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The Question

I recently got a job at a fast-food restaurant. My friend, who is also my co-worker, is getting paid 90 cents more per hour. We work the same position and the same amount of hours. Is there anything I can do?

The First Answer

Susanna Quail, partner, Allevato Quail & Roy, Vancouver

Employers are generally allowed to pay employees different rates for the same job. They might do this if employees have different levels of experience, qualifications or productivity, for example, but they can also do this arbitrarily or play favourites.

There are a couple of exceptions. Employers cannot pay different wages for the same work on the basis of age, disability, sex, race or other grounds that are protected under the Human Rights Code. If you have reason to believe that your employer is paying employees differently on one of these bases, you may have grounds for a human-rights complaint. The other exception would be if you are in a union and covered by a collective agreement. Then, your employer has to pay everyone the wages set out in the collective agreement and can’t pick favourites.

Don’t let this information stop you from asking for a raise: Just because an employer doesn’t have to do something by law doesn’t mean you can’t ask for it. Organizing a union in your workplace can also help to ensure employees get treated – and paid – fairly.

The Second Answer

Kumail Karimjee, principal, Karimjee Law, Toronto

The situation you describe is not uncommon in non-unionized workplaces. Generally, hourly wage rates are agreed to by an employer and an individual employee. The “freedom of contract” means that an employer can contract for a lower rate with one employee and a higher rate with another employee. Although this may create morale problems if employees realize that they are paid less than others for the same work, it is generally permissible.

There are some limitations to the freedom of contract. For example:

  • The Employment Standards Act (ESA) in Ontario prohibits an employer from paying an employee a lower rate than an employee of another sex when they perform substantially the same work in the same establishment, with substantially the same skill and under similar working conditions. If this describes your situation, you can file an ESA claim. This does not apply where the difference in pay is based on seniority, merit, production level or a factor other than sex.
  • The Ontario Human Rights Code prohibits discrimination in employment on the basis of a number of grounds (e.g. race, sexual orientation, disability). If the wage differential is based on a prohibited ground, you can file a human rights application.

If there are no employment standards or human-rights considerations at play, you can try to negotiate with your employer for a raise. Beyond that, your best bet may be to take steps to organize a union. If employees are represented by a union and bargain collectively, generally consistent wages rates will be negotiated.

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