Under the Equal Pay Act, California’s shows a strong public policy favoring employees. The Equal Pay Act requires employers to equal pay for all workers regardless of gender, women, race, minorities, sexual orientation, sexual identification, gays, lesbians, or transgender. The laws are California Labor Code 1197.5 and Labor Code section 432.3.
The California Equal Pay Act (herein “Equal Pay Laws”) has been on the books for several decades. This law has ensured that employees get paid equally for the same work. This is true regardless of what gender they may be. This law was reinforced with the California Fair Pay Act of 2015. This renewed commitment to equal pay showed Californians the commitment the state has towards attaining equality for all genders.
Free consultation with an equal pay attorney: 619-550-1321.
What has changed as a result of the California Equal Pay Laws?
There have been several changes that came as a result of the California Equal Pay Laws. They can be summarized as the following:
- Equal pay is required to be provided to employees performing work that is very closely related.
- Employees need to get equal pay, even if they work in different places.
- Employers are unable to justify unequal pay by attempting to come up with some other excuse.
- Any sound factors for differences in pay need to be applied in a reasonable manner.
- Employees are barred from retaliating against employees who bring up an issue regarding unequal pay.
- Employers are required to keep records of wage earnings for three years, instead of two.
Since when has this law been in effect?
The newest aspects have been in affect since 1/1/16.
Are there additional changes to the law since 1/1/16?
Yes, there have been more changes. As of 1/1/17, the law ensures employees receive equal pay regardless of their race or ethnicity. These, along with gender, are not categories that receive protection. Employers are not allowed to pay their workers less, regardless of their race, gender, or ethnicity. This is true as long as the work performed is similar enough. The new provisions are just like the ones for gender.
As of 1/1/18, the law also protects public employers. This means that employers are not allowed to look into the history of an employee’s salary. There has been additional clarification on this added into the law, which went into effect on 1/1/19.
What is offered by the Equal Pay Act currently?
As of right now, the law bars employers from paying rates that come in as less than what employees of another gender gets. This also applies towards another race or ethnicity as well. The one caveat is that the work they perform must be very similar. Sometimes, it is difficult to pin down specific work. In that case, then a very similar skill or responsibility can be used as a metric.
What qualifies as very similar work?
In order for work to be considered very, or substantially, similar, it needs to be similar in one of a few ways. The skill needs to be very similar or the responsibilities and duties need to be very similar. Skills can be broken down a little more. This can refer to any experience, abilities, training, or education needed to accomplish tasks within a role. Responsibilities can also be split up. This refers to what sort of duties an employee has within the context of their role. Additionally, working conditions have to be very similar.
Attorney Brad Nakase is an equal pay lawyer and available for free consultation: 619-550-1321.
What differences exist between the new and old Equal Pay Laws?
There are a few key differences between the old two laws. The following now apply thanks to the new law:
- Differences in wages are also prohibited with regards to race or ethnicity.
- Jobs no longer have to exist at the same location.
- When the term “equal” is used, it refers to work that is very similar.
- Employers will have difficulty justifying unequal pay on the grounds of gender, race, or ethnicity.
- Employers will face stiffer penalties for retaliating against employees bringing a claim against them.
- Employers are unable to bar employees from revealing what they earn. They are also not allowed to stop employees from asking other employees about what they earn.
- Employers cannot look into someone’s previous pay rates and salaries to justify and differences in pay. This is true when it pertains to gender, race, or ethnicity.
If I have a claim, what proof do I need to show, according to the new law?
To follow the new law, you will have to show proof. This would be proof that you are getting paid less than someone of another gender, race, or ethnicity. Additionally, you would have to prove that the other employee(s) are doing work very similar to yours. When you are able to demonstrate this, an employer then has to prove something as well. They must prove that they had a good reason for the disparity in pay. When you’re ready to file a claim, please contact our equal pay lawyer: 619-550-1321.
Can you still file a claim if someone earning more than you has a different title?
Yes, you still have the right to file a claim. The current law will compare jobs based on how similar they are. This holds true regardless of what the titles of those jobs are.
What determines wage rates?
There are no concrete definitions of what “wage rates” are. This is a term used to describe any sort of wages or salaries employees may receive. This can also include other types of compensation.
Is it possible for employers to win against a claim?
Yes, it is. Employers can win against claims using the Equal Pay Laws. To do this, they must prove that any differences in pay for very similar work are because of the following:
- a method measuring how much is produced
- another authentic factor besides gender, ethnicity, or race.
Employers have to demonstrate that one of the above is applicable. They must also prove that one of these is the sole reason for the difference in pay. Employers are currently not allowed to justify differences by using data of previous earnings. Employers can compensate using current salary data. However, any differences must be because of one of the above-mentioned reasons. The employer has deep pockets to fight a claim. You should contact an experience equal pay lawyer to protect your interests.
With the new law, what is considered a bona fide factor outside of gender, ethnicity, or race? How does it become applied?
Employers have the ability to win over a claim made using the Equal Pay Laws. They can do so if they prove there was a genuine reason. This reason would have to be other than one based on gender, ethnicity, or race. The only way an employer can win in a situation like this is if they prove the reason was:
- based on something other than gender, ethnicity, or race
- based on job performance
- par for the course when it comes to something needed for a business
Are there specific examples of bona fide factors?
Yes, there are. Some examples that do not involve gender, ethnicity, or race are the following:
There are others, but these are the primary genuine bona fide factors. An equal pay lawyer can help you determine if you have a valid claim for unfair pay.
Do state government employees also receive coverage under the law?
