Bill 24 - Pay Transparency Act

BILL 24

Pay Transparency Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“bonus” includes a cash bonus, stock option, security and commission. (prime)

“Bureau” means Bureau as defined in the Pay Equity Act, 2009. (Bureau)

“compensation” means any salary or remuneration, including wages, bonuses, overtime bonuses, commissions, benefits, employer contributions and severance pay that is paid, payable or offered, directly or indirectly, to or for the benefit of an employee. (rémunération)

“employee” means employee as defined in the Employment Standards Act. (salarié)

“employer” means, unless the context otherwise requires, employer as defined in the Employment Standards Act and includes a person that, directly or indirectly, has control or direction of or is responsible for the employment of a person in or about the person’s private home. (employeur)

“equity group” means a group of (groupe en quête d’équité)

(a) women,

(b) gender diverse people,

(d) Indigenous people,

(e) Black people,

(f) racialized people,

(g) persons with disabilities, or

(h) any other persons prescribed by regulation.

“Minister” means the member of the Executive Council assigned responsibility for the administration of this Act. (ministre)

“reporting employer” means an employer of 50 employees or more, calculated as an average for each calendar year. (employeur déclarant)

Purpose

2 The purposes of this Act are

(a) to eliminate systemic wage disparities,

(b) to promote the elimination of gender bias and other biases in hiring, promotion, employment status and compensation practices,

(c) to ensure employers provide clear and accurate compensation information in job postings and annual pay transparency reports,

(d) to protect employees from reprisals when discussing or inquiring about compensation,

(e) to ensure employees have access to the necessary compensation information to exercise existing legal rights,

(f) to support equity, diversity, inclusion and reconciliation in workplaces,

(g) to require employers to demonstrate compliance with equal pay and human rights obligations, and

(h) to encourage open dialogue, accountability and equitable compensation practices.

Application

3( 1) All employers and employees whose relations are subject to the legislative authority of the Legislature are bound by this Act, despite that the work or services may be performed in whole or in part outside New Brunswick.

3( 2) This Act binds the Crown in right of the Province.

3( 3) This Act applies despite any agreement to the contrary between an employer and an employee.

Confidentiality of information

4( 1) Subject to subsection (2), all information acquired by any person in relation to any other person or matter under this Act or the regulations is confidential to the extent that its release would tend to reveal personal information about a person identifiable from the release of the information.

4( 2) A person may collect, use or disclose information, including personal information, only in accordance with this Act and the regulations.

4( 3) With respect to records to which the Right to Information and Protection of Privacy Act applies, if this Act is inconsistent with or in conflict with a provision of the Right to Information and Protection of Privacy Act, this Act prevails.

Requirements of employers

5( 1) An employer shall include in any new publicly advertised or internal job posting

(a) the expected hourly wage or salary for the job, or

(b) the expected hourly wage range or salary range for the job.

5( 2) An employer shall not

(a) seek compensation history from an applicant for employment by any means, whether directly from the applicant or through a third party, unless the compensation history information is publicly accessible, or

(b) rely on compensation history if the information is voluntarily disclosed.

Pay transparency report

6 A reporting employer shall prepare an annual pay transparency report for each calendar year on a form provided by the Minister.

Collection of employee information

7( 1) For the purposes of preparing a pay transparency report, a reporting employer shall

(a) during the first calendar year in which the reporting employer is required to prepare a pay transparency report, make reasonable efforts to collect the information prescribed by regulation from each employee of the reporting employer,

(b) at the time an individual becomes an employee of the reporting employer, make reasonable efforts to collect the information prescribed by regulation from that individual, and

(c) at least once in every calendar year, provide to each employee of the reporting employer the opportunity to provide the information prescribed by regulation or to update or make additions to the information prescribed by regulation.

7( 2) When collecting information from an employee, a reporting employer shall collect the information in the manner prescribed by regulation and inform the employee in advance that the employee’s disclosure of the information is voluntary.

Filing, retention and publishing of pay transparency report

8( 1) A reporting employer shall file an annual pay transparency report with the Bureau

(a) in the case of an employer as defined in the Public Service Labour Relations Act, on or before March 31, 2028, and on or before March 31 of each subsequent year,

(b) in the case of a reporting employer of 100 employees or more, on or before March 31, 2029, and on or before March 31 of each subsequent year, and

(c) in the case of a reporting employer of 50 to 99 employees, on or before March 31, 2030, and on or before March 31 of each subsequent year.

8( 2) The annual pay transparency report filed during a given calendar year shall pertain to the previous calendar year.

8( 3) As soon as the circumstances permit after filing a pay transparency report with the Bureau, a reporting employer shall make the report accessible by publishing it on a publicly accessible website maintained by or on behalf of the employer.

