Pay Transparency – Know The Laws Of Your Province

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Pay Transparency – Know The Laws Of Your Province

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“Salary competitive.”

Once a staple of job postings, this phrase has suddenly become not only obsolete but downright illegal in much of Canada. In the past decade, six provinces—British Columbia, New Brunswick, Newfoundland, Nova Scotia, Ontario, Prince Edward Island, and the Federal jurisdiction - have adopted so-called pay transparency laws requiring employers to be more forthcoming about how much they pay their employees. Where they are in effect, pay transparency laws generally require employers to:

Refrain from asking job applicants about their pay history.
List salary information for a position in job ads.
Refrain from retaliating against applicants or employees for asking about or discussing their pay with coworkers.

Federal and BC laws also require certain large employers to create annual pay transparency reports and post them on their website.

Here’s a look at the current pay transparency requirements—or lack thereof—in each part of Canada.

PAY TRANSPARENCY LAWS ACROSS CANADA

FEDERAL

Private sector employers who employ 100 or more employees on or in connection with a federal work, undertaking, or business must, on or before June 1 in each year, file with the Director a report for the immediately preceding calendar year listing the salary ranges of its employees and the degree of representation of persons who are members of designated groups in each range and in each prescribed subdivision of the range and any other information in relation to the salary of its employees that may be prescribed by regulation (Employment Equity Act (EEA), Sec. 18(1)(c)).
Public sector employers and government agencies are subject to similar reporting requirements.

ALBERTA

No pay transparency laws

BRITISH COLUMBIA

Unless exempted by regulation, an employer must, in an advertisement for a publicly advertised job opportunity:
1. specify either:
  1. the expected salary or wage for the job, or
  2. the expected salary or wage range for the job, subject to any prescribed limitations on the use of a range for this purpose, and
2. include any other prescribed information (Pay Transparency Act (PTA), Sec. 2).
An employer must not seek pay history information about an applicant for employment by any means, whether directly from the applicant or through a third party, unless the pay history information is publicly accessible (PTA, Sec. 3).
An employer must not dismiss, suspend, demote, discipline, harass, or otherwise disadvantage an employee, or threaten to do so, because the employee:
1. made inquiries to the employer about the employee's pay,
2. disclosed information about the employee's pay to another employee of the employer or to an individual who has applied for employment with the employer,
3. made inquiries to the employer about a pay transparency report or information contained in a pay transparency report,
4. asked the employer to comply with its obligations under the PTA, or
5. made a report to the director in relation to the employer's compliance with the employer's obligations under the PTA (PTA, Sec. 4).

Additional Obligations of “Reporting Employers”

A reporting employer must submit a pay transparency report to the government on or before November 1 of each year (PTA, Sec. 5).
The pay transparency report must list:
1. the name of the reporting employer;
2. the reporting employer's mailing address;
3. the applicable NAICS code;
4. the dates on which the reporting period began and ended;
5. the number of employees of the reporting employer as of January 1 in the year the pay transparency report is prepared, expressed in terms of one of the following ranges as applicable:
  1. 50 to 299 employees;
  2. 300 to 999 employees;

1,000 or more employees;

the applicable reference category;
the percentage of employees in each gender category who received overtime pay during the reporting period;
the percentage of employees in each gender category who received bonus pay during the reporting period;
unless there’s no reference category, the following information:
1. the difference between the mean hourly rate of pay of employees in the reference category and the mean hourly rate of pay of employees in each of the other gender categories;
2. the difference between the median hourly rate of pay of employees in the reference category and the median hourly rate of pay of employees in each of the other gender categories;

the difference between the mean amount of overtime pay of employees in the reference category who received overtime pay during the reporting period and the mean amount of overtime pay of employees in each of the other gender categories who received overtime pay during that reporting period;

the difference between the median amount of overtime pay of employees in the reference category who received overtime pay during the reporting period and the median amount of overtime pay of employees in each of the other gender categories who received overtime pay during that reporting period;
the difference between the mean number of overtime hours of employees in the reference category who worked overtime hours during the reporting period and the mean number of overtime hours of employees in each of the other gender categories who worked overtime hours during that reporting period;
the difference between the median number of overtime hours of employees in the reference category who worked overtime hours during the reporting period and the median number of overtime hours of employees in each of the other gender categories who worked overtime hours during that reporting period;

the difference between the mean amount of bonus pay of employees in the reference category who received bonus pay during the reporting period and the mean amount of bonus pay of employees in each of the other gender categories who received bonus pay during that reporting period;
the difference between the median amount of bonus pay of employees in the reference category who received bonus pay during the reporting period and the median amount of bonus pay of employees in each of the other gender categories who received bonus pay during that reporting period, determined in accordance with section 12 of the Regulation (Pay Transparency Reg, Sec. 3).

