Update on British Columbia Pay Transparency Requirements

Beginning on November 1, 2023, in accordance with British Columbia's Pay Transparency Act (the "Act"), employers will be required to specify the expected salary or wage or expected salary or wage range, as well as any other information prescribed by regulation, for any publicly advertised job opportunity.

Purpose of the Act

The purpose of the Act is to address systemic discrimination in the workplace and reduce pay gaps which disproportionately impact women, people of colour, people with disabilities, and non-binary people. Our previous pay transparency bulletin provides context about the general trend towards pay transparency across Canada and in other jurisdictions.

Job Posting Requirements

The requirement to post wage and salary information applies to all employers, including those based outside of British Columbia, who post a publicly available job opportunity that is open to BC residents and that may ever be filled by a BC resident, either in-person or remotely. To comply with the Act, Employers will need to specify either an expected salary or wage (i.e. $20 per hour or $50,000 per year) or an expected salary or wage range (i.e. $20-$30 per hour or $50,000-70,000 per year). A statement that the compensation will be "$20 per hour and up" or "start at $50,000 per year" will not meet the requirements in the Act. At this time, the provincial government has not limited how large the advertised salary or wage range may be; the determination of the range is up to the employer and should reflect the employer's expectation of what the range will be.

There is no requirement for employers to provide additional compensation information regarding bonus pay, overtime pay, tips, or benefits in a publicly advertised job opportunity. Employers do not need to provide salary or wage information for opportunities that are not posted publicly or for general recruitment campaigns not limited to any specific opportunity. 

Reporting Requirements

The Act requires certain employers to prepare annual Pay Transparency Reports available to all employees and the public, including information about differences among prescribed groups of individuals in relation to pay, a description of trends in relation to the differences in pay for the prescribed groups of individuals, the number of reports of the employer's non-compliance with the Act and the nature of those reports, and any other prescribed information. The British Columbia government and the largest provincial Crown corporations are required to publish their first annual pay transparency reports by November 1, 2023. After 2023, private employers will need to prepare their first annual Pay Transparency Report and make it available to all employees and the public as follows:

• By November 1, 2024 if they have 1,000 employees or more in British Columbia;
• By November 1, 2025 if they have 300 employees or more in British Columbia;
• By November 1, 2026 if they have 50 employees or more in British Columbia; and
• By November 1, 2027, if they have less than 49 employees in British Columbia, but more than a number prescribed by regulation.
  
  

The province is currently working on regulations to the Act which are expected to be released later this Fall and which will provide additional clarity about reporting requirements.

Prohibition on Inquiries Regarding Pay History and Retaliation

In addition to posting and reporting obligations, the Act prohibits employers from asking job applicants for information about their pay history, unless the information is publicly available. The Act further prohibits employers from retaliating against employees for:

• Making inquiries to the employer about their pay;
• Disclosing information about their pay to another employee of the employer or to an individual who has applied for employment with the employer;
• Making inquiries to the employer about a Pay Transparency Report or information contained within that Report;
• Asking the employer to comply with the employer's obligations under the Act; or
• Making a report to the Director of Pay Transparency in relation to the employer's compliance with the employer's obligations under the Act.

Impact of the Act

Employers will need to revise their publicly available job advertisements to ensure that the language in the advertisements complies with the requirements of the Act. Employer representatives will need to ensure they are aware of their obligations under the Act, including the prohibition on inquiries regarding pay history and reprisals.

As the Act will make salary or wage information available to employees from the outset, employees may be better able to determine whether the compensation for a specific role is aligned with their expectations. However, the Act does not prohibit employees from negotiating the salary or wage associated with a role, and access to the salary or wage information associated with a position may empower an employee to negotiate higher compensation than they would have otherwise received. Employers will need to be ready for employees to be better equipped to negotiate compensation.

We will continue to update you regarding new obligations related to pay transparency as more details emerge. If you have any questions in the meantime, please do not hesitate to contact the authors or your regular Fasken lawyer.

Please note the following updates to this article:

1. The British Columbia Pay Transparency Act does not apply to federally-regulated employers.
2. The Pay Transparency Regulation, BC Reg 225/2023 (the "Regulation"), has been released and is now in force. The Regulation provides additional information about the required contents of pay transparency reports, including the following guidance.

• The pay transparency report must, at the option of the reporting employer, cover either the most recently completed financial year of the reporting employer, or the calendar year immediately preceding the year in which the pay transparency report is prepared.
• The pay transparency report will need to specify certain information about the reporting employer, including: the name of the reporting employer, the employer's mailing address, the applicable North American Industry Classification System (NAICS) Canada 2022 sector code, the dates on which the reporting period began and ended, and the number of employees of the reporting employer as of January 1st in the year the pay transparency report is prepared, expressed in terms of a specific range.
• Reporting employers will need to collect information about differences in pay in their workplace between employees in different gender categories. The gender categories for the purposes of pay transparency reports are man, woman, non-binary, and unknown. The unknown category is for employees who do not identify as being part of the man, woman, or non-binary categories, employees who do not wish to specify which gender category applies to them, and employees about whom the reporting employer does not have information regarding the applicable gender category.
• Reporting employers will be required to calculate the differences between gender categories for mean and median hourly rates of pay, overtime pay, overtime hours, and bonus pay. The Regulation provides guidance on how to calculate these amounts.
• Reporting employers will need to rank employees from lowest to highest rate of hourly pay and then divide the employees into four equal (or as close to equal as possible) segments. For each of the four segments, the reporting employer will be required to specify the percentage of employees in each gender category.

For more information or to discuss a particular matter, please contact the authors.

About the Authors:

David G. Wong is a Partner and co-leader of the Labour, Employment and Human Rights group, he is also the leader of the firm's national Human Rights practice. His practice includes advice to and representation of organizations in all areas of human rights law as well as in the areas of labour and employment law.

Naya G.K Dhatt is a labour, employment, and human rights lawyer in Fasken's Vancouver office, providing practical and effective legal advice to a broad range of employers.