Take this job and fill it

Exclusive to Canadian HR Reporter from Rudner Law.

Advertising for a job is about as straightforward as it gets, right? All you need to do is outline the duties, the qualifications, the location, and where necessary, that the company will provide accommodation. The salary could remain unmentioned until the interview process - or even the offer stage.

That was the case for all of Canada until May 2023, when British Columbia enacted its Pay Transparency Act (which came into effect in November). Under this law, an employer must include an expected pay range for all public job postings.

Not to be outdone, in November 2023, the government of Ontario introduced the Working for Workers Four Act, 2023. If enacted this will drastically change the permitted contents of a job advertisement in Ontario.

Hiring and the law

Despite the seeming ease of advertising a job, the hiring process can be full of risk for an employer. The wrong job advertisement may attract the wrong kind of candidate - wasting company resources in screening applications. Asking the wrong questions in a job interview may result in a bad hire, leading to lost productivity and potentially the cost of a dismissal and turnover.

Beyond this is the legal aspect. Criteria in the job advertisement can directly or indirectly screen out applicants based on a protected ground, as can asking improper questions in the interview process. This may expose an employer to a discrimination claim - a prospective employee may assert that the employer’s decision not to hire them was based on information improperly uncovered in the interview.

Until recently, there was nothing in the law that addressed what needed to be included in a job advertisement. This changed with British Columbia’s enactment of the Pay Transparency Act and its requirement to include the pay range. Interestingly, this was not the first piece of legislation in Canada to establish this requirement.

Ontario’s Pay Transparency Act, 2018 and Newfoundland and Labrador’s Pay Equity and Pay Transparency Act each require an employer to include the expected rate of pay or a salary range in any job advertisement.

However, no need to worry if your company is not in compliance with either of these acts: despite both having received Royal Assent in their respective provinces, neither have come into force. British Columbia has the distinction of being the first province to require this degree of transparency.

Changes in the Working for Workers Four Act, 2023

If enacted, this Act will make substantial changes to Ontario’s Employment Standards Act, 2000 (ESA) in terms of what an employer can and must include in a job advertisement.

The changes to the ESA will require disclosure of whether the employer uses artificial intelligence in the hiring process - including for screening, assessing, or selecting a candidate. An employer will also be prohibited from including a requirement in a job advertisement for a candidate to have Canadian experience.

Finally, the ESA will also require that an employer include the expected compensation or the range of expected compensation for the position in any publicly advertised job posting.

This would be the only requirement in Ontario for pay transparency. Unlike British Columbia’s Pay Transparency Act, there is no requirement for reporting rates of pay (read our blog post on BC’s act here), only disclosure in advertisements.

The amount of detail in terms of compensation that needs to be disclosed is not clear. As this currently reads, an employer could comply with the letter of the law but not the spirit. An employer only required to disclose the expected pay range could indicate that the position pays somewhere between $30,000.00 and $300,000.00 annually.

This would both comply with the law but also defeat the purpose. This could be addressed in regulations or revisions to the Act itself. For the moment, the Act remains in committee - and the final language could be different from what is available for public review.

Takeaways for HR on pay transparency

The ESA is meant to provide a basic floor of protection and assistance for employees in Ontario, and to set the rules for employee and employer interactions. The expansion of the ESA to cover the content of job advertisements is a move by the government of Ontario towards extending this not only to an employee but also to a prospective employee.

Whether this will represent a material change in the way business is done in Ontario or just window dressing remains to be seen.

For the moment, it remains in an employer’s interests to act in compliance with the existing law - and to consider how it will prepare itself for these future changes.

Geoffrey Lowe is an associate at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].