Yes, they do. This has been the case since 1/1/18. Government employees would be considered those working in state, county, and local entities. Public employees are now allowed to file claims against their employers under the law.
At what point should a claim be filed?
Under the current law, employees will have to file claims within two years of a violation occurring. When a violation is intentional, the time gets extended to three years. Additionally, every paycheck that has unequal pay is considered to be a violation. This information will be used for ascertaining the filing deadlines. Your equal pay lawyer will help you file a claim for money compensation.
Do you have to first file an administration claim prior to filing a court case?
What you should do first is file your claim with the office of the Labor Commissioner. Alternatively, you can take your claim to court. Employees are under no obligation to file claims with the office of the Labor Commissioner prior to filing claims in court. You will also sometimes have the option of filing your claim with California’s Department of Fair Employment and Housing.
What occurs when you file a claim with the office of the Labor Commissioner?
As soon as you file your claim with the office of the Labor Commissioner, the claim will get investigated. Then, it will be determined whether there was a violation of the law by the employer. If it is determined that there was no violation, the claim will get dismissed.
If it is determined that a violation did occur, it will require remedial action from the employer. In some cases, the employer will refuse to comply with these demands. When this occurs, the Labor Commissioner will file a civil action in a court of law. This is done to recoup the wages and damages that the employer owes you.
Are you required to file claims with California’s Department of Fair Employment and Housing?
The Department of Fair Employment and Housing is the entity that will enforce the Fair Employment and Housing Act. This is a law that bars discriminating against gender, country of origin, ancestral lineage, or race. There are also more categories that have protection as well, but these are the most common ones violated.
While you have the option to file a claim with this department, you are not required to do so. The office of the Labor Commissioner will only look into violations of the Equal Pay Laws. If you claim there was a violation that is outside the scope of that law, you may go ahead and file it with the Department of Fair Employment and Housing. An equal pay lawyer will help you file a lawsuit in civil court for unfair pay.
Are you able to file claims anonymously when they are regarding the Equal Pay Laws? Can you file in a group?
The names of individuals filing claims are kept confidential. This confidentiality is kept until the claim is determined to be valid or not. When the claim has to be investigated, your name may be revealed. Yes, you are allowed to file as part of a group claim. This is possible when several employees are affected in a similar way by the same employer.
What do you receive when you win a claim?
If you win a claim with regards to the Equal Pay Laws, you can recoup the differences in wages, damages, and interest. If you were to file a court case, you also have the ability to recoup legal fees for an equal pay lawyer.
Can employers do anything to make sure they are following the Equal Pay Laws?
Yes, they can. Employers who want to stay compliant with the law should look at very similar roles. Once they gather up this information, they should determine whether everyone is getting paid the same, regardless of gender.
What is the required duration for keeping records of wages and their rates?
To stay in adherence to the law, employers have to hold onto records of wages and their rates for three years. They will also have to keep records of position classifications, along with terms and conditions for being employed.
Am I allowed to inquire with an employer to find out how much someone else is paid?
Yes, you can do that. You are free to ask them how much others are getting paid. The caveat here is that an employer is not under any obligation to give you that information.
Are employers allowed to retaliate if you ask them about what other people are making?
No, they are not allowed to do that. Employees are allowed to freely talk about what they make to whomever they wish. Additionally, they are not allowed to stop employees from encouraging others to know their rights under the law. Employers are not allowed to retaliate when these conditions exist. If the employer retaliates, you should contact an equal pay lawyer to help you.
Are employers hiring someone allowed to ask what someone is getting paid, or what they used to get paid?
No, they are not. If employers ask, in any way and through any medium, what someone’s salary history is, they are violating the law. They are not allowed to use an employee’s past salary data for ascertaining whether they should be hired.
There are only two instances where there is an exception to this. One is when the information is disclosed through California’s Public Records Act. Another is what it is disclosed through the federal government’s Freedom of Information Act.
Are you allowed to voluntarily provide your salary information to potential employers?
Yes, you are able to do so. However, this has to be done without any cues or requests from the employer. When you volunteer this sort of information without being asked for it, it may be used against you. This is why you should carefully consider whether you want to provide this information to a potential employer.
However, employers are not allowed to use salary information, even if it is given up voluntarily, in certain situations. These would be when there is a difference in gender, ethnicity, or race among employees who have very similar roles. This would be a violation of the Equal Pay Laws and be illegal.
Do employers have to give information on pay scales for open positions?
Yes, they do, if someone is applying for that position. Employers, if requested, will be required to provide this information. The request has to be deemed reasonable, which would be considered as such if someone was already interviewed. Your equal pay lawyer may help you obtain the information.
What is considered to be a “pay scale” officially?
The term “pay scale” refers to a salary or hourly rate someone is paid for a job.
Are there protections in place in the event an employer retaliates when confronted with a violation?
Yes, there are. An employer may be found retaliating against employees who bring up violations of the Equal Pay Laws. If this is the case, further action is possible, such as filing a claim.
How long do you have to file a retaliation claim?
When it comes to claims involving retaliation, you only have six months to file one. This claim has to be filed with the office of the Labor Commissioner. Your other option is to file a civil action in court. The amount of time you have to do this is a year since the retaliation occurred. You would not have to file this claim with the office of the Labor Commissioner prior to filing it in court. Your equal pay lawyer will help you with the best strategy for moving forward.
What will someone get who wins their retaliation claim?
When you win your retaliation claim, you can get a whole host of remedies. These include back pay, getting reinstated in your former position, and receiving any interest owed on back pay.
Free consultation with an employment lawyer regarding Equal Pay
Brad Nakase, Attorney