Employers
Do I have to hire a consultant?
Neither the Pay Equity Act nor the Pay Equity Office require employers to hire consultants or lawyers. In many cases, employers are able to complete pay equity analyses and pay equity plans on their own. The final decision of whether to hire an outside specialist belongs to each employer.
I have just completed the pay equity plan for my organization and see that some positions need pay equity adjustments. Do I have to pay out the full amount in one lump sum?
Yes.
If a union is certified for your company, consider approaching them to discuss the possibility of spreading the payments over a period of time.
If no union is certified to represent your employees, you could still discuss the possibility of a payment schedule – you would have to obtain the written consent of each employee.
I made sure my company met its pay equity obligations several years ago, so I'm fine.
In fact, the Act requires employers to “maintain" pay equity. Whenever changes are made in the workplace, employers are responsible for ensuring that those changes do not introduce new gender-based wage gaps. Note that the Act allows employers to decide when these reviews are done; if adjustments are needed, employers are obliged to pay out those adjustments retroactively to the date of those change(s).
If a position was previously occupied by a male and is now occupied by a female, do I need to change the gender predominance of the position (job class) or does the fact that historically it had been male mean I need to keep it as male for some period of time?
Under the Act, the gender predominance of a job class is an element where a range of options and possible choices is permitted. In the case of Pioneer Youth Services (PYS Associates Ltd.) v. Canadian National Federation of Independent Unions, 2002 CanLII 49449 (ON PEHT), the Tribunal has ruled that where there is a complaint that is founded in an employer's exercise of discretion, the decision the employer made will be acceptable if it was considered to be reasonable, given the specific circumstances in which the determination was made. The Tribunal has also said that a change in gender incumbency over the period of time may require an employer to review the gender predominance.
The Act requires employers to apply three criteria or tests to determine the gender of the job class:
1. Current incumbency
2. Historical incumbency
3. Gender stereotype of the field of work
However, the Tribunal has raised a caution about the single incumbent job class especially where only one person has occupied the job for many years and has specified that some weight must be given to the gender stereotype of the field of work.
Historical incumbency refers to pattern of employment for a particular job class within an establishment. For example, if the job class in question is one that has been filled mostly by women, and a man is recently hired, it may still be considered a female job class in that establishment. Historical incumbency can only apply to situations where the job classes existed when pay equity requirements were imposed. Logically, if the employer is considered a new establishment, then the historical incumbency of job class would not apply because there would be no history of the job class in the establishment.
