California Equal Pay

1. How old is the California Pay Act?

The California Equal Pay Act has been in effect for decades now. It binds an employer to pay the employees an equal amount for the same kind of work, regardless of their sex. In 2015, California Fair Pay Act was signed by Governor Brown. It signifies the commitment of California to achieve real gender pay equality for employment. California Fair Pay Act also further strengthened the Equal Pay Act in a number of ways.

2. Are there any revisions/changes to the California Equal Pay Act?
Yes, there have been some changes to the California Equal Pay Act. Some important ones are as follows,
• The business requirement for the employees under comparison to work at the same establishment was eliminated.
• It was made more difficult for the businesses and employers to justify inequality in pay via the “bona fide factor other than sex” defense.
• It was ensured that if the employer faced some legitimate factors for pay inequality then these factors were accounted for the entire pay difference and reasonably applied.
• It was made illegal to retaliate against the employees for seeking the enforcement of this law. It was also made illegal for employers to prohibit employees from inquiring or discussing the wages of their co-workers. If your business has been sued, it is important to contact a business litigation attorney to protect your interest. The business litigation lawyer has 30 days to file an answer to the employee’s lawsuit.
• The employers must maintain wage and other records relating to employment for three years instead of the original two years.

3. Since when are these changes in effect?

These revisions/changes in the Equal Pay Act have been in effect since January 1, 2016. Nearly all businesses have complied.

4. Are there any other revisions to the California Equal Pay Act since January 1, 2016?

Yes, amendments to the Equal Pay Act have been made every year since then. A bill was signed by Governor Brown which has been in effect since January 1, 2017. It added ethnicity and race to the protected categories. California Equal Pay Act now prohibits the employers and businesses from paying inequal amounts to the employees doing the similar work, regardless of their sex, race, or ethnicity.The Equal Pay Act now also covers the Public employers, this has been in effect since January 1, 2018. Labor Code section 432.3 was enacted which is effective since January 1, 2018. It prohibits employers from seeking the salary history of an applicant and it requires employers to provide pay scales when requested by the applicants.

5. What is meant by “substantially similar work”?

“Substantially similar work” means work which is similar in responsibility, effort, skill and performed under similar work conditions. Where,
• Responsibility refers to the required duties or the degree of accountability in performing the job.
• Effort refers to the amount of mental and physical exertion required for performing the job.
• Skill refers to the education, experience, training, and ability required for performing the job.
• Work conditions refer to the hazards and physical surroundings (ventilation, temperature, fumes).

6. What do I have to prove to prevail on an employment claim of Equal Pay Act claim?

Under the Equal Pay Act, an employee has to prove that he or she is being paid less than an employee of another race, opposite sex, or another ethnicity who is performing substantially similar work. Once you establish this, the employer must then prove that there are legitimate reasons for this pay difference. If an employee needs to file a employment claim, it is always a good idea to contact an employment lawyer.

7. Can I file a claim if the person earning more than me has a different job title?

Yes, you can file an Equal Pay Act claim. Because under the current law the jobs being compared need to have substantially similar work. Hence, job titles being compared needn't be same.

8. What is meant by Wage Rates?

The law doesn’t specifically define “Wage Rates”. However, this term refers to the salary or wages paid, and also other forms of benefits and compensation.

9. How may an employer defeat an Equal Pay Act claim, under the current law?

The employer can defeat an Equal Pay Act claim by proving that the pay difference for substantially similar work is due to,
• Experience/Seniority
• A system which measures production
• Merit
• A “bona fide factor other than sex, race, or ethnicity”
Additionally, an employer must prove that the above factors are applied reasonably and that these factors account for the entire difference in wages.

10. How is the “bona fide factor other than sex, race, or ethnicity” applied?

An employer may defeat an Equal Pay Act claim by proving that the wage difference is due to a bona fide factor other than sex, race, or ethnicity. But for succeeding on this defense, the employer must also prove that the factor is,
• Job-related• Consistent with a business necessity
• Not based on sex, race, or ethnicity

11. What are examples of a “bona fide factor other than sex, race, or ethnicity”?

Some examples of a “bona fide factor other than sex, race, or ethnicity” are;
• Experience• Education
• Training

12. When should I file my Equal Pay Act claim?

An employee is required to file a claim within two years of the violation of Equal Pay Act. Many business owners luck out when the statute of limitation expires. The employee has three years to file if the violation is willful. For the purpose of calculating the deadline for filing a claim, each paycheck which reflects unequal pay is considered a violation.

