Can I be penalized for disclosing my salary to a colleague?

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THE QUESTION

I’m really close with a colleague – another analyst who got hired around the same time as me. We’ve been working together for just over a year and we got to talking about how much we each earn and I was surprised to hear she gets about $20,000 less even though we have similar education and experience. I encouraged her to ask for more money during her one-year review. Then, in my one-year review, my manager reprimanded me for sharing my salary with my colleague. She made it seem as if I couldn’t be trusted with confidential matters. I’m confused about whether I’m right or if my manager is. What are the labour laws around sharing salary information with colleagues?

THE FIRST ANSWER

Brooke Finkelstein, employment lawyer and workplace investigator, West Coast Workplace Law, Richmond, B.C.

A manager can expect employees to protect genuinely confidential workplace information, but a discussion between colleagues about their own salaries is not automatically confidential. Whether your manager could lawfully reprimand you depends on the law where you work.

The legal protections around salary discussions are a patchwork across Canada. In British Columbia, for example, an employer cannot discipline or otherwise disadvantage an employee for disclosing their own pay. Nova Scotia and Prince Edward Island also provide statutory protection for certain salary discussions. Ontario takes a more limited approach, protecting employees when they ask about or disclose pay for the purpose of determining whether equal pay for equal work requirements are being met.

There is also an important distinction between comparing your own salary and disclosing compensation information about others obtained through confidential job duties, such as HR, payroll or finance. The latter can raise legitimate confidentiality concerns.

The $20,000 difference is a separate issue. Similar education, experience and job titles do not, on their own, mean two employees must be paid the same. There may be lawful reasons for a difference, including responsibilities, seniority or performance. However, if there is reason to believe the gap is connected to sex or another protected characteristic, the difference may raise issues under equal pay, pay equity or human rights laws.

Document exactly what your manager said and keep a copy of your review. Check whether the reprimand was formally documented and what policy, if any, the employer says you breached. Where the applicable legislation protects this type of pay discussion, disciplining or disadvantaging an employee for taking part in it may be prohibited. If the matter becomes formal discipline or affects your pay, promotion, performance rating or other opportunities, consider obtaining legal advice.

THE SECOND ANSWER

George Huang, managing partner, Skyline Legal Group LLP, Calgary

Rules vary between provinces, but in Alberta there is no law that specifically protects employees who discuss their pay. That means your manager’s reprimand probably wasn’t illegal. It also doesn’t mean you did anything wrong in a legal sense, and your colleague may have a real legal issue of her own.

For a non-unionized private-sector employee in Alberta, the question becomes whether your employment agreement, a confidentiality clause or the employee handbook says 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. If there’s no such rule, your salary is your own information. There’s a reasonable argument you breached nothing, and your manager’s suggestion that you can’t be trusted with confidential matters is overstated.

Either way, a single disclosure of your own salary would almost never justify termination for cause. Alberta courts require discipline to be proportionate to the misconduct.

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. Similar human rights laws exist in other provinces. A $20,000 gap with similar education, experience and role could support a complaint. The employer would then need to justify the gap on non-discriminatory grounds, such as documented performance or a different scope of work. More generally, a gap connected to any protected ground (race, place of origin, age and so on) could raise a discrimination issue.

We would suggest contacting a lawyer if there are additional consequences.

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