cause undue red tape for employers (such as the size of the business involved or the most efficient way to respond to jobseekers once a position has been filled).
For HR and employers, the key here is to pay attention to any upcoming clarifications or regulations from Ontario that explain the requirements in more detail, says Kwong, “particularly on the notifying applicants that a job has been filled.”
And the government has said that it will be consulting on the method of communication, he says.
“There might be some prescribed methods that are acceptable, there might be some that are not included. So that that'll be an important distinction, whether it's by email or phone call or mail, what have you; there may be certain ways that that will satisfy that requirement and others that might not.”
Higher fines for ESA violations in Ontario
If passed, the legislation would double the maximum fine for individuals convicted of violating the ESA from $50,000 to $100,000, which would be the highest fine in Canada. The government will also make regulatory changes to increase the penalty for repeat offenders who have contravened the same provision of the ESA three or more times from $1,000 to $5,000.
Violations of the ESA include failure to pay wages, penalizing employees for taking pregnancy or parental leave and paying employees unequal pay for equal work on the basis of gender.
But this might not mean a significant change, says Kwong.
“The vast majority of violations under the ESA have previously resulted in orders from the Ministry of Labour, primarily just being orders to pay or with the administrative surcharge. So these fines that they're increasing actually just apply to convictions, or notices of contraventions, which, under the ESA, are exceedingly rare.
“And historically, it has basically just been reserved for those who blatantly ignore Ministry of Labour orders… it’s like a bigger stick to go after some of the obvious or blatant offenders.”
