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Is Your Employer Paying Employees Unequally?

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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.

Just Because You Are Paid A Salary Does Not Mean You Are Automatically Exempt from Receiving Overtime Pay

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When Haeggquist & Eck, LLP asks clients or potential clients whether they have been properly receiving overtime compensation at their job, a common response we hear is, “I am not entitled to overtime because I am paid a salary.”

No matter the origin of this commonly held myth, it is not fully accurate. The nature of an employee’s work, not the basis of the employee’s paycheck, calculates whether the employee is entitled to overtime. An employer can technically pay anyone one a “salary,” but that does not make the employee automatically exempt. Thus, even if an employee is paid on a “salary” basis, if the employee is not working in an exempt position, the employer must still pay overtime above and beyond the employee’s salary.

You May Be Misclassified as An Exempt Worker

Under California law, employees are entitled to overtime pay unless their jobs are exempt from overtime requirements. Exemptions from mandatory minimum wage and overtime laws are narrowly construed in order to curb abuses. Federal labor law is similar, but employers in the state of California must meet the California standards, because the state rules are marginally stricter.

One of the more common categories of exemptions apply to those persons employed in an “administrative, executive, or professional” capacity. This is likely the category from which the “salary” myth was derived, as it constitutes one of the elements—often referred to as the “salary basis” test—that must be met in order to be exempt. The three exemptions have some similarities, and some differences.

Similarities Between Common Exemptions

All three exemptions require the employee: (1) be “primarily engaged in duties that meet the test of the exemption; (2) “customarily and regularly exercise discretion and independent judgment in performing those duties”; and (3) earn “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” In 2020, the minimum compensation for exempt employees is $54,080 per year for an employer with more than 25 employees, and $49,920 per year for employers with 25 or fewer employees. That number will rise slightly every year.

If an employee’s job does not meet all three of those elements, it will not qualify for the administrative, executive, or professional exemption, and the employee will be entitled to overtime pay.

Consider the first factor. Generally speaking, an employee must spend the majority of his or her time performing exempt duties. If the employee does too much non-exempt work, the exemption will not apply. The classic example here would be a “manager” working in a retail business who actually spends the majority of his or her time stocking shelves, cleaning, dealing with customers, or otherwise performing the tasks that hourly employees are expected to do. Under these facts, the manager might not be “primarily” engaged in exempt, executive functions; and he or she would, therefore, be entitled to overtime pay and a guaranteed minimum wage.

Differences Between Common Exemptions

The differences between the common exemptions boil down to the nature of the work performed. “Executives” are employees who direct business operations, manage at least two other employees on a

regular basis, and have at least some meaningful involvement in hiring and firing decisions. The “professional” category applies to classic professions, like doctors and lawyers, or other so-called practitioners of the “learned arts,” like scientists and college professors. The trickiest category is probably the “administrative” exemption. Generally speaking, administrators fill roles that support executives or business owners in non-manual tasks, but they also perform more than merely clerical functions.

If an employee’s job does not actually involve exempt functions, the employee must be paid overtime. Determining whether job duties fit the exemptions can be a tricky inquiry that depends on the facts and circumstances of a particular situation.

If you think you might be performing non-exempt job duties, you should consult an experienced labor and employment attorney who can advise you on whether your employer should be paying you overtime.

Even If You Are or Were Properly Classified, Not All Your Work May Be Exempt from Overtime

The nature of the world is such that things can, and often do, change. Some exempt employees may have been properly classified when they were hired, but their job duties may shift over time to the point where the employees are no longer “primarily” performing exempt functions. Even temporary changes, such as might occur during periods of uncertainty or upheaval at a company, can cause workers to temporarily lose their exempt status if they are called on to fill non-exempt roles for a substantial period of time.

Too often, employers expect exempt employees to “rise to the occasion” when a business faces unexpected challenges. This is all well and good, but, if “rising to the occasion” means exempt employees start filling non-exempt roles just to get by, then those employees may be entitled to a guaranteed minimum wage and overtime pay. Whether an employee loses exempt status will depend on the facts on the ground at the particular job. While it may be OK to have an exempt employee working a nonexempt job for a day, maybe even for a week, if the changed circumstances continue unabated, there may be a problem with the exemption.

What Should I Do If Suspect I Am Misclassified?

