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In California, a state known for its progressive stance on labor laws, the California Equal Pay Act is a landmark piece of legislation designed to address and rectify compensation disparities. This article will discuss the California Equal Pay Act and address the most frequently asked questions regarding unequal pay in California.

The California Equal Pay Act

The California Equal Pay Act (CA Labor Code §1197.5) was enacted to prohibit employers from paying their employees less than employees of the opposite sex for doing the same work. It was later amended to add race and ethnicity as protected categories.

According to the Equal Pay Act, there are only a handful of reasons that justify unequal pay for substantially similar work:

• The first reason is seniority – if an employee has been at the company longer, they might be paid more for that reason.
• The second reason is merit – if your employer uses performance evaluations with a rating system, and another employee has a higher rating, that could justify the difference in pay.
• The third reason is a system that measures production – If your company makes widgets, and the other employee makes more than you, then that could justify the difference in pay.
• The fourth reason is a bona fide factor other than sex, race, or ethnicity and can be vague. It could be based on:
  • Education
  • Training
  • Experience
  • Or maybe your company has different salary bands for different geographies

FAQs

Here are some of the questions we hear most often regarding unequal pay.

I think my company pays Brad, a white male salesperson, more than it pays me (a black female). Is that legal?

Under certain circumstances, this could be unlawful. Gender, race, and ethnicity are covered under California’s Equal Pay Act.

Now to the question. Commissions are a form of wages, so the commission rates can’t violate the Equal Pay Act.

If you are doing substantially similar work as Brad, under the same conditions and requiring the same skill, effort, and responsibility, but for less pay (here, a lower commission rate), then you can make what’s called a prima facie case for unequal pay. Once you make that case here in California, the burden shifts to your employer to prove that there is a valid reason for paying Brad more. Yes, that’s right, the employer now has to prove there was no unequal pay.

Is it actionable unequal pay if Brad just negotiated better?

In California, it still might be unlawful unequal pay if the reason for the difference is that Brad negotiated better. It could be seen as perpetuating the prior pay disparities.

For example, maybe you negotiated based on your previous salary and settled for less because your last job paid you less. That would be perpetuating unequal pay. Your prior pay cannot be used as a basis for setting your pay in your new job.

I know that my male co-worker, who does the same work I do, is getting paid a lot more than me. But he does not work in the same facility. Do I have a case?

If the co-worker making more than you is of a different gender, race, or ethnicity, and performs substantially similar work under similar conditions, there might be an issue. Under the California Equal Pay Act, you do not have to compare your pay only to employees working in the same establishment where you work.

I think I’m getting paid less than my co-workers. Can I investigate this by asking my co-workers what they are getting paid?

Yes! Your employer cannot prohibit you or other workers from disclosing how much they are paid, discussing the wages of other workers, or inquiring about others’ wages. If your employer has a written policy stating that workers cannot talk about their wages (and some employers still do), that policy is outdated and unlawful in California.

If you are a woman or person of color, and you work in a position performing substantially similar work as employees outside your protected group, you absolutely have the right to ask what others are being paid, and your employer cannot retaliate against you for doing so.

Are You Getting Paid Less Than You Should? Advantage Advocates Can Help!

We hope that addressing some common questions surrounding the Equal Pay Act sheds some light on your rights. Along the way, you may run into a “Brad,” so if you think there’s a Brad getting paid more than you are at your job, Advantage Advocates can help!

Contact us today for a complimentary consultation.