Canadian laws vary on whether workers can be disciplined for sharing salary details

An employee was reprimanded by a manager for discussing their salary with a colleague, raising questions about the legality of such discipline across Canada. Employment lawyers say the rules protecting pay discussions are a patchwork that varies by province and territory. In British Columbia, an employer cannot discipline or disadvantage an employee for disclosing their own pay. Nova Scotia and Prince Edward Island also provide statutory protection for certain salary discussions. Ontario's law is more limited, protecting employees only when they ask about or disclose pay to determine if equal pay for equal work requirements are being met.

"Whether your manager could lawfully reprimand you depends on the law where you work," said Brooke Finkelstein, an employment lawyer and workplace investigator with West Coast Workplace Law in Richmond, B.C. In Alberta, there is no specific law protecting employees who discuss their pay, said George Huang, managing partner at Skyline Legal Group LLP in Calgary. "That means your manager’s reprimand probably wasn’t illegal. It also doesn’t mean you did anything wrong in a legal sense," Huang said. For non-unionized private-sector employees in Alberta, Huang said the key question is whether an employment agreement, confidentiality clause or employee handbook states compensation is confidential. "If there’s a written rule you agreed to or were told about, the employer can treat a breach as a disciplinary matter. A reprimand is a lawful response," he said. If no such rule exists, an employee's salary is their own information, and a manager's suggestion that they cannot be trusted with confidential matters may be overstated.

Finkelstein noted an important distinction between comparing your own salary and disclosing compensation information about others obtained through confidential job duties, such as in human resources, payroll or finance. "The latter can raise legitimate confidentiality concerns," she said. Both lawyers advised that a single disclosure of one's own salary would almost never justify termination for cause. "Alberta courts require discipline to be proportionate to the misconduct," Huang said.

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The situation began when the employee discovered a colleague with similar education and experience was earning about $20,000 less. The employee encouraged their colleague to ask for more money during a performance review. During their own one-year review, the employee's manager reprimanded them for sharing their salary, suggesting they could not be trusted with confidential matters. Finkelstein recommended the employee document exactly what the manager said and keep a copy of the review. She said they should check if the reprimand was formally documented and what policy, if any, the employer says was breached. "Where the applicable legislation protects this type of pay discussion, disciplining or disadvantaging an employee for taking part in it may be prohibited," Finkelstein said. She advised that if the matter becomes formal discipline or affects pay, promotion, performance rating or other opportunities, the employee should consider obtaining legal advice. Huang also suggested contacting a lawyer if there are additional consequences.

The $20,000 pay difference raises separate legal considerations. Similar education, experience and job titles do not automatically mean two employees must be paid the same, Finkelstein said. Lawful reasons for a difference can include responsibilities, seniority or performance. However, if the gap is connected to sex or another protected characteristic, it may raise issues under equal pay, pay equity or human rights laws. "If your colleague is a woman and you’re a man, the Alberta Human Rights Act requires employers to pay employees of both sexes the same rate for the same or substantially similar work," Huang said. Similar human rights laws exist in other provinces. Huang said a $20,000 gap with similar education, experience and role could support a human rights complaint. "The employer would then need to justify the gap on non-discriminatory grounds, such as documented performance or a different scope of work," he said. More generally, a gap connected to any protected ground like race, place of origin or age could raise a discrimination issue.

With files from The Globe and Mail