In 1949, California enacted a law to ensure that women were paid the same as men for the same work. Sixty-six years later, the California Legislature amended that law in a way that might actually close the persistent wage gap women workers face.
The Fair Pay Act of 2015, signed by California Governor Jerry Brown in early October, mandates that California employers pay men and women the same wages for “substantially similar work” as measured by skill, effort, level of responsibility, and working conditions. This is a change from the old law which required equal pay for “equal work,” as that mandate left employers with too much leeway to argue that men and women didn’t perform “equal work.”
Under the new law, employers bear the burden to show that any differences in pay for members of the opposite sex for “substantially similar work” are based only on specific criteria: a seniority system; a merit system; a system that measures earnings by quality or quantity of production; or a factor other than the sex of the worker, such as education, training or experience. On that last point, employers retain the burden to show that the sex of the worker was not a motivating factor and that the wage differential was a business necessity with no viable alternatives.
The new law also eliminated geographic restrictions when comparing wages for “substantially similar work.” Before, a woman who managed a retail store in one part of California had no basis to argue that she should be paid the same as a male manager of a similarly-sized store owned by the same company, but located in a different part of the state. Now, if the two managers oversee substantially similar operations and have substantially similar responsibilities, they must be paid the same salary.
The Fair Pay Act of 2015 responds to a growing body of research showing that California women working full-time earn a median of 84 cents for every dollar earned by full-time employed California men. For Latina and African-American women, those figures are much lower, at 64 cents and 44 cents, respectively, for every dollar earned by a white man. In the technology sector, men with a B.A. degree earn 40 percent more than women with the same educational degree. That figure jumps to 73 percent for men with advanced graduate degrees.
But these studies only tell the story in a general way. For employees to ensure wage equity in their company, they need to know what others are being paid. That’s why the new law specifically grants employees the right to talk about their wages, and encourage others to do the same, without fear of retaliation or discipline by employers. Many companies strongly discourage employees from talking to their co-workers about their wages, as a way to keep employees from finding out how unfair the pay scale is. Not anymore.
The new law strengthened the remedies available to employees for violations of the Act. Now, in addition to having a claim for wage discrimination, an employee may also pursue a claim against her employer for retaliation if the employer penalizes her for exercising her rights under the law. Employees who believe they have suffered a violation of the Fair Pay Act of 2015 may either pursue administrative remedies with the California Department of Labor Standards Enforcement or a file a lawsuit in court.