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New Ontario’s Pay Transparency Act in Effect January 2019

Whitten and Lublin | Jun 14, 2018

Ontario’s Pay Transparency Act, 2018 will become effective on January 1, 2019.  The law will apply to all provincially-regulated employers in Ontario and create the following new rules:

  • All employers’ publicly advertised job postings must include a salary rate or range.  “Publicly advertised job posting” means an external job posting for a specific job that the employer advertises to the general public in any manner, with the exception of recruitment campaigns, general “help wanted” signs, and/or positions that are only advertised to existing employees.  Under this rule, job postings on Internet sites like Indeed or Kijiji would be considered “publicly advertised” and therefore must include a salary rate or range.
  • Employers are barred from asking job candidates about their past compensation.  This prohibition applies to employers’ own questions as well as questions by the employer’s agents (e.g. recruiters and staffing agencies).  However, employers and their agents are permitted to seek information about the ranges of compensation provided for positions comparable to the position for which a job candidate is applying.  Additionally, candidates may voluntarily disclose compensation history to an employer or its agent, and employers are permitted to rely on such information in determining compensation for that candidate.
  • Employers are barred from reprising against employees for complying with the Pay Transparency Act, 2018.  In particular, employers are prohibited from intimidating, dismissing or otherwise penalizing employees for making inquiries about their compensation, disclosing their compensation to other employees, asking their employer to comply with the Pay Transparency Act, 2018 and/or making inquiries about or providing information for a Pay Transparency Report, which are discussed further below.  Employees who are penalized for any of these protected actions may file a complaint against their employer with the Ontario Labour Relations Board.  When assessing the merits of such complaints, the Ontario Labour Relations Board will apply a reverse onus of proof – it will be up to the employer to prove that it did not reprise against any employees to avoid liability.
  • In the coming years, employers will be required to prepare and submit annual Pay Transparency Reports.  The Pay Transparency Report must include information about the employer, the employer’s workforce composition, and differences in compensation in the employer’s workforce with respect to gender and other prescribed characteristics.  The contents of the annual Pay Transparency Reports will be prescribed in regulations to the Pay Transparency Act, 2018, which have yet to be determined.  Consultations on the development of the regulations will be subject to direction from the new provincial government.

The deadlines for employers to submit their first Pay Transparency Reports are May 15, 2020 (for employers with 250 or more employees) and May 15, 2021 (for employers with 100-249 employees).  Employers with less than 100 employees are not required to submit a Pay Transparency Report at this time.

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