Canadian HR Reporter

CANADIAN HR REPORTER APRIL 2018 10 NEWS initial announcement, according to Amanda Boyce, an associate at Stringer Management Lawyers in Toronto, especially when it comes to the requirements around data collection and reporting, and publicizing compensation. Stubborn wage gap While there had been equal pay for equal work provisions in the employment standards and hu- man rights legislation since the 1960s, it was rare to have a clear comparison between a female and a male employee, so when the Pay Equity Act came into force, it was a big step, said Jordan Kirkness, senior associate at Baker McKen- zie in Toronto. But now it's out of date, he said, and the government's proactive approach makes sense. "Oftentimes, it is much more effective, I think, to ask employers to demonstrate that they have the policies and procedures to do that, as opposed to going after them randomly or even on a complaint- based basis to see about whether they have complied." ere certainly remains a stub- born wage gap between the sexes, ranging from 12 to 30 per cent, depending on the workplace, said Talbot. "e purpose of pay equity is to redress gender discrimination and compensation for work that's usually done by women compared to work that's usually done by men. e Pay Equity Act does not address the concept of equal pay for equal work... so it has limited impact and, honestly, limited ap- plication to the concept of equal pay for equal work." And while the Employment Standards Act (ESA) has provi- sions to ensure employees receive equal pay for performing essential- ly the same job, these haven't been effective in closing the wage gap. "We've seen this wage gap re- ally not move for a good decade now," she said. "ere's probably not been sufficient attention paid to the enforcement of those provi- sions, or really the true meaning behind those provisions." Job postings With Bill 203, employers would have to include information about the expected compensation, or the range of expected compen- sation, for a position in external job postings. And by compensa- tion, the government means "all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount." at's really broad — broader than public sector restraint legislation, as it goes beyond bonuses and salaries to include benefits and, presumably, pensions, said Kirkness. "at's going to be significant because every time you have a vacancy that you're trying to fill, you're going have to do some level of analysis," he said. "Most employers, what they will do is they'll have an idea and it's usu- ally based on what the previous person was paid (and the) types of candidates, and then they make a very individual assessment, af- ter they know who's in the pool, about what they'd be willing to pay for each individual. And that is inherently biased… you have a problem with subjective elements creeping into the analysis there." "By requiring employers to do it before they post the job, I think you're going to see more objec- tive analysis." Compensation could include commissions and bonuses if they are fixed or "ascertainable," but the salary ranges can still be broad, as long as they're not attributable to gender, said Talbot. "ose salary ranges can ex- ist because of seniority, merit, commissions, output that can be tracked. ose broad salary ranges simply can't be a result of gender distinctions or employ- ment status." But there are many legitimate reasons why organizations do not publicly advertise compensation information in job postings, es- pecially for higher-level and ex- ecutive roles, said Boyce. And if a salary range is too broad, it can be meaningless. "A lot of companies pay their employees using commission and bonus structures and I think that the structures of those com- mission and bonus plans are highly confidential, and for good reason. It's because they give… employers a competitive advan- tage," she said. Job questions As part of the new act, employers would not be allowed to ask a job applicant about his compensation history. However, a job candidate would be allowed to voluntarily disclose this information, and if he did so, the employer would not be prohibited "from considering or relying on such information in determining compensation." is change shouldn't be too contentious, said Boyce. "It doesn't stop you from asking a candidate what are their salary ex- pectations, for example — it does seem to be focused on history." But a lot of employers, when it comes to setting compensa- tion for new recruits, use as their baseline the information they ob- tain from the leading candidate about her current compensation, said Talbot. "en, they'll offer something that's an increase in order to re- cruit the person," she said. "Cer- tainly there are a lot of roles for which market comp analyses are done, but for a number of roles, really, the starting point for many employers is to find out what the person is currently making." Transparency reports Employers would also be required to prepare a pay transparency re- port that contains information re- lating to the employer, workforce composition and differences in compensation in the workforce with respect to gender and other prescribed characteristics. is report would have to be posted online or in "at least one conspicuous place in every work- place of the employer," and the Ministry of Labour could end up publishing or making this report available to the public. "ere's a risk it's going to be very public information, and that's significant to employers because it really increases exposure," said Kirkness. e intended impact is to pro- mote accountability with a view to reducing compensation gaps, said Talbot."We've seen in other countries a reduction in gender compensation gaps with the in- troduction of similar legislation requiring employers to track and report," she said, citing as exam- ples Germany and Australia. "It does have an impact." But when it comes to collecting the data, it's unclear how this will be useful, said Boyce. "How is it going to account for things