Show Me The Money – Pay Transparency Act

Important Update: October 16, 2023

The BC government has just issued additional guidance on the requirements around wage or salary transparency under section 2 of the Pay Transparency Act.

Those requirements come into effect on Wednesday, November 1, 2023.

The government has made it clear that employers are not required to include information regarding bonus pay, commissions, overtime pay, tips or benefits on publicly advertised job postings.  Employers may of course choose to do so voluntarily.

The government has also made it clear that a wage or salary range that does not specify a minimum or maximum should not appear on a publicly advertised posting.  Such a range will not meet the requirements of the legislation.  The following examples have been provided:

• Compliant: “$20 – $30 per hour”    ☑
• Non-compliant: “$20 per hour and up” or “up to $30 per hour”   ☒

Employers and employees are not prohibited from negotiating higher wages or salaries.  As well, employers are not limited to paying employees what has been advertised in a posting.

The requirements of section 2 also apply to postings by third parties, e.g. job boards and recruitment platforms.  In addition, the requirements apply even if the posting is made outside BC but the position is “open to B.C. residents” and “may ever be filled by someone living in BC, either in-person or remotely”.

Finally, if the publicly advertised posting is a general “help wanted” posting and does not reference a specific job, the employer is not required to include wage or salary information.

——————————————————————————————————————————————————————

British Columbia’s Minister of Finance introduced Bill 13, the Pay Transparency Act on March 7, 2023 (“Bill 13”). Bill 13 received its third reading in the BC legislature on April 25, 2023 and received Royal Assent on May 11, 2023 with the exception of section 2 of the Act, which will pass into law on November 1, 2023. Regulations are expected to be drafted over the summer of 2023.

Background

According to government figures, women in BC made on average 17% less than men in 2022 [1]. This is the second highest pay gap in Canada, after Alberta [2]. The provincial government has stated that the introduction of pay transparency legislation is a step towards closing the gender pay gap.

When Bill 13 was introduced, the Minister of Finance noted that the pay gap affects people “all around the gender continuum, including non-binary, transgender and two-spirit people” [3]. The provincial government has indicated that they will be engaging in ongoing consultation as the reporting requirement is rolled out and there will be supports in place for employers.

What does Bill 13 do?

As of November 1, 2023, the Pay Transparency Act will require all BC employers to include the expected salary, wage, salary range or wage range for publicly advertised job opportunities (unless the employers are exempted from regulation).

The Pay Transparency Act has the following immediate effects which applies to all employers, regardless of size:

• Employers cannot ask an applicant for their pay history (unless that information is publicly available);
• Employers cannot discipline, or threaten to discipline an employee because they:
  • Ask their employer about their pay;
  • Share their pay information to another employee, or to an applicant;
  • Ask the employer about its transparency report (if required); or
  • Provide information to the Director of Pay Transparency about their employer.

Pay Transparency Reports

Employers will also be required to complete and publicly post annual transparency reports that contain certain information about employees that will be prescribed by regulation. This requirement will be phased in over four years by employer size:

• November 1, 2023: the B.C. government and 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; and
• November 1, 2026: all employers with 50 employees or more.

While the specific content of transparency reports will be prescribed by regulation (not yet available), the provincial government has stated that the purpose of the transparency reports will be to show gaps in pay for certain groups of employees.

Not all employers falling into the above categories will necessarily be required to complete a transparency report. The Pay Transparency Act indicates that there may be exemptions in the regulations, but those are not yet available.

What information will be included?

The Minster of Finance, along with the provincial government, stated that it acknowledges that while the gender pay gap is usually described as between men and women, it really occurs along a gender continuum [4]. The Minister said that the pay transparency reports that will be required under the legislation will highlight pay gaps between men, women and non-binary people at intersectional levels. While the government has not expressly stated what intersectional data it is considering collecting, it could include information such as ethnicity (including indigenous ancestry).

The legislation will require employers to “make reasonable efforts” to collect prescribed information from employees each year.  Since the legislation will likely require employers to disclose employee’s gender identity (and potentially other personal information not yet identified), which is personal information (albeit in an aggregated format), it is important to note that the Pay Transparency Act  does not require an employee to provide this information to their employer or to consent to disclosure, which may mean that pay transparency reports are not a complete and accurate reflection of each workplace.
____________________________________________________________________________________________

[1] Province of British Columbia, “Pay Transparency Laws in B.C.” online: <https://www2.gov.bc.ca/gov/content/gender-equity/pay-transparency-laws-in-bc>.

[2] Ibid.

[3] British Columbia, Legislative Assembly, Official Reports of Debates (Hansard), 42nd Parl, 4th Sess, No 284 (7 March 2023) at PAGE # (Hon. K. Conroy).

[4] Supra, 3