Are You getting Paid Less Because of Your Gender?

Posted by Joe Sayas | Aug 25, 2018

The California Fair Pay Act (a.k.a. the Equal Pay Act), enacted in October 2015, prohibits employers from paying employees less than those of the opposite sex for “substantially similar work,” even if their titles are different or they work at different sites. This means the lower paid employee does not have to prove that the higher paid employee of the opposite sex has exactly the same job as she (or he) does.

If differences in wages exist, the difference must be legally justified based on one or more of the following factors:

  • A seniority system
  • A merit system
  • A system that measures earnings by quantity or quality of production
  • A bona fide factor other than sex, such as education, training, or experience.

On September 30 2016, the Equal Pay Act was amended when it prohibited an employer from relying on the salary history information of an “applicant” for employment as a factor in determining whether to offer an applicant employment or what salary to offer an applicant, except in specified circumstances. The employer is also prohibited from seeking an applicant's salary history information, including compensation and benefits. The employer, upon “reasonable request,” must provide the “pay scale” for a position to an applicant applying for employment.

In July 2018, California clarified what it meant by “applicant,” “pay scale,” and “reasonable request.”

“Applicant” means an individual who seeks employment with the employer. This excludes a current employee who may be applying for a different position within the company.

“Pay scale” means a salary or hourly wage range, which may mean providing the highest and lowest pay for that position, not simply the median pay. The pay scale does not include bonuses or other types of compensation.

“Reasonable request” means a request made after an applicant has completed an initial interview with the employer.

Employees are not prohibited from voluntarily disclosing salary history information to a prospective employer. But they should remember that if they do so, the employer is then not prohibited from considering or relying on that voluntarily disclosed salary history information in determining the salary for that applicant. The employer is also not prohibited from asking an applicant about his or her salary expectation for the position being applied for. However, the law does not allow prior salary to justify any disparity in compensation.

Lastly, an employer may still make compensation decisions based on an existing employee's current salary. This is true as long as any wage differential resulting from that compensation decision is justified by one or more of the factors specified above.

About the Author

Joe Sayas

C. JOE SAYAS, JR., Esq. Recognized as one of California's top employment and labor law attorneys by the Daily Journal, C. Joe Sayas, Jr. has devoted his more than 25-year litigation career to protecting workers' and consumer rights. He has fought for employees discriminated due to disability, ra...

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