Women in California who work full time are paid substantially less — a median 84 cents for every dollar — than men, according to a U.S Census Bureau report this year. In response to this fact Governor Jerry Brown signed one of the toughest pay equity laws in the nation. How does this new law work?
California and the federal government already have laws banning employers from paying women less than men for the same jobs. The new California Fair Pay Act broadens that prohibition by saying employers cannot pay employees less than those of the opposite sex for “substantially similar work,” even if their titles are different or they work at different sites. The new law also prohibits retaliation against employees who ask about or discuss wages paid to co-workers, and it clarifies their ability to claim retaliation and wrongful termination. Employers sued by workers would have to show that wage differences are due to factors other than sex, such as merit or seniority; that they are job-related and reasonable; and that they are not due to discrimination.
This new law opens the door for a myriad of claim here in San Diego. From class actions to individual claims, employers will undoubtedly feel the effects of the new law.
The actual text of the new law (Labor Code § 1197.5) can be found below:
(a) 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, except where the payment is made pursuant to a seniority
system, a merit system, a system which measures earnings by quantity
or quality of production, or a differential based on any bona fide
factor other than sex.
(b) Any employer who violates subdivision (a) is liable to the
employee affected in the amount of the wages, and interest thereon,
of which the employee is deprived by reason of the violation, and in
an additional equal amount as liquidated damages.
(c) The provisions of this section shall be administered and
enforced by the Division of Labor Standards Enforcement. If the
division finds that an employer has violated this section, it may
supervise the payment of wages and interest found to be due and
unpaid to employees under subdivision (a). Acceptance of payment in
full made by an employer and approved by the division shall
constitute a waiver on the part of the employee of the employee’s
cause of action under subdivision (g).
(d) Every employer shall maintain records of the wages and wage
rates, job classifications, and other terms and conditions of
employment of the persons employed by the employer. All of the
records shall be kept on file for a period of two years.
(e) Any employee may file a complaint with the division that the
wages paid are less than the wages to which the employee is entitled
under subdivision (a). These complaints shall be investigated as
provided in subdivision (b) of Section 98.7. The name of any
employee who submits to the division a complaint regarding an alleged
violation of subdivision (a) shall be kept confidential by the
division until validity of the complaint is established by the
division, or unless the confidentiality must be abridged by the
division in order to investigate the complaint. The name of the
complaining employee shall remain confidential if the complaint is
withdrawn before the confidentiality is abridged by the division.
The division shall take all proceedings necessary to enforce the
payment of any sums found to be due and unpaid to these employees.
(f) The department or division may commence and prosecute, unless
otherwise requested by the employee or affected group of employees, a
civil action on behalf of the employee and on behalf of a similarly
affected group of employees to recover unpaid wages and liquidated
damages under subdivision (a), and in addition shall be entitled to
recover costs of suit. The consent of any employee to the bringing
of any action shall constitute a waiver on the part of the employee
of the employee’s cause of action under subdivision (g) unless the
action is dismissed without prejudice by the department or the
division, except that the employee may intervene in the suit or may
initiate independent action if the suit has not been determined
within 180 days from the date of the filing of the complaint.
(g) Any employee receiving less than the wage to which the
employee is entitled under this section may recover in a civil action
the balance of the wages, including interest thereon, and an equal
amount as liquidated damages, together with the costs of the suit and
reasonable attorney’s fees, notwithstanding any agreement to work
for a lesser wage.
(h) A civil action to recover wages under subdivision (a) may be
commenced no later than two years after the cause of action occurs,
except that a cause of action arising out of a willful violation may
be commenced no later than three years after the cause of action
(i) If an employee recovers amounts due the employee under
subdivision (b), and also files a complaint or brings an action under
subdivision (d) of Section 206 of Title 29 of the United States Code
which results in an additional recovery under federal law for the
same violation, the employee shall return to the employer the amounts
recovered under subdivision (b), or the amounts recovered under
federal law, whichever is less.