FAQ About The California Fair Pay Act

FAQ Graphic

It is common knowledge that, among the states, California is and has consistently been at the forefront of progressive rulemaking, especially legislation related to employment and labor law. The federal Equal Pay Act was not enacted until 1963 whereas California first passed an Equal Pay Act in 1949. California’s law was amended in 2015.

The following is a review of California equal and fair pay laws before and after the recent legislative amendments in the last five years.

The Equal Pay Act codified in Labor Code § 1197.5 formerly provided that:

No employer shall pay any individual in the employer’s employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . .

The California Fair Pay Act went into effect on January 1, 2016, with provisions that updated certain terms to make it easier to identify illegal wage gaps between men and women. After the enactment of SB 358, California Labor Code § 1197.5 (a) now provides:

(a)  An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates:

(1) The wage differential is based upon 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. . .

(2) Each factor relied upon is applied reasonably.

(3) The one or more factors relied upon account for the entire wage differential.

This legislation was further amended by SB 1063 and The Wage Equality Act of 2016 (SB 1063). This took effect on January 1, 2017. California’s equal pay law now prohibits unequal pay for employees of different races or ethnicities. The following was added in Labor Code § 1197.5(b):

An employer shall not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions . . .

Here are some frequently asked questions about this important California legislation.

In 2021, how does the current California Fair/Equal Pay Act protect me?

The amended Equal Pay Act prohibits an employer from paying any of its employees a wage rate that is less than what it pays employees of the opposite sex, or of another race, or another ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.

How does the law determine if I should be paid equal wages?

When viewed as a whole, factors that will be looked at when determining if the work is substantially similar include:

  • skill
  • effort
  • responsibility
  • working conditions

Is it a violation of the Fair/Equal Pay Act if the person who earns more than me has a different job title?

Yes, you are still eligible to file a claim if job titles differ. The Equal Pay Act compares jobs that are “substantially similar” rather than job titles.

How do I prove a violation of the Fair/Equal Pay Act?

Once an employee shows that his or her employer is paying the employee a wage rate that is less than what it pays employees of the opposite sex, or of another race, or another ethnicity for substantially similar work, the burden then shifts to the employer to show that any wage discrepancies between men and women, or between workers of different races or ethnicities performing the same job are based on seniority, merit, production-based work, or another “bona fide factor.” The employer must show that it applies these factors reasonably and that such factors provide the true basis for the total difference in wages.

What are “bona fide factors” other than sex, race, or ethnicity”?

Education, training, and experience are considered other bona fide factors.

How much time do I have to file a claim under the Fair/Equal Pay Act?

Employees must file a claim within two years from the date of the violation. If the violation is willful, the time limit is three years to file the claim. Note that each paycheck demonstrating proof of unequal pay is considered a violation for the purpose of calculating the filing deadline.

California employees are legally entitled to compensation if their employers violate the state’s equal and fair pay laws. The experienced employment law attorneys at Moss Bollinger can help protect and assert your important legal rights as a California worker. We can help you determine your best course of action moving forward. Moss Bollinger is dedicated to protecting and asserting the rights of California employees. Call 866-942-7974 today for a free consultation or contact us online.

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