New Pay Transparency Legislation in BC
Update by Paula Krawus, Cofounder
Why Pay Transparency?
The Pay Transparency Act passed into law in British Columbia in May 2023. But the hotly-discussed rules for job postings came into force on November 1, 2023.
Based on the provincial government’s background and guidance, as well as the text of the law and regulation, we have put together a summary of the main rules that employers and employees should know about.
The provincial government estimates that in 2022, women in BC earned 17% less than men. Unfortunately, that pay gap is even wider when taking into consideration intersectionality like indigeneity, colour, gender identity and immigration. The economic disparity between genders is just one - but mighty - contributing factor to overall inequality.
One policy response has been to establish a Gender Equity Office with a broad mandate for its secretary covering multiple policy areas and assisting the Minister of Finance.
Another response to fix the pay equity problem in BC is the introduction of the Pay Transparency Act. Its purpose is to change employer behaviors around pay which contribute to the gender pay gap. This includes changing the environment of secrecy between employees about their pay, and annual reporting requirements for employers. The new legislation will also establish an annual report issued by the Ministry of Finance showcasing employer statistics about pay.
The Pay Transparency Act applies to all provincially-regulated employers in British Columbia. If you are not sure whether you are a provincially-regulated employer, contact PortaLaw for an Initial Meeting.
Legislative Overview
Job Postings
Beginning on November 1, 2023, employers are required to advertise pay on public job postings.
This part of the Pay Transparency Act makes it mandatory for employers to include the:
Expected salary/wage for the job
OR
Expected salary/wage range for the job
on any publicly advertised job opportunity.
The wage/salary information should reflect an employer’s reasonable expectation for wage/salary at the time of the posting. The posted wage/salary or range of wage/salary does not preclude an applicant from requesting something higher, or an employer offering something higher.
A “publicly advertised job opportunity” has a very broad definition. It means a specific job opportunity that an employer advertises in public in any way. This includes job postings through a recruiter, job board and job websites.
A salary range must have a top and bottom benchmark. For example, an employer cannot post a wage range of “up to $30 per hour”. Instead, it is acceptable to say that the wage range is “from $20 to $30 per hour”.
At this time, there is no rule about how wide the wage/salary range can be. Also, there is no requirement for employers to post about expected bonuses, overtime, tips or benefits.
The rest of the Pay Transparency Act has been in force since May 2023.
Pay History
An employer cannot seek out an applicant’s pay history in an way, including through the applicant themselves or a third party. Except if the applicant’s pay history is publicly accessible.
This means that an employer cannot ask anyone about an applicant’s pay history - the applicant, the applicant’s reference, their own friends who may have worked with the applicant etc.
Prohibited Reprisals
An employer cannot retaliate against an employee for:
Inquiring to the employer about their pay
Disclosing information about their pay to another employee or applicant
Inquiring to the employer about the pay transparency report or information contained in it
Asking the employer to comply with this law
Making a report to the director about the employer’s compliance or obligations about this law.
The “director” is the Director of Pay Transparency. However, at this time, the provincial government has not yet appointed a director.
Reporting
By November 1st of every year, an employer must prepare a “pay transparency report”. The rules around collection of employee information for this report and what goes in it, will be the subject of another article. Generally speaking, employers will need to collect information about the gender category of their employees and differences in pay between those categories. Employers will need to publish their reports in a publicly accessible way.
The requirement for reporting will apply to employers of different sizes on a rolling basis:
Starting November 1, 2023, the provincial government and other government entities
Starting November 1, 2024, BC employers with 1000 or more employees
Starting November 1, 2025, BC employers with 300 or more employees
Starting November 1, 2026, BC employers with 50 or more employees
After 2026, either BC employers with more than 49 employees or another prescribed number
Enforcement
The provincial government has not yet set up a system to enforce the Pay Transparency Act rules. There is no commissioner or tribunal where applicants and employees can file complaints. There is no system to penalize employers who do not comply with this law specifically.
Instead, for now, employees and applicants who wish to take legal action against an employer who has discriminated against them (regarding wages/salary) because of their sex or gender, should file their complaint with the BC Human Rights Tribunal.
Takeaway for Employers
Pay equity is a fundamental necessity for a respectful and dignified workplace. Sex and gender discrimination have no place in our workplaces. Although some of these new rules can be onerous for some employers, they reflect our society’s commitment to non-discrimination, which is not an easy feat.
All that being said, there is not a lot in this new law to enforce its pay equity rules. The provincial government still has not named a director, the Gender Equity Office is not active and certainly not mandated to enforce the new law. There are no penalties for breaching the legislation itself.
However, the Human Rights Code continues to govern employment relationships and prohibits discrimination in pay based on sex. This means that employers continue to have non-discrimination obligations under human rights law.
This article does not cover your legal obligations if you are a federally-regulated employer or have employees in other provinces which have their own pay equity legislation.
Takeaway for Employees
The legal infrastructure around discrimination in wages and employee protections in this area is growing. BC is catching up to Ontario and federal rules around equity. Although the new law does not include its own enforcement process - yet - it does fundamentally change how employers are required to act when posting jobs and managing employee inquiries about pay. Job postings are mostly public as will be the pay transparency reports. There is power in publicity.
Employees always have the option of taking discrimination complaints to the BC Human Rights Tribunal.
