California workers have likely heard of California’s Equal Pay Act. In its simplest terms, the act requires “equal pay for equal work,” meaning it is an illegal form of workplace discrimination to pay employees less money when they perform substantially similar work to that performed by employees of the opposite sex or of another race or ethnicity.
In 2016 and 2017, lawmakers implemented some major changes to the act, which were designed to strengthen the legal protections available to employees. Under the current version of the act, employees who perform substantially similar work must be paid equally.
Substantially similar work means work that is similar in effort, responsibility and skill, performed under similar working conditions.
The current act now states that employers may not pay different wages based on race or ethnicity. The previous act only applied this requirement to differences based on sex. Moreover, employers cannot use an employee’s prior salary as a reason to validate unequal pay rates based on race or ethnicity.
One of the biggest challenges for employees trying to determine if they had a claim under the previous act was the inability to discuss wages with their co-workers. The current act forbids employers from preventing employees from discussing wages or asking questions about other employees’ wages.
Working at the same establishment is no longer a requirement for an employee to pursue a claim under the current act. Additionally, employers are now required to maintain wage records for three years, rather than two years, and they cannot engage in illegal retaliation against an employee who files a claim.
Once an employee proves that an employer violated the act by paying less wages for substantially similar work, the employer must prove that there is a legitimate reason for the difference in pay.
Reasons an employer could give include a difference in seniority levels, higher production levels or a “bona fide reason other than sex, race or ethnicity.” A bona fide reason may be one employee having a higher level of education or additional training, justifying the higher pay rate.
The act can be complex and as with many areas of the law, there are grey areas. An employee wondering if they have a claim worth pursuing could benefit from talking with an experienced employment attorney.