Enforcing the Fair Pay Act

California’s Equal Pay & Fair Pay Acts:

If you’ve read our previous posts on the topic, you will know that the State of California enacted legislation taking aim at pay disparity between genders in the workforce. Here’s a quick summary from the California Department of Industrial Relations: For decades now, the California Equal Pay Act has prohibited an employer from paying its employees less than employees of the opposite sex for equal work. On October 6, 2015, Governor Brown signed the California Fair Pay Act (SB 358), which strengthens the Equal Pay Act in a number of ways, including by:

● 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.

But how do individual employees assert their rights? What if your boss thinks the pay differential is justified? How do you know when he or she is incorrect? What if you ask a male co-worker in the same position; he tells you his salary; and it is more than you are currently receiving? How do you argue for enforcement of your rights?

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

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. If the two employees perform similar (but not necessarily identical) job duties, they should receive equal pay.

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 while at the company he previously worked for. When that company had been acquired by Jessica’s company in a recent merger, Josh’s former salary was retained. Her boss thought that made it lawful. Sarah had no idea how to respond.

There is no carve-out in SB 358 that would allow for this pay disparity to continue. The male employee may very well have been contracted to work at a specific salary rate, but with the passage of the Fair Pay Act, Sarah is now entitled to be paid an amount equal to her male counterparts. Regardless of how their pay scales were originally assessed, employers are not lawfully allowed to pay women less for performing the same job. Sarah should demand equal compensation. If her employer refuses she should hire an employment attorney and file a claim seeking payment of the wage differential and penalties due her under the Fair Pay Act.

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 within the company in order to determine whether or not a female employee is being paid equally is now protected in California. While employers are not required to divulge that information under the new law, they cannot discipline an employee for inquiring. If you can’t get a straight answer from your boss, ask a co-worker who might know, or the male employee you believe is being paid higher wages. If an employee is retaliated against for this conduct, he or she “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 on the uptake, and it may take time to recover what you are owed. Although anyone can file an unfair pay claim with the DFEH, employers who practice wage disparity are likely to fight initial claims. Since the amendments to the equal pay law are fairly new, appellate courts have yet to clarify the gray areas of its enforcement. Employers who believe pay differences are justified, even if they are incorrect, are likely to fight in order to avoid having to pay out the substantial penalties built into the law. The DFEH is overworked, and case administrators do not have the time required to research every case thoroughly to guarantee a satisfactory result for each individual. Your case may 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.

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


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