California Fair Pay Act Aims to Level the Playing Field for Women

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Women of California: Take Notice

Today Governor Jerry Brown signed into law the California Fair Pay Act. It is an important piece of legislation. The CFPA strengthens the state’s equal pay laws, eliminating loopholes that prevent effective enforcement.  It also allows employees to discuss their pay with each other, without fear of retaliation.

Its predecessor, the California Equal Pay Act, was passed in 1949. Yet working women in 2017 continue to make less than their male counterparts for virtually identical work. Pay discrimination is often hidden. Pay secrecy often undermining employees’ attempts to reduce wage gaps. California workers have, in the past, been prevented from sharing salary information. Employers have forbidden such discussions to prevent them from discussing their pay with one another. Knowing that exchanging pay was a risk, employees have avoided the topic, and pay inequity persisted.

Existing Law

There are state and federal laws that attempt to address pay inequality. The California Equal Pay Act and the almost identical federal Equal Pay Act both work to remedy the problem.  However, the California Labor Code provisions codifying the CA EPA (which was first enacted in 1949 and last amended in 1985) contain out-of-date terms and loopholes that make it difficult to enforce in practice. For example, the CA EPA’s “same establishment” provision could prevent a woman who works at a facility in Oakland, from comparing her pay to that of a man who works in the same position and for the same company, but at a facility in San Francisco.iStock_000075631253_Full

The ambiguous and overly expansive “any bona fide factor other than sex” defense allows employers to rely on after-the-fact and irrelevant non-sex-based factors to explain away pay discrimination. In addition, while other Labor Code provisions prohibit retaliation against employees for “disclosing” their own wages, there currently is no specific protection for inquiring about the wages of other employees, even if the purpose of the inquiry is to exercise one’s right to be paid equally for equal work.

The New Law

The new law signed today, SB 358, effectively closes the loopholes discussed above by amending the CEPA of 1949. It does in the following ways:

  • Ensuring that employees performing substantially equivalent work are paid fairly by requiring equal pay for work “of comparable character” and eliminating the outdated “same establishment requirement;
  • Clarifying the employee’s and employer’s burden of proof  under CEPA;
  • Preventing reliance on irrelevant and ill-defined “factors other than sex” to justify unfair pay differentials by replacing “bona fide factor other than sex” with more specific affirmative defenses;
  • Discouraging pay secrecy by explicitly prohibiting relation or discrimination.

Are you or someone you know a victim of sex based wage discrimination? If so, contact us.  We have over 35 years of experience fighting for employee rights.

 The text of the legislation can be found here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB358

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA

510-735-6316

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