British Columbia’s Pay Transparency Act (the Act) was passed on May 11, 2023. The Act imposes specific limitations on employers in the hiring process, in relation to responding to employee discussions on pay and pay reporting obligations. The Act also creates the role of Director of Pay Transparency.

The key obligations and their effective dates are:

• Effective Immediately – Pay Transparency Discussions: Employers are prohibited from asking job applicants about their previous pay rate and from disciplining or otherwise adversely impacting an employee who asks about their pay, reveals their pay to another employee or job applicant, or makes inquiries/complaints about pay transparency reports. 
• Effective November 1, 2023 – Job Posting Requirements: Publicly advertised job postings for specific positions must include the expected pay or pay range for the position.
• Effective November 1, 2023*, 2024, 2025, 2026 - Pay Transparency Reports: Applicable employers must complete and post pay transparency reports, which will be published annually on June 1 by the Ministry of Finance.

* The only employers currently subject to this obligation include the government and specified Crown corporations. Other employers will be included based on size in the coming years.

Pay transparency discussions

Section 4 of the Act prohibits employers from seeking pay history information about a job applicant by “any means” (including directly from the job applicant or from a third party), unless that pay history information is publicly accessible.

Employers are still permitted to use pay history they already have about an employee, and to rely on publicly accessible information on the pay for similar positions.

Employers in BC are also prohibited from dismissing, suspending, demoting, disciplining, harassing or otherwise disadvantaging an employee (or threatening to do so) because the employee:

• Asked the employer about their pay;
• Disclosed information about their pay to another employee or job applicant;
• Asked the employer about a pay transparency report or information in the report;
• Asked the employer to comply with its obligations under the Act; or
• Made a report to the Director of Pay Transparency in relation not the employer’s compliance with its obligations under the Act.

Job posting requirements

Effective November 1, 2023, all employers in BC are required to include salary or wage information on all publicly advertised job postings.

What types of job postings are subject to this requirement?

If the job posting is general (i.e., a general recruitment campaign or ‘help wanted’ poster) or the posting is not publicly posted, then it is not captured by this requirement.

Job postings made by the employer directly, and by any third parties on behalf of the employer, on any public recruitment platform (job forums, websites, etc.) are subject to this requirement.

This requirement will apply to job postings in non-BC jurisdictions, if the position is open to BC residents and may be filled (in-person or remotely) by someone living in BC.

What has to be included?

Wage or salary information means the employer’s “reasonable expectation of pay for the job at the time of posting.” Employers are not required to include bonus pay, overtime pay, tips or benefits on job postings; however, the expected wage or salary (or expected wage or salary range) must be included.

The government has confirmed that this does not prevent job applicants from negotiating a higher wage or salary than what is advertised (impliedly, employers should not be attempting to negotiate a lower wage or salary than what was publicly advertised).

If the posting includes a wage or salary range, it must not include an unspecified minimum or maximum amount (for example, “the salary range for this position is $40,000-$60,000” is compliant, but “the salary range for this position is up to $60,000” or “starts at $40,000” is non-compliant).

There is no currently no restriction on the size of range that can be included, although the Government has indicated it may introduce requirements on maximum advertised ranges in the future.

Pay transparency reports

We expect much more guidance about this requirement to be issued in late 2023, after the first set of employers subject to the requirements have completed the reporting process.

In terms of roll-out, the requirement is staged over four years, as follows:

At this time, we understand the above numbers apply to employees in British Columbia, not the entire organization, although there is not specific confirmation of that by the government. It is clear that the requirements for pay reporting are only applicable to an organization’s employees in British Columbia.

The government has confirmed it will be releasing an online reporting tool, along with detailed guidance as to what should be included in the report, following the completion of the first round of reporting requirements in fall 2023.

In fall 2024, the Gender Equity Office will also solicit employer feedback to ensure the reporting tool is working effectively for employers. Based on the tone used in the government’s published guidance, we anticipate the requirements in this area will be continually updated over the coming months or years, and that initial compliance efforts will be driven by education, not enforcement.

Employers may wish to familiarize themselves with the Gender and Sex Data Standard, which will inform the information employers will be asked to collect. Employees will be permitted to voluntarily update the information annually (in accordance with privacy considerations, employees can decline to give gender information to their employer).

The Pay Transparency Report will be required to include the pay gap as the difference between total compensation between men, women and non-binary people, and potentially will also include the percentage of each gender in quartiles. Real wage data such as dollar amounts is not expected to be reported. The Pay Transparency Report must be posted on the employer’s website.

Enforcement

The Act does not currently set out penalties for non-compliant employers and there are no enforcement mechanisms in the Act. Section 12 of the Act specifically confirms that section 5 of the Offence Act does not apply to the Act or any regulations.

However, the Act does create the new role of “Director of Pay Transparency,” whose responsibilities include supporting employers in complying with their obligations under the Act, and receiving reports of non-compliance. We anticipate that role will be focused on achieving compliance and, eventually, enforcement of the Act.

Despite the lack of enforcement provisions under the Act, there are existing pay equity protections for employees under section 12 of the Human Rights Code, which prohibits employers from discriminating in wages between similarly positioned employees on the basis of sex. This places the onus on employees to initiate a complaints process with the BC Human Rights Tribunal in order to address concerns with respect to wage discrimination.

Summary

Employers should comply with the new obligations under the Act, and anticipate that non-compliance in pay inequities can and will be enforced under the human rights regime.

Employers should take steps to confirm that they are compliant with pay transparency and pay equity requirements, along with best practices, as we anticipate this area will be subject to increased scrutiny – and enforcement – in the coming years.

For more information on this topic, please contact the authors, Eleni Kassaris, Victoria Merritt, and Rachel Au or any member of our employment and labour group in Vancouver.