• Marc Kroop

Employee Rights To Equal Pay

Updated: Jan 27, 2018

California has recently taken a number of affirmative steps to protect employee wages and prevent discrimination in pay for employees. The California Equal Pay Act, enacted in 2016, was passed in an attempt to help close the wage gap between male and female employees and prevent discrimination in pay in the workplace. This act was expanded in 2017 to include prohibitions in discrimination in pay based upon an employee's race or ethnicity.

While the law and its amendments do not do away entirely with the concept of varying pay that may result from an employee's merit, an employer's system based upon production or seniority, or a bona fide factor other than sex, race or ethnicity (higher levels of education, training or experience), there are now significant additional protections for employees who assert that their pay has been reduced due to their sex, race or ethnicity.

To begin with, in making a claim under the California Equal Pay Act, an employee may assert that they were subject to a lower wage/salary than another employee(s) of a different sex, race or ethnicity that work(s) in a substantially similar position. The positions that are being compared do not need to be identical. Instead, the positions that are being compared only need to be similar in skill, effort and responsibility and be performed under similar working conditions.

For employers there are additional record keeping requirements that require employers to maintain records of employee wages, wage rates, job classifications and other information regarding terms and conditions of employment for a period of three years. This is important because an employee may assert a claim under the California Equal Pay Act going back two years and the existence of such records are integral to any investigation of potential violations.

If successful in bringing a claim under the California Equal Pay Act, an employee can recover the difference in pay, interest and an equal amount as liquidated damages. Moreover, an employee who prevails in a California Equal Pay Act case is also entitled to recover reasonable attorneys fees and costs against the employer.

The law also prohibits an employer from enacting policies preventing an employee from disclosing their wages, discussing the wages of others or inquiring about others wages. The act further prohibits employers from retaliating against an employee(s) who bring a claim(s) asserting a violation(s) of the law. The act provides for additional damages for any violation by the employer of the act's anti-retaliation provision.

Claims for violation of the California Equal Pay Act may be brought by an employee(s) in a variety of forums. An employee(s) may elect court action or alternatively file various administrative claims. This includes a potential claim with the California Labor Commission and/or a charge of discrimination with the California Department of Fair Employment & Housing ("DFEH").

While employees should check with their own hired counsel, we typically recommend that our clients file any concurrent charge(s) of discrimination in the workplace with the California DFEH, (www.dfeh.ca.gov), within one year of the alleged violation. This will serve to preserve any overlapping claims by the employee of discrimination based on sex, race or ethnicity or retaliation that may also be actionable under the California Fair Employment & Housing Act.

Employers should immediately review and update their policies and procedures regarding job postings, job applications, interview processes, job classifications, wage disclosures and employee handbooks to comply with this law. In addition, recently, California enacted additional legislation that prohibits an employer from inquiring about an applicants prior salary history. Taken together, these laws provide significant protection for employee rights with regard to wages to ensure equal pay. As a result, we expect that equal pay claims will be the subject of numerous individual or class action cases by employees against their employers going forward.

Since 1993 Kroop Labor Law's managing attorney, Marc G. Kroop, has been an advocate for employee rights and has dedicated his practice to preventing discrimination in the workplace. If you have concerns about your wages or you have been subject to discipline for discussing or disclosing wages, you may contact Mr. Kroop at (925) 989-8264 Otherwise, send us an email to info@krooplaborlaw.com We will immediately respond to your concerns in writing.

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