NOTE: On Nov 23/23, join our team for a noon webinar on this topic. Register HERE.

On May 11, 2023, the BC government passed the new Pay Transparency Act (the “Act”) which places new requirements on BC employers in order to address systemic discrimination in the workplace. The legislation was enacted to address the current pay gap between men and women, especially Indigenous women, women of colour, immigrant woman, women with disabilities, and non-binary people.

Employers Obligations and Prohibitions

The Act mandates new obligations surrounding pay transparency for provincially regulated employers.

Pay History Information

Employers in BC can no longer ask job applicants about what they have been paid at positions with other employers. However, employers may still use the pay history information they already have about that employee to determine the pay for a new position and rely on publicly accessible information on the pay for similar positions.

Pay Secrecy

Employers in BC cannot dismiss, suspend, demote, discipline or harass an employee who:

• inquires about their pay;
• discloses their pay to another employee or to a prospective employee;
• questions their employer about a pay transparency report or its contents;
• requests their employer to comply with the Act; or
• makes a report to the Director of Pay Transparency with respect to their employer’s compliance with the Act.

Publicly Advertised Job Postings

Beginning November 1, 2023, all employers in BC must include the expected pay or the expected pay range for a specific job opportunity that they advertise publicly.

Pay Transparency Report

Employers above a certain size will be required to complete and post pay transparency reports by November 1st of each year. The report will have to be distributed to all employees and published on a publicly accessible website. This requirement will apply in stages over the next four years:

November 1, 2023

BC government and six Crown corporations (BC Hydro, BC Housing, BC Lottery Corp., BC Transit, ICBC and Work Safe BC)

November 1, 2024

All employers with 1,000 employees or more

November 1, 2025

All employers with 300 employees or more

November 1, 2026

All employers with 50 employees or more

The pay transparency report will include information about the reporting employer, the composition of its workforce, the differences in pay in relation to employees’ self-identified gender and other characteristics, and any other information set out in future regulations. However, there is currently not a prescribed manner in which a reporting employer must collect the information from the employees pursuant to the Act. The Act requires that reporting employers “make reasonable efforts” to collect the required information from each employee. When collecting the information, reporting employers must inform the employee that their disclosure of personal information for the purpose of the pay transparency report is voluntary.

By June 1 of each calendar year, starting in 2024, the provincial government will publish an annual report that includes information about pay differences, trends, and reports of non-compliance, amongst other things.

Employees and Privacy Concerns

Employees can decline to give their gender information to their employer for the purposes of preparing the pay transparency report. During Parliamentary discussions, privacy concerns were a main topic, including questions on anonymizing the aggregate data. Officials made it clear that privacy and personal safety are paramount throughout this process, and they will continue to work with employers on the effectiveness of the reporting tools and develop regulations where needed.

Enforcement

The Act does not currently set out penalties for noncompliant employers or oblige employers to disclose any inequities in pay. It also does not designate a particular body, such as the Employment Standards Branch, to investigate or discipline employers, so it is unclear what enforcement of the Act may look like. Currently, there are no enforcement mechanisms in the Act. It is possible that enforcement may be addressed by a future regulation. The government is taking a “name and shame” technique for compliance focusing on reputational risk. It has exempted the legislation from the Offence Act as it does not provide any formal compliance and enforcement mechanisms currently.

Nevertheless, BC employees already have the ability to bring a complaint to the BC Human Rights Tribunal if they feel that they have been discriminated against on the basis of their sex and gender identity, for example, which are protected grounds of discrimination under the BC Human Rights Code (the “Code”). In addition, section 12 of the Code specifically prohibits BC employers from employing an employee of one sex for work at a pay rate that is less than the pay rate at which an employee of the other sex is employed for similar work.

Takeaways for Employers

Employers should be informed of their new obligations under this legislation which is aimed to promote pay transparency. Employers should review their hiring practices and policies to ensure compliance. While most employers will not have to produce a pay transparency report in 2023, all employers should prepare to be able to meet their reporting obligations once required to do so.

If you have questions or need assistance with updating policies, contact a member of our Workplace Law Group – we’re here to help.