Recently, legislation regarding pay transparency has been coming into force, and it will be important for employers to keep in mind that these changes could be coming to their province next, if they have not already been implemented.
In early November 2023, the government of Ontario introduced its Working for Workers Act (Bill 149). If passed, the legislation will amend the Ontario Employment Standards Act (ESA) to include amended sections regarding pay transparency, amongst other changes, all of which can be found here. These amendments regarding pay transparency follow the government’s previous attempts to introduce similar measures. In 2018, the then liberal government introduced the Pay Transparency Act, 2018, (“2018 Act”) which required employers to include the expected pay or range of pay for publicly advertised job postings and would have prohibited employers from asking applicants about their pay history or retaliating against employees for disclosing information about their pay to other employees. The 2018 Act was passed in May 2018, however it never came into force following the change of control in government.
Bill 149 amendments to the ESA
Bill 149 has proposed to mandate certain pay transparency requirements, and other requirements regarding the hiring process. If passed, Bill 149 will require employers who publicly advertise a job posting to include information about the expected compensation or range of compensation for that job. Employers would also be required to disclose whether they use artificial intelligence to screen, assess or select applicants for the position. Employers would be prohibited from including any job requirements related to Canadian work experience. This prohibition on Canadian experience requirements also applies to job application forms. Further, employers would need to keep copies of their publicly advertised job postings for three years after access to the posting by the general public is removed.
Bill 149 is similar to other Canadian provinces’ legislation that have already implemented legislation surrounding pay transparency, including British Columbia, which most recently passed pay transparency legislation as of May 11, 2023. The pay transparency legislation in British Columbia requires that employers not seek information on pay history from most job applicants, and sets out that employers can not prohibit employees from disclosing pay-related information to other employees. In addition, expected pay or pay ranges are required to be included in publicly posted job opportunities. There are also incoming obligations for employers in British Columbia to complete pay transparency reports. Prince Edward Island implemented similar legislation in 2022.
Key takeaways
Given the recent increase in introducing and passing pay transparency legislation, it is very possible that similar changes will be coming in other provinces. This is definitely an area for employers to keep their eyes open for in the coming year, in order to ensure internal processes and job postings are in compliance. Employers should stay informed about upcoming changes to employment law requirements, and talk to an employment lawyer should you have any questions or concerns.
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