Nearly three generations ago, the California Equal Pay Act of 1949 was passed. This important piece of legislation delivered much-needed protections for employees and a series of mandates for employers, including equality of pay between men and women. “Equal pay for equal jobs at the same establishment” was the calling card of the 1949 Equal Pay Act.
And while the Act did mark a step forward in terms of equal protections for both men and women, it didn’t offer any real protections outside of gender pay equality. Flash forward nearly seven decades and the California Fair Pay Act (CFPA) of 2015 is signed into law by Governor Jerry Brown of California. This update to the existing Equal Pay Laws adds a series of important amendments, including:
WAGE SECRECY COMPONENT
The right to talk about one’s wages on the job, or the salary of a coworker, has always been a gray area. Most individuals think they aren’t allowed to discuss their pay or the salary of another person at work, as this may represent some sort of ethical or privacy-related concern. Though California law has always prohibited employers from forcing employees to keep their wages secret, it is now unacceptable for an employer to prevent employees from discussing their pay in any manner (under the CFPA). This component of the CFPA 2015 directly challenges employers to maintain transparency in terms of wages between individuals and helps eliminate possible rights violations among California workers.
Up until the end of 2015, California employers were required to maintain records related to job classifications, timecards, wages, employment terms and conditions and other relevant data for a period of two years. The CFPA 2015 now requires a full three years worth of data retention. And documents dated January 1, 2016, or later fall under this classification. This component of the Act ensures greater protections for employees and a heightened sense of accountability on California employers.
SUBSTANTIALLY SIMILAR WORK
The original Equal Pay Act mandated that employers pay male or female employees the same wages, as long as they are doing the same job at the same location, and there were no other relevant reasons for the wage disparity. The problem with this law was that it required employees to work under the same roof in order to receive the equal pay benefits. The new CFPA 2015 takes the notion of “same location” and reinvents it to read “substantially similar work.” This means that two people doing the same job, for the same company – regardless of the physical location of their brick-and-mortar workspace – should receive similar compensation. The substantially similar work philosophy looks at the effort level, responsibility and skill demanded of the positions to dictate whether the two jobs are similar.
Simply put, it is never acceptable for an employer to retaliate simply because an employee has asserted his or her rights under the CFPA 2015 rules. Levels of retaliation may vary but could include discrimination, overt or disparate treatment, changes in pay or benefits, or even outright termination. Seek the knowledgeable counsel of an employment law attorney for specifics under this rule, but always keep in mind that a one-year statute of limitations may exist to file a discrimination complaint in California court.
BONA FIDE FACTORS
The CFPA 2015 doesn’t seek to completely eliminate variations in pay among individuals who do seemingly similar work. In fact, the Act clarifies that wage differentials may exist as long as Bona Fide Factors are the reason for the unequal wages. Bona Fide Factors must be proven by the employer and can include a variety of justifications, such as:
- A seniority system that has been established as part of the employment handbook (or at least levied fairly among all employees)
- A merit system
- A pay range that varies depending on the quality or quantity of production
- Any other factor that does not rely on the sex, education level, experience, or level of training completed by the employee.
It is up to the employer to ensure each factor is applied reasonably. Prior salary alone cannot justify a wage differential.
The California Fair Pay Act (CFPA) of 2015 represents an important step forward in the continuing fight against employment-related discrimination. If you feel you’ve been the discriminated against and your employer is not willing to do the right thing, contact a reputable employment law attorney with a proven track record of successful outcomes. They’ll have the knowledge and expertise to ensure your rights are protected at all times.