THE PROCESS LEGAL
Mar 26, 2024
Full disclosure: I did not use AI to write this blog
Ontario’s Working for Workers Four Act, 2023 (“Bill 149”) received royal assent on March 21, 2024.
While Bill 149 is now passed, many of its new employment standards requirements will only come into force on “a date to be proclaimed”.
One such requirement is the new provision in the Employment Standards Act, 2000 (“ESA”) governing the disclosure of artificial intelligence (“AI”) usage in employee recruitment and hiring. Once in force, the new ESA requirement will read as follows:
Every employer who advertises a publicly advertised job posting and who uses artificial intelligence to screen, assess or select applicants for the position shall include in the posting a statement disclosing the use of the artificial intelligence.
How should employers prepare? It depends.
Here’s a closer look some of the issues and outstanding questions raised by this new ESA provision:
What the provision applies to
The ESA’s new AI disclosure requirement will apply where the following three conditions are met:
The employer publicly advertises a job posting
The employer makes use of an artificial intelligence technology; and
The use of that technology is for the purpose of screening, assessing or selecting applicants for the publicly advertised posting.
What the provision requires
Employers whose job postings satisfy the three conditions above will be required to add a statement to the job posting that discloses “the use of the artificial intelligence”.
How will “artificial intelligence” be defined?
A definition of “artificial intelligence” is not set out in Bill 149, and will be provided in Regulations that will be filed by the Government of Ontario at a future date.
This makes the scope of the ESA’s new AI disclosure requirement uncertain for the time being.
If a broad definition of “artificial intelligence” is adopted in Regulations and encompasses any technology designed to simulate human problem-solving, then just about any software application used in the employee recruitment process could trigger the new disclosure requirement.
On the other hand, if a narrow definition of “artificial intelligence” is adopted in Regulations to encompass only technologies such as machine learning, deep learning or large language models; then only specialized tools such as ChatGPT would be captured by the new disclosure requirement.
What constitutes “screening, assessing or selecting applicants”?
While employers await official guidance on the matter, the language in Bill 149 suggests that these new AI disclosure requirements will only apply when AI is used to make a decision that would impact on the chances of an “applicant” to be selected for a posted job.
Where AI is used only at an earlier stage of the recruitment process that does not directly impact on “applicants”, the new disclosure requirements may not be triggered.
For example, the use of AI to generate interview questions would likely constitute a use of AI to “screen, assess or select applicants”. On the other hand, the same may not be true for the use of AI to generate the language in a job posting or to structure an employer’s recruitment strategy.
What suffices as a “statement disclosing the use of the artificial intelligence”?
A key area awaiting further guidance is the extent of the AI usage disclosure that will be required. Until further notice, a simple statement along the lines of “the employer uses artificial intelligence technologies in its recruitment processes” may be presumed sufficient.
However, even when adding such a one-liner to a job advertisement, employers should be prepared to address potential follow-up questions from job applicants, such as:
What measures have been taken to ensure your artificial intelligence does not discriminate against me?
Does your artificial intelligence use my information for other purposes?
How is my privacy being protected?
Contact inquiries@theprocesslegal.com to book a consultation on preparing your organization for the changes brought about by Bill 149.