Just because you are paid a salary, does not automatically mean you are exempt from overtime and minimum wage compensation. Misclassification of non-exempt employees is a serious violation of state and federal labor law. If you believe you have been misclassified, you should consult a labor and employment attorney. You may be entitled to recover unpaid wages and overtime pay from your employer.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

How Do I Know If I’m Being Paid Less Than My Male Counterpart?

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The term “pay equity” has been heavily used in the workplace, media and culture in the last several decades, especially from women who feel they are not being paid equally. Put simply, pay equity is being paid equally regardless of your gender or race. Female workers should be paid the same as their male colleagues if they are doing “substantially similar work” when viewed together with your skill, effort and responsibility, and performed under similar working conditions. Women make up nearly half the workforce, yet they currently earn only $.77 to every dollar that men are paid in the United States today.

We often hear from women who are concerned they are being paid less than their male colleagues. Here are steps to follow to determine if you are being paid less than your male counterpart.

Learn about the law. It’s not possible for you, as an employee, to know exactly why one person is being paid differently than another. That being said, if you are both doing the same work and you are being paid less than a male counterpart, this may constitute a violation of the California Equal Pay Act. Even if the employer did not intend to discriminate, it is illegal for men and women to be paid differently for the same work.

Do research. If you believe you are getting less pay than your colleague, it’s important to do research and find facts and data to back up your claim. Taking into consideration your education or skill level, years of experience, and other determining factors, here are suggestions for researching a fair and equal salary and compensation package:

  • Talk to your coworkers who are doing similar work and ask if they will share how much they are being paid.
  • Ask friends and colleagues if they will share their current salary range if they work in the same or substantially similar position as you but at different employer.
  • Seek information from industry associations and networking events. Many industry associations perform surveys that are shared with their members on the current state of the industry, including salary ranges. Engage with attendees at networking events and ask what the standard salary is for the same position. You may also be able to post questions to a listserv that can be asked and/or answered anonymously.
  • Use online resources and databases organized by job title or industry to find data on salary and compensation packages.
  • Write down facts about your own work, such as your performance record, sales milestones, goals achieved, and any other noteworthy accomplishments.

Talk with your boss or Human Resources Department. If you believe you are not being paid the same as your male co-workers for doing similar work, consider taking the following steps.

1.     Talk to your supervisor or the human resources department to ask how your pay is calculated. You may want to suggest your company “audit” the pay of coworkers doing the same or similar work to find out if you are being paid equally. You might also consider following up in writing with your request to determine whether you are being paid the same as your coworkers for doing the same or similar work.

2.     Talk to your union representative, if you have one, and ask the representative about any information on pay structure or how your pay is calculated. You can also request your union investigate if you are being paid less for doing the same or similar work.

3.     File a claim with the California Labor Commissioner’s Office at and have it investigated.

4.     Consult with an attorney to determine if you should file a lawsuit.

The attorneys of Haeggquist & Eck, LLP have successfully resolved a wide range of cases involving gender discrimination and pay equity. We understand what you are going through and we know how to help.

At Haeggquist & Eck, pursuing justice on behalf of our clients is the top priority — whether it’s fighting for fair pay, against discrimination and harassment, or battling defective products and services. If you live and work in California and are being subjected unequal pay at work, call at (619) 342-8000 to schedule for a free consultation with one of the experienced employment attorneys at the law firm of Haeggquist & Eck.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Law Firms May Hire Law Students as Unpaid Interns For Pro Bono Cases

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Last week, the U.S. Department of Labor clarified its position on unpaid internships for law students at law firms, explaining that under federal law, unpaid internships are permissible in some circumstances.

The federal Fair Labor Standards Act (“FLSA”) generally does not permit individuals to volunteer to work unpaid for for-profit businesses such as law firms. The FLSA has a very broad definition of which individuals qualify as employees, and requires employers to pay their employees minimum wage and overtime (unless an exemption or exclusion applies).

However, law students are permitted to work as unpaid interns for private law firms under limited circumstances. The internship must be for the benefit of the intern, and must be similar to training which would be given in a law school clinical environment. The intern must not displace regular employees, and must work on non-fee-generating pro bono cases so that the law firm derives no immediate advantage from the internship. Additionally, the intern and law firm must understand that the intern is not entitled to wages, and that the intern is not necessarily entitled to a job at the end of the internship.

Recent law school graduates who have not yet passed any bar examination are not permitted to work as unpaid interns under the same circumstances. The Department of Labor reasoned that graduates have already completed their legal education, so law schools would not have the same ability to act as intermediaries between graduate interns and law firms.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

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