The California Fair Pay Act: Closing the Wage Gap for Women
SB 358 (Jackson) California Fair Pay Act
Summary: The California Fair Pay Act will strengthen the state's existing equal pay laws by eliminating loopholes that prevent effective enforcement and by empowering employees to discuss their pay without fear of retaliation.
Background: Despite the 1949 passage of the California Equal Pay Act (EPA), working women in California continue to make significantly less than men for the same or substantially equivalent work. As a group, women working full-time in California lose more than $33 billion each year due to the wage gap.
In 2013, a woman in California working full-time, year-round, earned a median of 84 cents for every dollar earned by a man. The problem is even worse for most women of color: for example, African American and Latina women working full-time, year-round in California make a median of just 64 cents and 44 cents, respectively, for every dollar earned by white men. California has the worst Latina gender wage gap in the nation.
Pay discrimination often is "hidden from sight," and pay secrecy undermines attempts to reduce the wage gap. Studies have found that a majority of employees are either prohibited or actively discouraged from discussing their pay. Workers are less likely to inquire about pay if they fear retaliation from their employer for doing so. This secrecy means that workers are unlikely even to discover ongoing pay discrimination, much less be able to fight against it.
Existing Law: There are state and federal laws that attempt to address pay inequality, including the CA EPA and the almost-identical federal Equal Pay Act. However, the California Labor Code provisions codifying the CA EPA (which was first enacted in 1949 and last amended in 1985) contain out-of-date terms and loopholes that make it difficult to enforce in practice.
For example, the CA EPA’s "same establishment" provision could prevent a woman who works at a facility in Oakland, CA, from comparing her pay to that of a man who works in the same position and for the same company, but at a facility in Berkeley, CA. The ambiguous and overly expansive "any bona fide factor other than sex" defense allows employers to rely on after-the-fact and irrelevant non-sex-based factors to explain away pay discrimination.
In addition, while other Labor Code provisions prohibit retaliation against employees for "disclosing" their own wages, there currently is no specific protection for inquiring about the wages of other employees, even if the purpose of the inquiry is to exercise one's right to be paid equally for equal work.
This Bill: SB 358 will help eliminate the California gender wage gap by amending the CA EPA in the following ways:
• Ensuring that employees performing substantially equivalent work are paid fairly by requiring equal pay for work "of comparable character" and eliminating the outdated "same establishment" requirement;
• Clarifying the employee's and employer's burdens of proof under the CA EPA;
• Preventing reliance on irrelevant and ill-defined "factors other than sex" to justify unfair pay differentials by replacing the "bona fide factor other than sex" catch-all defense with more specific affirmative defenses;
• Ensuring that any legitimate, non-sex related factor(s) relied upon are applied reasonably and account for the entire pay differential;
•Discouraging pay secrecy by explicitly prohibiting retaliation or discrimination against employees who disclose, discuss, or inquire about their own or co-workers' wages for the purpose of enforcing their rights under the CA EPA.
Contact Information:
Jennifer Reisch, Equal Rights Advocates jreisch@equalrights.org (415) 575-2384
Mariko Yoshihara, CA Employment Lawyers Assn. mariko@cela.org (916) 340-5084
Rachael Langston, LAS - Employment Law Center rlangston@las-elc.org (415) 864-8848 Summary Contact Information Background Existing Law This Bill
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