Among the many changes brought on by Ontario’s Fair Workplaces, Better Jobs Act, 2017 (formerly Bill 148), perhaps the most confusing section is the expansion of the equal pay for equal work provisions, which come into force April 1, 2018. The Employment Standards Act, 2000 (ESA) has long prohibited pay discrimination based on sex, but substantial additions to the part now further prohibit pay discrimination based on employment status.
Navigating the equal pay for equal work requirements can be difficult because there is so much room for interpretation. ‘Equal work’ is far from a straightforward concept, and even ‘equal pay’ isn’t as obvious as it seems. That said, there are some definite best practices employers can follow, and as always, one should err on the side of caution—it’s better to go too far upholding the law than to fall short.
Employees want to feel valued by their employer, and want to know that they’re being treated fairly. Formerly, an employer could draft an employment contract that prohibits employees from discussing their compensation with one another (as long as the contractual provision carved out an exception for unionization activities), but the ESA’s protections against reprisal now cover compensation discussions relating to the equal pay provisions. Although many people feel uncomfortable talking about their compensation, these conversations will still happen, and are now broadly protected by the ESA, so ignoring pay inequities is not a viable strategy.
Pay discrimination can arise from many causes, some of them completely inadvertent. Most employers would not intentionally discriminate against an employee, but when compensation is assessed for different employees at different times—and even by different people—unequal pay will sometimes be the result. In addition, when pay is provided at an hourly rate, people who are on contract or who work part-time are often paid less even if they do essentially the same job as full-time, permanent employees. Why the pay inequity arose in the first place is less important, though, than whether it can still be justified.
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