Steps to Enforce Fair Pay

We have posted previously on the Equal Pay Act. Here we will recap some information about Fair Pay for women and update you on the legislation. California enacted this legislation to take aim at pay disparity between genders in the workforce. Here’s a quick summary from the California Department of Industrial Relations:

California’s Equal Pay & Fair Pay Acts:

The Equal Pay Act has been in effect for decades. This legislation prohibits an employer from paying female employees less than their male counterparts for equal work. On October 6, 2015, Governor Brown signed the California Fair Pay Act (SB 358). The new law is titled the Equal Pay Act. The updated bill strengthens the law in a number of ways, including:

• Requiring equal pay for employees who perform “substantially similar work,” when viewed as a composite of skill, effort, and responsibility.
• Eliminating the requirement that the employees being compared work at the “same establishment.”
• Making it more difficult for employers to satisfy the “bona fide” factor other than sex” defense.
• Ensuring that any legitimate factors relied upon by the employer are applied reasonably and account for the entire pay difference.
• Explicitly stating that retaliation against employees who seek to enforce the law is illegal, and making it illegal for employers to prohibit employees from discussing or inquiring about their co-workers’ wages.
• Extending the number of years that employers must maintain wage and other employment-related records from two years to three years.

How do individual employees assert their rights?

A change in the law always raises questions. What if I ask a male co-worker doing the same job what he makes and it’s more than I do?  How do I argue for enforcement of my rights? What if my boss says he thinks the pay differential is justified?

Here are some possible scenarios a female employee might find herself in:

Jessica

Jessica discovered that she is being paid $500 less per paycheck than her co-worker, Pete, although he was hired after she was, and they perform nearly identical tasks and both have the same job title. But Jessica and Pete work at different branches within the company, which is a real estate location management service. Can she still file a claim for the pay disparity?

Yes. Two employees who perform similar (but not necessarily identical) job duties should receive equal pay.

Sarah

Sarah questioned her boss about pay disparity after finding out that Josh, another co-worker who was also a sales rep, was making $5,000 more annually than she was. Sarah’s boss replied that yes, it was true, but said that Josh’s salary was higher because he had been making that amount at Company X before the merger. Company X had been acquired by Jessica’s company in a recent merger. Josh’s salary remained the same after the merger. Sarah’s boss thought that made it lawful to pay him more money. Sarah had no idea how to respond.

There is no carve-out in SB 358 that would allow for this pay disparity to continue. Josh may very well have been contracted to work at a higher rate of pay. However, with the passage of the Fair Pay Act, Sarah is now entitled to be paid the same salary as Josh. This is because they do the same job. Even though their pay scales were originally assessed at different rates. Employers are no longer allowed to lawfully pay women lower wages for performing the same job as a male. Sarah should demand equal compensation. If her employer refuses, she should call an employment attorney. An attorney can help her file a claim seeking payment of the wage differential. They can also aid with recovery of penalties due her under the Fair Pay Act.

Jan

Jan asked a number of her co-workers what Tony was making, because he’d just bought a very expensive car. She and Tony were both Analysts in the same department with the same basic duties. Jan’s manager told her it was none of her business and to stop asking around. Is that legal?

Jan is not being rude, she is just trying to be treated fairly. Investigation into the wages of male co-workers who hold similar positions is covered by the law. Jan is within her rights to ask around the company. Jan’s questions to co-workers cannot be challenged by her employer. Employers are not required to divulge salary information, but they cannot discipline an employee for inquiring. Employees can ask management for other workers salaries, but they don’t have to say. So ask a co-worker who might know. Casually question a male employee you think makes a better salary. If you are retaliated against for this conduct, you “may recover in a civil action reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, including interest thereon, as well as appropriate equitable relief.”

The Takeaway

Your employer may be slow to recognize his obligations. These amendments to the previous Equal Pay law are fairly new.  You may have to wait some time before you recover what you are owed. Employers who engage in wage disparity are likely to fight initial claims. Employers who believe pay differences are justified, will try to avoid paying out the substantial penalties due employees.  You can file an unfair pay claim with the DFEH, but the agency has a significant backlog. Case administrators do not have the time required to research every case thoroughly. They cannot guarantee a satisfactory result for each individual. Your case might be lost in the process of a well-meaning bureaucracy.

Although a lawyer will charge a fee, they will also give underpaid employees the best chance at the desired result. Having an advocate on your side who understands California’s equal pay law is often the wisest course of action.  If you are in need of legal assistance in the area of California employment law, we are here to help. Give us a call at Lazear Mack.

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

510-735-6316

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