For the purposes of preparing a pay transparency report, a reporting employer must do the following:
1. during the first year in which the reporting employer is required to prepare a pay transparency report, make reasonable efforts to collect the prescribed information from each employee of the reporting employer;
2. at the time an individual becomes an employee of the reporting employer, make reasonable efforts to collect the prescribed information from that individual;
3. at least once in every calendar year, provide to each employee the opportunity:
  1. to provide the prescribed information, and
  2. to update or make additions to any information provided by the employee under this section (PTA, Sec. 6(1)).
4. A reporting employer must collect the above information from an employee in accordance with the regulations and inform the employee that the employee's disclosure of the information is voluntary (PTA, Sec. 6(2)).
5. A reporting employer must, as soon as practicable following completion of a pay transparency report, publish the report on a publicly accessible website maintained by or on behalf of the reporting employer (PTA, Sec. 7(1)).
6. If a reporting employer doesn’t have a publicly accessible website, it must, as soon as practicable following completion of a pay transparency report:
  1. make a copy of the report available to employees of the reporting employer in at least one conspicuous place in each workplace of the reporting employer, and
  2. make a copy of the report available to any member of the public who requests one (PTA, Sec. 7(2)).
7. A pay transparency report made available in accordance with the above must continue to be available until the reporting employer makes available a new pay transparency report (PTA, Sec. 7(3)).

MANITOBA

Assembly tabled but voted down legislation (Bill 222) similar to BC Pay Transparency Act in March 2022.

NEW BRUNSWICK

1. No pay transparency law.

NEWFOUNDLAND

Legislation has been adopted but hasn’t yet and may not ever take effect stating that: 1. Employer may not seek job applicant’s pay history, including via third party (other than information that’s publicly available), but may seek information about ranges of pay or aggregate pay provided for comparable positions; 2. Employer must list salary or wage amount or range in an ad for a publicly advertised job opportunity; 3. Employer must gather data and prepare annual pay transparency report; 4. Employer may not (or threaten to) intimidate, dismiss or otherwise penalize employees or job applicants for: (a) Asking about their pay; (b) Disclosing information about their pay to a co-worker or job applicant; (c) Asking about information in a pay transparency report; (d) Asking the employer to comply with the Act; or (e) Reporting about the employer’s compliance with the Act (Pay Equity & Pay Transparency Act)

NOVA SCOTIA

Prospective employer may not: (a) ask prospective employees for their wage history; (b) ask a prospective employee’s current or former employer for the prospect’s wage history; or (c) require a prospective employee’s wage history to meet maximum or minimum levels or any other criteria set by the prospective employer;
Prospective employers may confirm a prospective employee’s wage history if the prospective employee (a) voluntarily discloses it to them; (b) provides written authorization allowing them to obtain the confirmation; and (c) acknowledges in the written authorization that the prospective employee has determined that it is beneficial to the prospective employee to disclose the prospective employee’s wage history to the prospective employer;
Employer may not ban employees from discussing or disclosing information within the workplace about their own wages or the wages of another employee; and
An employer or employee whose job functions relate directly to the employer’s finances or HR may not disclose wage information about any employee unless: (a) the employee provides written authorization for release of that wage information; (b) the wage information is a matter of public record; (c) the disclosure is within the course of the job functions of the employer or a finance or HR employee of the employer; or (d) the wage information must be disclosed by law (Labour Standards Code, Secs. 57A and 57B)

ONTARIO

Assembly is working on and likely to pass in its first session of 2024 legislation to amend the Employment Standards Act that would require employers who advertise a publicly advertised job to list in the posting the expected compensation or range of composition for the position, subject to exceptions to be listed in regulations implementing the law (Bill 149, Working for Workers Four Act, 2023, Sec. 8.2)

In 2018, Ontario passed but hasn’t and may never proclaim effective pay transparency legislation stating that:

Employer may not seek job applicant’s pay history by any means, including via an agent (other than information that’s publicly available), but may seek information about ranges of pay or aggregate pay provided for comparable positions;
Employer may rely on information about pay ranges or aggregates for comparable positions or pay history information that job applicant discloses voluntarily discloses in determining the applicant’s compensation;
Employer must list expected compensation amount or range in a publicly advertised job posting for the position;
Employer with 100 or more employees must collect the information specified by regulations and prepare an annual pay transparency report by May 15 of each year; and
Employer or person acting on its behalf may not (or threaten to) intimidate, dismiss or otherwise penalize employees for: (a) Asking about their pay; (b) Disclosing their pay to another employee; (c) Asking about information in a pay transparency report; (d) Asking the employer to comply with the Act; or (e) Reporting about the employer’s compliance with the Act (Pay Transparency Act, 2018—not in effect)

PRINCE EDWARD ISLAND

Employer may not seek pay history information about an applicant by any means, whether personally or via an agent;
Applicants may disclose their pay history voluntarily, and without prompting, to either the employer or agent;
Employer may seek information about ranges of or aggregate pay for comparable positions;
Employer may use voluntarily disclosed pay history or pay ranges or aggregates for comparable positions in determining the applicant’s pay;
Above requirements don’t apply to publicly available information;
Employer must include expected pay amount or range in job ads for the position; and
Employer or person acting on its behalf may not (or threaten to) intimidate, dismiss or otherwise penalize an employee for (a) making inquiries to the employer about the employee’s pay or company pay policies; (b) disclosing the employee’s pay to another employee; (c) giving information about the employer’s compliance or non-compliance to the Department; or (d) asking the employer to comply with the law (Employment Standards Act, Secs. 5.8 to 5.10)