The federal Equal Pay Act prohibits employers from paying women less than men for the same work. California’s Fair Pay Act expands that requirement. California employers must pay male and female employees equally for “substantially similar” work, when viewed as a composite of skill, effort, and responsibility. There is also no “same establishment” requirement in the California law, which means that employers cannot necessarily justify differences in pay because employees are based at two different office locations.
Under the Fair Pay Act, an employer wishing to pay a female employee less than a male employee has the burden of justifying the disparity, by pointing to a (1) seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) “a bona fide factor other than sex,” such as education, training, or experience. An employer seeking to justify a wage disparity by pointing to a bona fide factor other than sex must also demonstrate that the factor is related to the position, and that is it warranted by business necessity. Even then, a female employee may prove a violation of the Fair Pay Act by showing that an alternative business practice exists that serves the same business purpose without any wage difference. Employers are also prohibited from reducing salaries to comply with the Fair Pay Act.
Importantly, the Fair Pay Act also contains protections for employees to help determine whether they are the victims of equal pay violations. For example, the Fair Pay Act contains pay transparency provisions that explicitly prohibit retaliation for inquiring about wages, or disclosing or discussing wages. The Fair Pay Act, however, does not obligate any employee to disclose wages.
If think you are being paid less than another employee performing equal or substantially similar work based on your gender, race, or ethnicity, contact one of our attorneys today.