An additional piece of the B.C. Government’s new legislation regarding pay transparency takes effect today, November 1, 2023. Starting today, all B.C. employers must include the expected pay, or the expected pay range, for publicly advertised job opportunities.
The Pay Transparency Act was passed on May 11, 2023, and is intended to assist in closing the gender pay gap by addressing systemic discrimination in the workplace. According to the B.C. Government’s Discussion Paper on pay transparency, women in B.C. earned 16.7% less than men last year. The pay gap also disproportionately impacts Indigenous women, women of colour, and immigrant women, as well as women with disabilities and non-binary people. The new legislation aims to reduce this gap and improve pay equity.
Who Does it Apply to?
The Pay Transparency Act applies to all B.C. regulated employers. Federally regulated employers are subject to federal pay equity legislation, and employers in other provinces may be subject to similar legislation in their jurisdiction.
Unless exempted by regulation (of which there are currently none in effect) an employer must, in an advertisement for a publicly advertised job opportunity, specify either the expected salary or wage for the job, or the expected salary or wage range for the job.
This requirement does not apply to job advertisements that are not posted publicly. There is currently no specified size for the range that must be included in publicly advertised opportunities.
No Pay History
Effective May 11, 2023, employers in B.C. are no longer permitted to ask employment candidates what they were paid in positions with other employers. Employers are also prohibited from seeking this information from third parties (such as the former employer). However, employers may:
- Use the pay history information they already have about that employee to determine the pay for a new position; or
- Rely on publicly accessible information on the pay for similar positions
Fortunately, with the new pay transparency rules, employers should be able to access publicly available pay information for similar positions with relative ease.
Also effective as of May 11, 2023, employers in B.C. cannot retaliate against an employee by dismissing, suspending, demoting, disciplining, or harassing an employee who:
- Asks their employer about their pay;
- Reveals their pay to another employee or someone applying to work with their employer;
- Asks the employer about its pay transparency report; or
- Gives information to the Director of Pay Transparency about their employer
The new legislation contains pay transparency reporting requirements, which are being introduced in phases. The first phase is unlikely to impact most B.C. employers, but that will change in the coming years. By November 1, 2024, employers over a certain size will be required to publicly post annual pay transparency reports. The reporting requirements will broaden to include smaller employers each year to November 1, 2026.
Over the next four years, the reporting requirements will take effect as follows:
- By November 1, 2023: the B.C. government and the six largest Crown corporations, which are BC Hydro, BC Housing, BC Lottery Corp., BC Transit, ICBC, and Work Safe BC, will be required to begin posting annual pay transparency reports;
- By November 1, 2024: all employers with 1,000 employees or more will be required to begin posting annual pay transparency reports;
- By November 1, 2025: all employers with 300 employees or more will be required to begin posting annual pay transparency reports; and
- By November 1, 2026: all employers with 50 employees or more will be required to begin posting annual pay transparency reports.
It is not yet clear what specific information these pay transparency reports will require. Details on what must be included in the reports are currently being developed in collaboration with the B.C. Public Service Agency and the six largest Crown corporations.
What About Pay Equity?
While the new legislation does not include a requirement for pay equity, the Pay Transparency Act is intended to provide transparency regarding pay, which is an important tool for employees when it comes to achieving pay equity.
The new legislation does not contain a method for enforcing the new legislation. However, employees who have been discriminated against in relation to their pay can continue to seek redress under the B.C. Human Rights Code. The B.C. Human Rights Code protects against discrimination in employment based on prohibited grounds, including but not limited to gender, sex, and race. It also specifically outlines an employer’s obligation to not discriminate against its employees by employing an employee of one sex at a rate of pay lower than the pay of an employee of a different sex who performs similar or substantially similar work without reasonable justification (see s.12 of the B.C. Human Rights Code).
Implications for Employers
As a result of the new legislation, it will be even more important for employers to be clear on any valid reasons for pay discrepancies among employees performing similar work. While employers were already prevented from discriminating against employees by the Human Rights Code, the added transparency regarding salaries has the potential to raise questions and result in additional discrimination claims from employees. To prevent and defend against these claims, employers should be sure to document and clearly communicate any valid reasons for pay discrepancies among employees performing similar work, such as differences in experience, education, or performance.
The B.C. Government has provided a summary of the new legislation, which is available online here: https://www2.gov.bc.ca/gov/content/gender-equity/pay-transparency-laws-in-bc.
If you are an employer or an employee and you have questions about your rights and obligations regarding pay transparency, please feel free to contact our office at 250-762-5434 or by email at [email protected] to learn more.
The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.