Did you know that women still earn, on average, only 80 percent of what men do? Fortunately, California is leading the way when it comes to laws designed to close the gender wage gap.
What is the Gender Pay Gap?
In 2017, the Los Angeles Times reported that women who live in California and work full-time earn nearly $7000 less than men in the same situation.
According to the language of SB 358 (signed into law by Gov. Jerry Brown in 2015), “In 2014, the gender wage gap in California stood at 16 cents on the dollar. A woman working full-time year-round earned an average of 84 cents to every dollar a man earned. This wage gap extends across almost all occupations reporting in California. This gap is far worse for women of color; Latina women in California make only 44 cents for every dollar a white male makes, the biggest gap for Latina women in the nation.”
While studies point to different causes, the unfortunate reality is that many employers simply pay women less than men for performing the same or similar job.
The California Fair Pay Act 2015
The California Legislature has been active in addressing the gender pay gap. Signed by Gov. Jerry Brown in 2015, and amended multiple times since, the California Fair Pay Act 2015 clarified and significantly strengthened women’s rights. Previously, the law prohibited employers from paying employees who perform jobs requiring “equal skill, effort, and responsibility” differently based on sex. In 2015, those prohibitions became increasingly powerful.
Significant changes enacted in 2015 include:
- 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.”
- Ensuring that any legitimate factors relied upon by the employer for pay inequities 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.
“Substantially Similar Work”
For example, pre-2015, an employer had to merely compare the wages of employees working the same jobs at the same establishment. After 2015, “substantially similar work” must be assessed by a combination of “skill, effort, and responsibility” required by the position. Per the Labor Commissioner’s Office, “substantially similar work” refers to work that is mostly similar in skill, effort, responsibility, and performed under similar working conditions. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job. Working conditions has been interpreted to mean the physical surroundings (temperature, fumes, ventilation) and hazards.” If an employee can show that she is being paid differently than another employee for “substantially similar work”, then she has a colorable claim and the burden shifts to the employer to show that it a legitimate reason for that difference.
Work is “substantially similar” when it is performed under similar working conditions and requires similar skill, effort, and responsibility. “Working conditions” refers to the physical environment in which the job is performed—for example, an office job is performed under very different conditions than construction job. The work does not, however, have to be performed at the same employer location in order to be substantially similar for the purposes of the CA Equal Pay Act.
As of January 1, 2018, California employers are also prohibited from relying on salary history in determining whether to hire an employee or in fixing an employee’s compensation.
Affirmative Defenses
If there is a pay differential for substantially similar work, the CA Fair Pay Act makes it the employer’s burden to show that it is based on merit, seniority, the quantity or quality of production, or on a “bona fide factor” other than sex. The employer may take factors into consideration like education, training, or experience when setting salary levels. The employer must demonstrate that it is not using a method “derived from a sex-based differential in compensation” and must demonstrate that it serves a “business necessity.”
We Vigorously Fight for Equal Pay
The gender pay gap is a long-standing, systemic, problem with no quick solution. In California, thankfully, we have a highly developed legislative response to the problem. But it takes experienced employment attorneys to help vindicate the rights of workers impacted by discriminatory payment practices. If you are a woman and your employer is paying you less than your male coworkers to perform essentially the same jobs, MLG can help you seek justice under the Fair Pay Act. Your employer is, by law, prohibited from retaliating against you for seeking action and your employer is also prohibited from preventing you from disclosing your wages.
Contact us to review your case and advise you on how to proceed.
Equal Pay Resources