like differences in roles, re- sponsibilities, tenure — you know, how long has someone been with an organization?" Even the ESA recognizes that people are paid different rates and that's OK when they have differ- ent levels of seniority, perform dif- ferent kinds of work, or their work requires different levels of skill or effort or responsibility, she said. "ey want these employers to collect this pay discrepancy data, but will it account for those fac- tors and, if so, how? When we get into these pay discrepancy discus- sions, even social scientists and data scientists have trouble con- trolling for these variables." Anti-reprisal rules Bill 203 also contains anti-reprisal rules, meaning employers could not penalize an employee who comes forward to ask about his compensation or discloses his compensation to another worker. Many employers have confi- dentiality provisions in standard form employment contracts or confidentiality policies that pro- hibit employees from disclosing their compensation or discussing compensation matters, internally or externally, said Talbot. "e legislation will prohibit employers, effectively, from enforcing those provisions to the extent that they are pre-existing," she said. "(Employers) will have to both update their standard form contracts and policies on a going- forward basis to the extent that they provide for that type of prohibition and to the extent they have existing contracts in place. They don't necessarily need to open those up but the anti-reprisal protections will then mean that they wouldn't be in a position to enforce any confidentiality provisions relating to compensation." But under the employment standards, there can be no reprisal against an employee who asks an- other about her compensation to determine if people are being paid indiscriminately by sex, said Boyce. "You cannot be disciplined for that," she said. "It very closely mirrors what I've already seen added to the ESA via Bill 148 (Ontario's Fair Workplaces, Bet- ter Jobs Act)." But it's important to have this rule, said Kirkness. "Females need to be able to raise compliance issues without fear of losing their job or being disadvantaged, or they just won't do it. Because who's going to stick their neck out when you might lose your job or might not get a promotion? So that's really impor- tant and I think I think it is a key element that needs to be imple- mented in pay equity." e new measures would begin with the Ontario public service and then apply to employers with more than 500 employees, and later, employers with more than 250 employees, said the govern- ment's announcement. corporate brand in terms of the professionalism such a move would portray to customers and staff alike, she said. e size, breed and age of dog allowed at the office may need to be written into policy, said Jacques. "Is an office the appropriate place to train a puppy? ese are all things that people probably don't think about when they think about bringing their pets to work." Dogs would need to go through a test to ensure they fit, said McPhee. "We have person-organization fit, and now we have dog-organi- zation fit." Prior to the implementation of any policy, staff should be sur- veyed to discover potential aller- gies or religious reasoning that would prevent their interaction with pets, said McPhee. "You really need to find out how people really feel about this in general." And even if a positive result is found, employers would be ad- vised to start small — offering a subsidy for doggy daycare or dog walkers, for example — as they would never want to relinquish a benefit after offering it, she said. An on-site doggy daycare could also be an option offered prior to bringing pets directly into the of- fice, said McPhee, noting flex ben- efits could be on the table if a pet subsidy is the preferred approach. "If you're actually allowing them to bring the pet in, where do you stop?" "It's the whole thing about equi- ty. People want to be treated fairly. How do you equate it?" she said. "If I'm going to have pet-friendly policies, do I have one that ad- dresses elder care and child care?" "I see lots of problems." Legal concerns While pressure may be mounting in terms of recruitment and reten- tion policies, there is no obligation for an employer to introduce a pet- friendly work policy, said omas Gorsky, an employment lawyer at Sherrard Kuzz in Toronto. If there was pressure from a large swath of employees, an em- ployer could feel a "moral obliga- tion" to implement one, but prior consultation with the entire work- force would be advisable to ensure there are no allergies or psycho- logical phobias present, he said. An employee's medical issues would take precedence over an optional policy, said Gorsky. "If there was no way to segre- gate the animal to address that particular individual's sensitiv- ity, while there is no precedent, I think the legal conclusion that you would draw would be pretty clear that you would need to ac- commodate the employee who has a sensitivity, as opposed to a majority-rules type of approach," he said. "If an individual was adamant that they had an allergy to a cat or a dog, and that it would cause sig- nificant medical problems, I don't think I would push that further in terms of trying to get medical documentation for that." Nervousness of pets alone would "fall short of something that needed to be accommodated legally," and would then come down to an employer decision, said Gorsky. Still, contemporary workplac- es are leaning towards "friendly" workplaces that offer a variety of perks for millennial employees, including games and entertain- ment, he said. "I could certainly see a pet- friendly workplace being an ex- tension of that ethos." PAY RULES < pg. 1 PAWTERNITY < pg. 9 Compensation reports could be publicized Medical accommodation trumps pet preference "We've seen in other countries a reduction in gender compensation gaps with similar legislation requiring employers to track and report."

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