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Employment & Labour, Mediation

Pay transparency bill introduces conflict in provincial laws

Proposed legislation intended to bridge the pay gap for women could prove challenging for recruiters as well as employers, Toronto employment mediator and arbitrator Barry B. Fisher tells AdvocateDaily.com.

Bill 203, the Pay Transparency Act, has three main objectives: to disclose salary ranges for advertised jobs, restrict employers from asking candidates their previous salaries, and require large employers to track and report compensation gaps, explains Fisher, principal of Barry Fisher Arbitration & Mediation.

Part of the rationale behind the initiative forcing employers to include salary ranges in job postings is to prevent them from low-balling salary offers for female applicants, he says.

Employers and recruiters would also be prohibited from asking about compensation history, Fisher says.

“The entire purpose behind this Act is that women traditionally make less than men and by disclosing their lower salary — therefore encouraging employers to offer just a little bit more than their past, historically low, wages — it will perpetuate pay inequities,” he says.

“That’s the entire purpose behind this Act. It perpetuates the wage gap.”

The Globe and Mail reports that the government expects to spend up to $50 million over the next three years on the initiative.

According to the provincial government, women earn about 30 per cent less than men and the gender wage gap has been stagnant during the past decade.

Fisher sees some potential problems in the proposed legislation, particularly for recruiters.

Ontario’s so-called Sunshine List annually reveals the names and earnings of public service employees who made more than $100,000 during the previous calendar year. There is no indication of that coming to an end even though the new legislation is aimed to protect information around individual earnings.

“We now have a complete contradiction between two provincial laws: One that protects people from being forced to disclose their salaries to current employers, but if you are working for the public sector, you are forced to publicly disclose it,” he says.

There is an exemption to posting the salary range for internal government listings, general help-wanted signs or “recruitment campaigns.” But Fisher can find no definition for recruitment campaigns, nor can he find reference to the use of that term in previous legislation.

“That’s going to create confusion until people figure out what it means,” he says.

The pay transparency bill seems to exclude the ability to sue over breaches, but the legislation puts the burden of proof on the employer, he adds. That means if the employer is accused of demanding a salary history, they will be forced to defend themselves, Fisher says.

“That’s a nightmare for employers,” he says. “How do you prove that?”

But Fisher emphasizes that, at this point, the legislation is proposed and has only passed the first reading. With a provincial election around the corner, it may well die on the order table.

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