13. Can I file a case in court only after filing an administrative claim? To enforce the Equal Pay Act, where should I bring my claim?If you have faced a violation of the Equal Pay Act then you can file an action in court or file a claim with the Labor Commissioner’s Office. You don’t have to file a claim with the Labor Commissioner’s Office before filing an action in court. You may also file a claim with the California Department of Fair Employment and Housing, depending on the nature of claim

14. After I file my claim with the Labor Commissioner’s Office, what will be the proceedings?
The Labor Commissioner’s Office will investigate your Equal Pay Act claim and will determine if there was a violation by your employer. The claim will be dismissed if the Labor Commissioner’s Office determines that no violation occurred.
The Labor Commissioner's Office will make a demand for remedies if it determines that a violation of Equal Pay Act occurred. If the employer fails to comply with the Labor Commissioner’s demand for remedies, then a civil action will be filed in court for recovering interest, wages, and liquidated damages owed to you.

15. Should I file an Equal Pay Act claim in a group with others or on my own?

According to the Equal Pay Act, until the validity of the claim against a business is established, the Labor Commissioner’s Office shall keep the name of the employee confidential. However, the name of the employee may be revealed if it is required for investigation of the claim. Employees who are similarly affected by an employer may all file claims together. The same investigator may be assigned to these claims.

16. If I prevail in my Equal Pay Act claim against a business, what will I get?

An employee can recover the difference in wages, interest, and an equal amount in liquidated damages. If a case is filed in court against a business, then the employee can also recover the costs and fees of the attorney for the Equal Pay Act claim.

17. Is my employer required to tell me about how much other employees are being paid?

According to Equal Pay Act, you can ask your employer about how much other employees are being paid. But the employer isn’t required by law to provide this information.

18. If I ask about wages of other employees then can my employer retaliate against me?

An employer cannot prohibit an employee from discussing the wages of other employees, disclosing his or her own wages, encouraging or aiding any other employee to exercise rights under the Equal Pay Act. Hence, an employer cannot retaliate against an employee for engaging in such conduct.

19. Can I voluntarily disclose my salary history information to a prospective employer?

According to Equal Pay Act, if an applicant voluntarily discloses salary history information without prompting from the employer then the prospective employer may factor in that information while deciding the salary for that applicant.However, an employer is prohibited from using prior salary to justify a difference in wages of employees who are performing substantially similar work but are of the opposite sex, another race, or another ethnicity. Doing this would be a violation of the Equal Pay Act.

20. Is a business employer required to disclose the pay scales?

An employer upon reasonable request is required to provide the pay scale for a position to an applicant seeking that position.Reasonable request is defined as the one made by an applicant who has completed an initial interview or other assessment with the employer.

21. How is meant by “pay scale”?

A pay scale is defined as an hourly wage or salary range for a position. An employer who is intending to pay a set piece rate amount or a set hourly amount, and not a pay range then that employer may provide that set piece rate or set hourly rate when a reasonable request is made.

22. If I complain about an Equal Pay Act violation will I be protected from retaliation?

An employer is specifically prohibited by the amended Equal Pay Act to retaliate against an employee for any action taken by the employee for invoking or assisting in any manner with the enforcement of the Equal Pay Act.

23. Until when can I file a retaliation claim with the Labor Commissioner?

You must file a retaliation claim against a business with the Labor Commissioner within six months of the retaliation, unlike an Equal Pay Act claim, which can be filed within two years of the date of the violation or three years, if willful. However, you can file a civil action for retaliation in court within one year of retaliation. You can file an action in court without filing a claim with the Labor Commissioner.

24. If I prevail in my retaliation claim, what will I get?

If you prevail in a retaliation claim then you may be awarded back pay, reinstatement, interest on back pay, and other possible compensations.