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Is Your Employer Paying Employees Unequally?

October 13, 2021
By Haeggquist & Eck
Employer Paying Unequally

The California Equal Pay Act is a law intended to protect employees from receiving unequal pay. The Act prohibits employers from paying their employees less for substantially similar work because of their sex, race, or ethnicity.

It is also illegal for employers to retaliate against employees who file complaints under the California Equal Pay Act. If you believe that your employer has violated your rights or engaged in any unequal pay practices, you may be eligible to file a complaint or lawsuit against your employer.

What is Illegal Under the California Equal Pay Act?

While the California Equal Pay Act passed back in 1949, the Act is regularly strengthened by amendments. One of the most notable amendments was the California Fair Pay Act in 2015, which included extensive changes to the Act.

Amendments in recent years brought some of the most significant changes to the California Equal Pay Act, including:

  1. The requirement to provide equal pay for employees who perform “substantially similar work” (you can find the definition of the term below);
  2. Employees are no longer required to compare work at the same establishment to prove that an employer engaged in unequal pay;
  3. Employers may no longer justify any pay difference between employees because of different sex, race, or ethnicity or based on an employee’s prior salary;
  4. Employers are prohibited from retaliating against employees who file complaints under the Act; and
  5. Employers are required to maintain employment and wage records for three years.

California legislators introduce additional protections for employees through amendments to the California Equal Pay Act almost every year. A skilled employment lawyer will keep you up to date with the latest changes to the Act.

How Does the Law Define Substantially Similar Work?

You have probably noticed that the California Equal Pay Act uses the term “substantially similar work” when prohibiting employers from paying an employee less than other employees of different sex, race, or ethnicity if the employees perform substantially similar work.

The California Equal Pay Act views the term substantially similar work as a similar level of skill, effort, and responsibility used by employees when performing work under similar working conditions:

  • Working conditions refer to the physical surroundings where an employee performs their duties, including the employee’s exposure to such conditions as temperature, heat, fume, and other hazards.
  • Skills refer to the level of education, training, and experience required to perform work.
  • Effort refers to the amount of mental and physical exertion necessary to perform work.
  • Responsibility refers to the degree of accountability and discretion required in performing the job duties.

When an employee files an unequal pay claim, California’s Department of Fair Employment and Housing (DFEH) will determine whether the work performed by two or more employees whose job titles and salary is being compared is “substantially similar.”

What Do You Need to Prove When Filing an Unequal Pay Claim?

When you file a complaint with the DFEH alleging unequal pay, you will have to prove that you are paid less than an employee of the opposite sex or a different race or ethnicity even though you perform substantially similar work.

Then, your employer will have the opportunity to provide a legitimate reason, if any, to explain the difference in pay. It is advisable to seek the legal counsel of an attorney to help you strengthen your complaint and prevail on your unequal pay in California.

Keep in mind that California law imposes a time limit on unequal pay claims. Under California Labor Code § 1197.5(i), employees have two years from the date of the last violation to bring a claim to recover lost wages. The only exception to the time limit under the California Equal Pay Act is if the employer engaged in willful conduct. In that case, you have three years to file a claim.

Note: To determine the deadline to bring an unequal pay claim, each paycheck is considered a violation.

Can Your Employer Ask You About Your Past Salary?

In 2018, California legislators amended the California Equal Pay Act to make it illegal for employers to ask job candidates about their salary history. Thus, your prospective employer cannot ask you about your current or past salary at any point during a job interview. However, if an employee decides to volunteer information about their past salary, the employer will not commit a violation.

Can Your Employer Prohibit You From Discussing Your Salary With Coworkers?

No, it is illegal for employers to prohibit their employees from discussing how much they make with their coworkers. Your employer may not implement pay secrecy policies or retaliate against employees who discuss their salary with coworkers.

If your employer fired, demoted, denied benefits, refused to promote you, decreased your salary, or in any other way retaliated against you for asking your coworkers about their pay, you might be able to pursue a retaliation lawsuit. Consult with a retaliation lawyer to discuss your legal options.

How Do You Know That You Have an Unequal Pay Claim Against Your Employer?

Each case is unique, which is why it is best to consult with an attorney to discuss your particular situation and determine if you have a valid claim against your employer. If you believe that you are paid less than another employee who performs substantially similar work because of your sex, race, or ethnicity, do not hesitate to speak with an attorney.

An employment attorney will review your particular situation and determine if your employer is engaging in unequal pay. If you can prevail on your claim, you may be able to recover the difference in wages, attorney’s fees, legal costs, interests, as well as liquidated damages.

Many people are hesitant to file a claim against their employers, so they live with unlawful and unfair conditions at work for far too long. However, the law is in place for a reason, and employees should never accept unlawful employment actions. Stand up for your rights with the help of the right legal team.