Equal Pay Discrimination
Are you getting paid less than your male peers? Are you getting paid less than your peers of another race or ethnicity than you? Is it for substantially similar work?
California Labor Code section 1197.5(a) provides: "[a]n 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 ...." The City of San Diego requires that employers who contract with it must comply with this provision. Equal Pay Ordinance.
When comparing work, in order to compare an employee's skills, efforts, and responsibilities for purposes of establishing substantially similar work, these factors must actually be necessary in the performance of the actual job. For example, if a language arts teacher is highly skilled in mathematics, this skill is not used in the determination of whether the language arts teacher is being paid less than another teacher, UNLESS the mathematics skill is required to fulfill her duties as a language arts teacher. Only the skills necessary to perform the job are determinative.
If an employee can show that he or she is performing "substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions" then the burden is on the employer to prove an affirmative defense. This could be based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any bona fide factor other than gender, race or ethnicity, such as education, training, or experience. The employer must prove that the bona fide factor is job related with respect to the position in question, and is consistent with a business necessity.
What is a business necessity?
The law defines it as an "overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve."
The law further provides that "[t]his defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential."
Anti-retaliation
Have you tried to find out what your peers are earning? Have you complained to or raised equal pay for equal work with your supervisor, human resources, or another superior at work?
Remember, an employer cannot prohibit an employee from disclosing their own wages, discussing the wages of others, asking about someone else’s wages, or encouraging other employees to exercise their rights under this law.
California law protects you against any retaliation or discrimination because you took action to invoke or assist others in enforcing this law.
Knowledge is power.
DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.