Pay/Wage Discrimination
What is the California Equal Pay Act (“EPA”)?
The California Equal Pay Act (“EPA”) prohibits employers from paying its employees wage rates that are less than what it pays employees of the opposite sex (or of another race or ethnicity) for performing substantially similar work. EPA applies to all California employers, regardless of the number of employees a business has.
What “substantially similar work” mean?
“Substantially similar work” refers to work that is mostly similar in skill, effort, responsibility, and is performed under similar working conditions. The work does not need to be identical. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job.
For example, a female mathematics teacher and a male chemistry teacher performed substantially similar work, even though their work is not identical (i.e., each teaches different subjects, which requires different knowledge). Yet, the skill, effort, and responsibility are mostly similar—both jobs require similar levels of education, credentials, and ability to teach.
Because the inquiry into whether two jobs are substantially similar is very fact-specific and can be complex, please consult with an employment lawyer to determine if you are performing substantially similar work as your coworkers for less pay.
Can my employer fire or retaliate against me for reporting that I am getting pay less than other employees performing substantially similar work?
No. EPA prohibits an employer from retaliating against an employee for invoking her or his right under the law. Your employer cannot fire or demote you, or even reduce your hours, for complaining about unequal pay.
Can I ask my employer how much other employees are paid?
Yes, an employee can ask his or her employer how much other employees are paid; however, the law does not require an employer to provide that information.
Can my employer fire or retaliate against me for discussing my salary with my coworkers?
No. The California Labor Code prohibits an employer from firing or retaliating against an employee who discloses his or her wages. In addition, employers cannot require an employee to sign a waiver or other document denying the employee the right to disclose his or her wages or otherwise require that an employee refrain from disclosing his or her wages. Further, the law prohibits companies from implementing policies prohibiting employees from discussing their salaries or wages.
Can a potential employer ask me about my salary history during the interview process?
No. The California Labor Code expressly prohibits employers from seeking salary history, including compensation and benefits, from an applicant for employment. However, an employer may ask an applicant about his or her salary expectation for the position being applied for. Moreover, the law does not prohibit an applicant from voluntarily disclosing her/his prior salary or hourly wage.
Tips for Ensuring Equal Pay for Equal Work:
If an employer asks for your salary expectation during the interview process, do not base your asking salary on your prior salary. Rather, base your asking salary on the average market salary for someone with comparable experience in your industry. Doing so will ensure that if you were underpaid at your previous job you do not continue to be underpaid. Remember: potential employers cannot ask you what you earned at your previous job. Thus, the salary expectation you provide can be wholly independent of prior salaries.
Here are a few resources you can consult to determine your asking salary:
- Robert Half has great free guides that provide breakdowns of salaries based on experience and by city in various industries. The guides are limited to certain industries.
- Contact your college or university career services. Often, your college or university career services have access to average salaries from their alumni and can help you determine what your asking salary should be based on your experience, your level of education, the type of work you are doing, etc. Moreover, career services can provide you with tips for how to negotiate your salary. Generally, these services are free—you have already paid for these services with your tuition.
- Contact friends and former coworkers that work in your industry. While it might be uncomfortable to discuss money with friends and/or former coworkers, they are great resources to determine the value of your work.
- Looking at job postings on Indeed and other job recruiting sites can also give you an idea of what the market salary for your work is. Job posting sites are usually less helpful because not all jobs post salaries.
Final Thought:
You could have done everything right—work hard, be the best advocate for yourself and your work, and ask for the salary raises—and still be paid less than employees of the opposite sex or another race. Conscious and unconscious bias plays a major role in wage discrimination. Everything else being equal, between male and female employees (or employees of different races), the bias of decision-makers often results in higher pay for male employees.
If you discovered that you are being paid less for similar work, it is time to seek the help of an attorney that can fight for your rights and hold your employer accountable for wage discrimination. While California legislators have worked hard to establish policies to eliminate wage discrimination, these laws have no effect unless employees stand up to enforce the law and protect their rights.
If you believe you are a victim of wage discrimination, contact Jimenez Loayza, APC at (619) 320-5901 or online for a free consultation.
DISCLAIMER: This page is available for educational purposes only. The information provided in this page is to give you a general understanding of the law and not to provide specific legal advice. By using this page you understand there is no attorney-client relationship between you and Jimenez Loayza, APC. You should not substitute this page for competent legal advice from a licensed San Diego employment attorney, as the fact of your case may vary significantly.