Canadian HR Reporter

CANADIAN HR REPORTER APRIL 2018 12 NEWS the real work begins, he said — what's the basis for the difference? If there is a difference, then they have to assess whether or not that test is met. If it is, they're supposed to adjust the pay rate, he said. "If it isn't, then the way the act is now structured is the employer would be responding and saying, 'We're not and, basically, here's why.' And that could be either 'It's not the same work,' or sufficiently the same, or 'It is the same but here's why you get paid less than they get paid, and we think that satisfies the exceptions.'" Expect requests Employers should review their current workforce in Ontario to determine if any employees at any of their establishments are performing substantially the same kind of work requiring substantially the same skill, effort and responsibility under similar working conditions and are being paid different rates, said Cunningham. If yes, they should look for any exceptions — such as a seniority system or merit system — and if there are none, consider increas- ing pay rates before a wage review request to ensure employees are being paid equally, regardless of their employment status. Employers should also be ready for part-time or casual employees asking to have their rate of pay reviewed, he said. In anticipation of that, employers should carefully document per- formance management and em- ployee evaluations. "A lot of this is just another re- minder for employers of the im- portance of following best practic- es when it comes to performance management," said Cunningham. "If an individual who's being paid less has a two out of four instead of a three out of four (in their evaluation), well… you're go- ing to use that as your answer for why there's a difference it pay. It doesn't have to do with full-time versus part-time, it has to do with 'ere's your evidence for the dif- ferentiation based on a quality of work issue.'" An employer may have a job performance system to assess how people meet their goals, and if a part-time employee doesn't do as well as a full-time employee, that could justify a different sal- ary, said Vachon. "What will be important for employers is to document that, and have a formal system where they can establish that it's being done in a rational fashion." It will be important to set ex- pectations for employees, and when delivering the job evalu- ation results, emphasize why a person may not get a full merit increase, she said, "so you can then prove why the employee is actu- ally paid less." Job posting concerns Employers should also be care- ful in drafting job postings and job descriptions, as these can be used later on to justify differ- ences in employee pay rates, said Cunningham. "If all (the employer has) done is copy and paste a full-time general labourer position and changed 'full-time' to 'part-time,' you're creating a document that's consistent with the employee be- ing able to prove the first part of the test." Often, the job posting or de- scription is what's used to evaluate a job, said Vachon, "so you have to capture those differences right off the bat because if you don't cap- ture them, you'll evaluate the job, and they'll look the same." However, in looking at old cas- es involving equal pay for equal work, the test isn't really the job posting, said Broad. "Clearly that won't help you if the job postings are identical — that's going to be hard to turn around and say, 'No.' But cases do say it really is (about) looking at what people are doing, so what are the core duties of the job, and that's what tests focus on," he said. "You always want your job posting to be accurate but that's not going to be a defence if a per- son is actually doing potentially the same work and passes all those tests." Set up standardized procedure Hopefully employers are already identifying those areas where there are differences in the rates of pay, to at least see if these provisions may be engaged, said Broad. "Internally, they should have a process set up so when requests come in, they get funneled appro- priately to HR who can then look at it and then deal with it the way the act requires. at's key, being ready for it — because there will be requests." In anticipation of employee wage review requests, employers should also determine standard- ized procedures for how they'll be handled and how decisions will be communicated, said Cunningham. ere should be a person in hu- man resources designated to deal with this, along with a standard form people have to fill out to very clearly figure out what it is they're asking and what the comparison is, he said. "Maybe they don't even have a right, so you want to have a standardized process… for how the request comes in so you can then process it in a manner that (figures out)… does it even engage the provisions of the act?" said Cunningham. "(It's about) going through in a logical manner (so) before you respond to the employee, you've investigated the potential rel- evant factors." EQUAL PAY < pg. 3 'Being ready is key – there will be requests'

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