Canada: Unpacking The Requirements Of British Columbia's Pay Transparency Act

Under British Columbia's Pay Transparency Act, as of November 1, 2023, all B.C. employers are required to post wage and salary information on all of their public job postings.

Quick Hits

• As of May 2023, employers in British Columbia are prohibited from asking job candidates how much they were paid in former positions and may not preclude employees from asking about their pay or discussing it with coworkers.
• All B.C. employers now have to include wage and salary information in their public job postings.
• Pay transparency reports will be required to show a breakdown of pay for employees based on gender.

British Columbia's Pay Transparency Act represents part of a global trend toward enacting pay transparency laws. There are three central components to B.C.'s new pay transparency law: wage and salary information in job postings, information collection and reporting on pay transparency, and rules regarding pay history and pay secrecy.

Wage and Salary Information in Public Job Postings

The B.C. government has recently published guidelines (not regulations, so indicative only) on how employers can be compliant with these new requirements, which are applicable as of November 1, 2023. Note that these requirements do not apply to non-public or internal job postings.

Disclosure of bonus pay, overtime pay, tips, or benefits on job postings is not required. However, the expected wage or salary or expected wage or salary range must be included within the posting. To illustrate, the B.C. government notes that the following would all be acceptable:

• $20 per hour
• $20–$30 per hour
• $40,000 annually
• $40,000–$60,000 annually

Employers may not include an unspecified minimum or maximum amount, such as "$20 per hour and up" or "up to $30 per hour." Note that if a wage or salary range is used in a publicly advertised job posting, it must be adequately specified. The B.C. government has not yet provided additional guidance on how broad the range on an advertised wage or salary range can be.

According to the guidelines, the wage or salary information that appears in the job advertisement "should be the employer's reasonable expectation of pay for the job at the time of the posting." Nonetheless, an applicant may still request a higher wage or salary than the amount advertised, or the employer may agree to pay an applicant a higher wage or salary than the amount advertised.

The requirement applies equally to the employer's own advertisements and to postings made by, or on behalf of, the employer on third-party websites. It also applies to jobs advertised in other jurisdictions if the position is open to B.C. residents and could be filled by someone living in B.C., either in person or working remotely. The requirement does not apply to more general "help wanted" posters that are not for particular positions, or to more general recruitment campaigns that do not mention specific job opportunities.

Pay Transparency Reports

The Pay Transparency Act requires reports to be completed and posted on November 1 of each year. This provision is being implemented on a rolling basis and applies to the following employers over the next few years:

• November 1, 2023: the B.C. government and the six largest 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 reports are required to show gaps in pay for certain designated groups. The designated group is the gender category of employees, defined as being "man," "woman," "non-binary," and "unknown." The "unknown" category applies to those who do not identify with any of the three other categories, who do not wish to specify which gender category applies to them, or about whom the employer does not otherwise have gender information.

Under the Pay Transparency Regulation, B.C. Reg. 225/2023, the following must be included in the report:

• Name of the employer
• Mailing address
• Applicable North American Industry Classification (NAICS) code Dates
• when the reporting period began and ended
• Number of employees, expressed as 50–299, 300–999, or 1,000 or more

The following pay information must also be included in the report:

• the percentage of employees in each gender category who
• received overtime pay;
• received bonus pay (which is broadly defined in the Pay Transparency Act and regulation, and includes nondiscretionary performance-related bonuses and commissions; pay in the form of securities; bonuses from profit sharing; and discretionary bonuses, such as holiday and year-end bonuses);
• the mean and median (a) hourly rate; (b) overtime pay; (c) overtime hours; and (d) bonus pay of employees in the "reference group" and the other gender categories.

Note that the "reference category" will be designated as follows:

• "Man," if there are 10 or more employees of that gender category in the workplace;
• "Unknown," if there are fewer than 10 employees in the "man" gender category, but 10 or more in that gender category;
• "Non-binary," if 10 or more employees are in that gender category, and less than 10 employees for both "man" and "unknown."

If there are fewer than 10 employees in a given category ("man", "unknown", and "non-binary"), there is no reference category and the above information is not required to be included in the report for that gender category. The gender category "woman" is not available as a "reference category" under the Regulation.

Section 13 of the Regulation also provides that the report is to include a ranking of employees based on earnings, from lowest hourly rate of pay to the highest hourly rate of pay; the distribution of these employees into four segments, each with an equal number of employees; and the percentage of employees in each gender category across the four segments.

The Pay Transparency Act requires that an employer "make reasonable efforts to collect the prescribed information" for the report from current employees and new employees. The employer must communicate to employees that the disclosure of this information is strictly voluntary. Employees must be given the opportunity to "provide the prescribed information, and to update or make additions to any information [provided previously]."

A reporting employer must send the completed report to the B.C. government's director of pay transparency and "must, as soon as practicable ... publish the report on a publicly accessible website maintained by or on behalf of the reporting employer." If the employer does not have a publicly accessible website, the employer must "make a copy of the report available to employees" by posting it in a conspicuous place in the workplace, and the employer must "make a copy of the report available to any member of the public who requests one." These reports, whether posted online or in a workplace, are to remain available until newer versions of the reports are produced.

The minister of finance responsible for pay transparency will publish a report in June of each year, describing the differences in pay among the prescribed groups, an analysis of trends, and the number of reports of noncompliance received from the information in the reports of employers across B.C.

Pay History and Pay Secrecy

Sections in the Pay Transparency Act regarding pay history and pay secrecy have already been in effect since May 2023. These sections prohibit employers from asking job candidates how much they were paid at positions with other employers. Anti-retaliation provisions also prohibit an employer from dismissing, suspending, demoting, disciplining, harassing, or otherwise disadvantaging an employee (or threatening to do so) because the employee:

• "made inquiries to the employer about the employee's pay";
• "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";
• "made inquiries to the employer about a pay transparency report or information contained in a pay transparency report";
• "asked the employer to comply with the employer's obligations under [the] Act"; or
• "made a report to the director [of pay transparency] in relation to the employer's compliance with the employer's obligations under [the] Act."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.