Murray Murphy and Kate Profit

Changes to Prince Edward Island’s Employment Standards Act (“ESA”) regarding pay transparency received royal assent on November 17, 2021 and has recently come into force as of June 1, 2022.

Pay History

Under these amendments, employers are prevented from seeking pay history information from applicants, whether directly or indirectly. This does not prevent an applicant from voluntarily disclosing their pay history information without prompting from the employer. When such information is provided by an applicant, an employer is entitled to rely on such information when determining pay for the applicant.

Employers are still able to seek information about pay ranges or aggregate pay provided for comparable positions for which the applicant is applying.

Pay Range Information

Employer’s who publicly advertise a job to the general public must include information about the expected pay or pay range for the posted position. “Publicly advertised job positing” is defined as:

an external job posting for a specific job that an employer advertises to the general public in any manner, but for greater certainty does not include recruitment campaigns, general help wanted signs or positions that are only advertised to existing employees of the employer

Anti-Reprisal

The amendments provide safeguards to allow employees to seek information from the employer and share pay information in the workplace without fear of reprisal. Specifically, employers are prevented from intimidating, dismissing, or otherwise penalizing an employee (or threatening to do so) when an employee:

• Makes inquiries about pay or requests information on the employer’s pay policies;
• Discloses pay information to another employee;
• Provides information regarding the employer’s compliance or non-compliance; or
• Asks the employer to comply with pay history, pay transparency, or anti-reprisal provisions.

Application

These changes will apply to all non-unionized workplaces. However, some changes will not apply to those governed by a collective agreement.

Subsection 2(4) of the ESA sets out that only certain provisions of the ESA are applicable to employees whose terms and conditions are established by a collective agreement pursuant to the Labour Act R.S.P.E.I. 1988, Cap. L-1.

Pay transparency provisions span sections 5.8 (pay history), 5.9 (pay range information), and 5.10 (anti-reprisal) of the ESA, however, it is only section 5.10 that will apply to unionized workplaces.

Key Takeaways

Pay transparency amendments will likely result in changes to employer’s hiring practices, including what questions they ask and what information is offered to the applicant. Namely, these changes will require many employers to share pay information (being either expected pay or a pay range) when jobs are posted publicly.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.