8( 4) If a reporting employer does not have a publicly accessible website, the reporting employer shall, as soon as the circumstances permit after filing a pay transparency report with the Bureau

(a) make a copy of the report accessible to employees of the reporting employer in at least one conspicuous place in each workplace of the reporting employer, and

(b) make a copy of the report accessible to any member of the public on request.

8( 5) A pay transparency report shall continue to be made accessible until the reporting employer makes a new pay transparency report accessible.

8( 6) A reporting employer shall retain a copy of each pay transparency report filed with the Bureau for at least five years.

Report by Bureau

9 The Bureau shall publish on or before September 30, 2028, and on or before September 30 of each subsequent year, aggregated information from the annual pay transparency reports for the previous calendar year, including

(a) differences among equity groups in relation to compensation,

(b) a description of trends related to the differences,

(d) any other information prescribed by regulation.

Prohibitions on employers

10( 1) An employer shall not dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or threaten to do so, because the employee

(a) discussed compensation, or

(b) exercised a right under this Act.

10( 2) An employer shall not enter into, or attempt to enter into, a non-disclosure agreement with an employee restricting discussions with respect to compensation.

Inspectors

11( 1) The Minister may appoint or designate inspectors for the purpose of this Act.

11( 2) The Minister shall issue to every inspector a certificate of appointment or designation.

11( 3) An inspector, in the execution of the inspector’s duties under this Act or the regulations, shall produce the certificate on request.

Powers of inspectors

12( 1) An inspector may carry out any inspection or examination reasonably required to determine compliance with this Act and the regulations and shall perform any other duties or exercise any other powers imposed or conferred on an inspector under the regulations.

12( 2) For the purposes of subsection (1), an inspector may, at any reasonable time, inspect

(a) any land or building, structure or premises that is subject to this Act or the regulations, or

(b) any other premises or place that the inspector has reasonable grounds to believe that records or other things relevant to the administration or enforcement of this Act or the regulations are kept.

12( 3) Despite subsection (2), an inspector shall not enter a private dwelling unless the inspector

(a) is entering with the consent of a person who appears to be an adult and an occupant of the dwelling, or

(b) has obtained an entry warrant under the Entry Warrants Act.

12( 4) The person who is in charge of the premises or place being inspected or who has custody or control of the relevant records or other things shall

(a) produce or make available to the inspector all records and other things that the inspector requires for the inspection,

(b) provide any assistance or additional information, including personal information, that the inspector reasonably requires to perform the inspection, and

12( 5) To inspect records that are maintained electronically at the premises or place being inspected, an inspector may require the person in charge of the premises or place or having custody or control of the relevant records to produce the records in the form of a printout or to produce them in an electronically readable format.

12( 6) An inspector may use equipment at the premises or place being inspected to make copies of relevant records and may remove copies from the premises or place for further examination.

12( 7) An inspector who is not able to make copies of records being inspected may remove the records from the premises or place.

12( 8) An inspector who removes records under subsection (7) shall give a receipt for the items and return them as soon as the circumstances permit after the making of copies or extracts.

Obstruction of inspector

13( 1) No person shall obstruct, interfere with or fail to cooperate with an inspector who is carrying out, or attempting to carry out, an inspection under this Act.

13( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be obstructing or interfering with an inspector within the meaning of subsection (1), except if an entry warrant has been obtained.

Inspector’s notice of contravention

14 If an inspector finds that a person has contravened or failed to comply with a provision of this Act or the regulations, the inspector shall make a finding in writing that includes any relevant information and shall give the person a notice in accordance with the regulations that sets out

(a) the contravention or the failure to comply, and

(b) the time within which the contravention or the failure to comply is required to be remedied.

Inspector’s order

15( 1) If a person has received a notice under section 14 and has not remedied the contravention or the failure to comply within the time set out in the notice, the inspector may make an order requiring the person to remedy the contravention or failure to comply within the time specified in the order or to take any step specified in the order within the time specified in the order to ensure that the contravention or the failure to comply does not continue or reoccur.

15( 2) An order remains in effect until the inspector is satisfied that the order has been complied with.

15( 3) The Minister may review a decision of an inspector not to make an order and may confirm the inspector’s decision or direct the inspector to make an order.

Administrative penalties

16( 1) If the Minister is of the opinion that a person has failed to comply with an order under section 15 within the time set out in the order, the Minister may issue a notice in writing imposing on the person an administrative penalty established by regulation to be paid to the Minister of Finance and Treasury Board within the time prescribed by regulation.

16( 2) A person referred to in subsection (1) who pays an administrative penalty shall be deemed to have contravened the provision of this Act or the regulations in respect of which the payment was made and shall not be charged with an offence in respect of the same incident that gave rise to the administrative penalty unless the incident continues after the penalty is paid.

