Equal Pay

Equal Pay for Substantially Similar Work

The California Equal Pay Act, enacted in 1949, was intended to correct the centuries-old problem of gender-based wage discrimination and redress the segregation of women into historically undervalued occupations. Yet over half a century later, in 2022, the problem persists as women earn 82 cents for every $1 men earn when comparing all women to all men. In part, this is caused by women being more likely to leave the workforce as a result of social expectations placed on them as mothers and caretakers, heightened by the pandemic. Unemployed women also face a disproportionate wage penalty compared to men when they re-enter the workforce.

The California Fair Pay Act replaces the equal pay for “equal” work standard with equal pay for “substantially similar” work. The Act prohibits an employer from paying any of its employees wage rates that are less than what it pays employees of the opposite sex, or of another race, or of another ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.

You are entitled to equal pay for equal work regardless of your employer’s motivations. In other words, it is illegal to offer unequal pay for equal work, even if your employer did not intend to pay you less because of your sex. Note, somewhat similar protections are outlined in the federal equal pay act, also known as the Equal Pay Act of 1963.

In addition to the Equal Pay Act, California’s Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating because of sex, race or ethnicity, including paying you less because of your sex, race or ethnicity. Under FEHA, however, you must show that the employer offered you unequal pay  because of your sex, race or ethnicity. In other words, your sex, race or ethnicity had to be your employer’s motivation for paying you less.

What does “substantially similar work” mean?

“Substantially similar work” does not mean the exact same job or same job title.  Rather it refers to work that is mostly similar in skill, effort, responsibility, and performed under similar working conditions. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job. Working conditions has been interpreted to mean the physical surroundings (temperature, fumes, ventilation) and hazards.

Title discrepancies can be a major factor in concealing wage gap violations. Offending employers can give showy titles to justify a higher salary for a particular employee, even if their work is substantially similar to others who are being paid less. Pay attention to situations where an employee has a lofty title but otherwise appears to have the same work responsibilities as you.

How to prove an Equal Pay Act claim.

If a pay differential exists between two co-workers of different genders, races or ethnicities, the Equal Pay Act requires the employer to prove that the differential is based upon one or more of the following factors, that each factor relied upon is applied reasonably, and that the one or more factors relied upon account for the entire wage differential: (i) a seniority system, (ii) a merit system, (iii) a system that measures earnings by quantity or quality of production, or (iv) a bona fide factor other than sex, race or ethnicity, such as education, training, or experience, if the employer can demonstrate that the “other than sex”, “other than race” or “other than ethnicity” factor is not based on or derived from a sex-, race- or ethnicity-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. “Business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. The statute expressly states, however, that “[p]rior salary shall not, by itself, justify any disparity in compensation.” Even if the employer makes this showing, the “other than sex”, “other than race” or “other than ethnicity” defense will not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.

In addition, an employer must show that it applies the above factor(s) reasonably and that the factor(s) accounts for the entire difference in wages. Under the Equal Pay Act, an employer may not justify any pay difference between employees of the opposite sex, or employees of different race or ethnicity based on an employee’s prior salary. An employer may make a compensation decision based on a current employee’s existing salary, however, any wage differential resulting from that compensation decision must be justified by one or more of the factors listed above.

There is no requirement for a plaintiff to show discriminatory intent as an element of the claim

When to file your Equal Pay Act claim.

Under the Equal Pay Act, an employee must file a claim within two years from the date of the violation. If the violation is willful, then an employee has three years to file. Each paycheck that reflects unequal pay is considered a violation for the purpose of calculating the deadline for filing.

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Employer is required to keep records of employee wages and wage rates. 

An employer must keep records of wages, wage rates, job classifications, and other terms and conditions of employment for a period of three years.

You can ask your employer how much other employees are paid.

An employee can ask his or her employer about how much other employees are paid, however, the law does not require an employer to provide that information.

Employers cannot limit employee’s discussion of their wages.  For example, employers cannot prohibit employees from discussing or disclosing their wages, or for refusing to agree not to disclose their wages.

Employers may not ask applicants about prior salary.

The law prohibits an employer from relying on an applicant’s salary history information as a factor in determining whether to offer employment at all or in determining what salary to offer.

In addition, upon a reasonable request, an employer must provide the “pay scale” for the position to an applicant.  California was the first state in the nation to require this “pay transparency” disclosure.  However, nothing in the law prohibits employees from voluntarily disclosing salary history to a prospective employer.  Finally, an employer may ask an applicant about their salary expectations for the position, which is different than asking the applicant about earnings in the past. And if salary history information is disclosable to the public under either the California Public Records Act or the federal Freedom of Information Act, then an employer may seek the salary history information of an applicant for employment during times when the applicant worked for a public employer and

Retaliation is prohibited under the EPA.

An employer is prohibited from retaliating against an employee for “any action taken by the employee to invoke or assist in any manner” with the enforcement of the Equal Pay Act.

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Undocumented immigrants are also protected against unequal pay.

Everyone has the right to file equal pay and discrimination claims. If you are undocumented, it is a good idea to consult with an immigration lawyer before filing a complaint to discuss any immigration consequences to reporting a violation.

Recovery if you prevail in your Equal Pay Act claim.

An employee can recover the difference in wages, interest, and an equal amount as liquidated damages. If an employee files a case in court, he or she can also recover attorney’s fees and costs.

Provisions for enforcement through administrative proceedings and civil actions are contained in Lab. Code § 1197.5, subds. (b) to (i) which also provides for liquidated damages equal to double the differential, interest, costs of suit, and attorney’s fees. The Equal Employment Opportunity Commission (EEOC) and the Department of Fair Employment and Housing (DFEH) also investigate wage inequality claims, and related work environment, back pay and overtime pay issues.

In addition to an EPA claim, the advantage to the plaintiff in proving disparity of pay under the Fair Employment and Housing Act, or Title VII under federal law, is that compensatory damages, including emotional distress, and punitive damages are available. Note, discrimination in wages on the basis of sex is a misdemeanor punishable by a fine or imprisonment, or both.

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If you are a victim of employment discrimination, you may be scared and unsure of your rights. If you are interested in learning more about your rights, discussing your potential pay discrimination case and obtaining legal advice from an employment attorney, please contact the Avloni Law Firm today for an initial consultation. Important statute of limitations apply to employment law claims so it is imperative that you do not delay reaching out to equal pay lawyers if you believe there has been a violation of an equal pay law.

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