Equal Pay Act and Fair Pay Act Attorneys in San Francisco
Even though our legal system has made many leaps in bringing gender equality at work, there are still many instances of earning gaps between males and females. This type of wage disparity exists in all professions and industries. In fact, studies show that women who work on a full time basis in the United States were paid 79% of what their male counterparts were paid. In our society, women are increasingly assuming the role of the main wage earner or the co-wage earner for American families and such pay disparities are becoming ever so glaring.
When California’s Fair Pay Act went into effect in January 1, 2016, it built on the Equal Pay Act which has been around for half a century. The new laws amended Section 1197.5 of California’s Labor Code as it relates to private employers. Employees now are lawfully empowered not only to get equal pay for equal work. Now, employers are forbidden from paying different genders of employees lower pay rates for “substantially similar work” when such work is viewed as a combination of skills, effort, responsibility, while performed under similar working conditions. The new law also permits employees to file unequal pay claims when their wage rates in any of the employer’s facilities and in any job category if the work they performed was substantially similar. In addition, employees may not disclose their wage gaps and discuss them with other employees. As such, employers are prohibited from retaliating against those employees.
What is Substantially Similar Work?
One of the keys of the new Fair Pay Act is the definition and standard of “substantially similar work.” Indeed, the law does not allow employers to pay their employees lower wage rates than their colleagues of another gender when all of the employees are doing substantially similar work. The law expands this reach into situations when the other employees had different job titles or qualifications if the work performed is substantially the same. This new criteria is bound to create much consternation for employers and should be a book for employees and their rights. It is vital that if you discover such pay disparities, that you notify an attorney within two years of when your discovery or the case will be barred per its strict filing deadlines. The only exception here is for an employee who finds out that his or her employer willfully (or knowingly) violated the equal wage law which permits an additional year after the cause of action took place.
What Does “Same Establishment” Mean?
With the new laws, there is more flexibility on how and when violations occurred and where. The Fair Pay Act removes the requirement that the wage disparity must occur within the same establishment, or facility. Now, employees can compare their wages to other similarly situated employees doing “substantially similar work” or of comparable character at other work locations and even for different job titles. The employees must be in the same company and their job duties must be similar. This means that a female employee in San Francisco may compare her wages to a male employee of the same company who works in either the same location or another similar position in Los Angeles or other cities all across the state.
Burden of Proof Shifts to the Employer
Another major change with the Fair Pay Act is that the employers must show that the wage differential claim is unjust. They must do so by showing that the wage disparity was based on a reasonably and permitted factor such as a merit-based system, seniority system, a system that measures earnings by quantity or quality of production, or a bona-fide factor other than sex/gender. The law explains that a bona-fide factor other than sex/gender may be education, training or experience and “shall apply only if the employer demonstrates that the factor is not based on, or derived from, a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity.” A “business necessity” is defined as “an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve.” But, the employee’s complaint may still succeed if she can demonstrate that an alternative business practice was available that would provide for the same business purpose without producing the wage disparity.
If there is a wage disparity, the employer must show what factors other than gender resulted in the wage differential. This means that the employer must establish that the factors that explain the pay differential are gender neutral, job related, and consistent with business necessity; that the employer applied those factors reasonably; and that those factors are consistent with business necessity. These are all objective factors and an employer that wishes to explain these most likely will need an expert witness.
Statute of Limitation – Deadline on Bringing the Complaint
The claim must be brought within two years (or three if employer was willful) I court by first filing the complaint with the Division of Labor Standards Enforcement of California’s Department of Industrial Relations. Then, it will be investigated, and if any validity is found in the claims the state government will initiate proceedings to collect all the wages and resulting damages. This is where a civil lawsuit may be added.
In addition, if you have been adversely affected by other employment related violations such as employment discrimination, harassment or retaliation, contact San Francisco area employment lawyers who focus on the representation of executives and employees. To discuss your case and explain what we can do for you, speak to our San Francisco based employment discrimination attorneys today for a free consultation at 877-789-9707.
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“Mr. Danz and Ms. Porter,Thank you very much for your legal assistance a few weeks back. The problems I was encountering at work were having an extremely adverse affect on every aspect of my daily life. Relationships with my fiancé, friends, and family were growing increasingly tense, and my overall daily outlook was grim as a consequence of not being able to see any viable options to remedy the situation. Your willingness to write, speak over the phone, and meet with me was extremely generous. Furthermore, the way in which you treated my family and I was overwhelming. In a calm, compassionate, and sincere fashion, you were able to explain to us very clearly several meaningful options in which to resolve the conflict I had with my employer. On the drive home from meeting with both of you, I felt for the first time in a long time, a sense of relief and renewed ability to enjoy the moment.
Equal Pay Act and Fair Pay Act Attorneys in San Francisco