16( 3) If a person referred to in subsection (1) does not pay an administrative penalty within the time prescribed by regulation, the person may be charged with an offence under this Act or the regulations in respect of the same incident that gave rise to the administrative penalty.

16( 4) Subject to subsection (3), a person charged with an offence under this Act or the regulations is not liable to an administrative penalty in respect of the same incident that gave rise to the charge.

16( 5) The Crown in right of the Province may sue for and recover the amount payable as an administrative penalty in an action in any court as if the amount were a debt.

16( 6) The Crown in right of the Province may use any amount paid as an administrative penalty for any purpose under this Act.

Review

17( 1) A person named in an order under section 15 may request, in accordance with the regulations, that the Minister conduct a review of the order.

17( 2) The Minister shall conduct a review in accordance with the procedure established by regulation and may confirm, vary or revoke the order.

Appeal

18 A person who is directly affected by a decision of the Minister under section 17 may appeal the decision, in accordance with the regulations, to the entity established or designated, as the case may be, by regulation as being responsible for hearing appeals.

Offences

19( 1) A person commits an offence who

(a) violates or fails to comply with subsection 5(1) or (2), 10(1) or (2) or 13(1),

(b) fails to prepare and keep records in accordance with this Act or the regulations or to make those records available for inspection or examination,

(c) knowingly makes a false or misleading statement in a record or report submitted or required under this Act or the regulations, or

(d) knowingly makes a false or misleading statement to the Minister or an inspector acting under the authority of this Act or the regulations.

19( 2) A person who violates or fails to comply with any provision of the regulations commits an offence.

19( 3) For the purpose of Part 2 of the Provincial Offences Procedure Act, a person who violates or fails to comply with a provision of this Act or the regulations in respect of which a category has been prescribed by regulation commits an offence of the category prescribed by regulation.

19( 4) If an offence under the Act or the regulations continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

Review of Act

20 On or before March 31, 2031, and every five years after that, the Minister shall undertake a review of this Act.

Administration

21 The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

Regulations

22( 1) The Lieutenant-Governor in Council may make regulations

(a) prescribing persons for the purposes of paragraph (h) of the definition “equity group” in section 1;

(b) respecting pay transparency reports, including information to be included in the report, calculations with respect to the information and requirements with respect to the accessibility of the report;

(d) prescribing information to publish for the purposes of paragraph 9(d);

(e) respecting the collection and preparation of information and records for the purposes of this Act;

(f) respecting the use, retention and disposal of information and records for the purposes of this Act;

(g) respecting the disclosure of information and records for the purposes of this Act;

(h) prescribing duties imposed and powers conferred on inspectors;

(i) respecting the procedures to be followed to give a notice of contravention under section 14;

(j) respecting administrative penalties, including

( i) prescribing provisions of this Act or the regulations for which a notice of administrative penalty may be issued,

( ii) prescribing or determining the amounts that may be imposed as administrative penalties, including minimum and maximum amounts, and prescribing the terms of payment,

( iii) prescribing the time for paying and manner of paying an administrative penalty,

( iv) prescribing the form of a notice of administrative penalty and its content, and

( v) varying the amount referred to in subparagraph (ii) according to the nature or frequency of the contravention or failure to comply and whether the person in contravention or in non-compliance is an individual or a person other than an individual;

(k) respecting reviews under section 17, including

( i) prescribing grounds for a review,

( ii) prescribing timelines for a request for a review and establishing the procedures for requesting a review,

( iii) establishing procedures for reviews, and

( iv) respecting the effect of an inspector’s order pending the outcome of a review;

(l) respecting appeals under section 18, including

( i) establishing or designating, as the case may be, an entity responsible to hear appeals,

( ii) prescribing grounds for an appeal,

( iii) prescribing timelines for appealing a decision and establishing the procedures for appealing a decision,

( iv) prescribing fees for appeals,

( v) establishing procedures for appeals,

( vi) respecting the effect of a decision of the Minister pending the outcome of an appeal, and

( vii) prescribing the duties and powers of the entity responsible to hear appeals;

(m) prescribing provisions of the regulations the violation of which or the failure to comply with constitutes an offence;

(n) with respect to offences under the Act or regulations, prescribing the categories of offences for the purposes of Part 2 of the Provincial Offences Procedure Act;

(o) prescribing forms and authorizing the Minister to provide forms for the purposes of this Act;

(p) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both; and

(q) respecting any other matter that may be necessary for the proper administration of this Act.

22( 2) Regulations may vary for or be made in respect of different persons, matters, activities or things or different classes or categories of persons, matters, activities or things.

Commencement

23 Sections 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 come into force on a day or days to be fixed by proclamation.