This week’s question comes from Amanda in San Francisco, who asks:
Q: “I work for a fast-growing company with offices in San Francisco and San Jose. We have been extremely busy. My manager told me I am excellent in my position but recognized my department needed help to handle the workload. I was ecstatic. My manager even asked me to meet with the job finalists and offer my opinion on whom we should hire. I like the employee the company hired and gladly trained him over the past few weeks. Everything was fine until I discovered that my employer is paying my new co-worker more than me, by several thousand dollars. We have the same duties and responsibilities. Since I helped with the interviews, I know I have more experience in our industry than him, and we both have college degrees. He works out of our San Jose office, and I work in our San Francisco office. Other than office location, the only difference I can see is that he is a man and I am a woman. Are they allowed to do this? I want to complain to my manager but I’m also worried that I will get in trouble because I inquired about my co-worker’s salary.”
A: Thank you for your question, Amanda. On Jan. 1, 2016, the California Fair Pay Act went into effect and significantly expanded the law against gender pay inequality in California.
Under the new law, employers must pay men and women equally for performing “substantially similar” work under similar working conditions. The new law defines “substantially similar” work as that which requires similar skills, effort and responsibility. 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.
There are exceptions to this rule: Employers must prove the difference in wages is based on seniority, merit, a system that measures earnings by quantity or quality of work production, or a factor that has nothing to do with gender, such as a difference in education, training or experience that is directly related to the job in question. Nevertheless, the Fair Pay Act ensures that any legitimate factors relied upon by the employer for the pay differential are applied reasonably and account for the entire pay difference. This makes it more difficult for employers to justify unequal pay between men and women.
The new law also eliminated the requirement that the jobs compared must be in the “same establishment.” This means employees will be able to challenge unfair wage differentials across worksites, not just in their own locations.
Although Labor Code Section 232(a), (c) already prohibited employers from requiring employees to “refrain from disclosing the amount of their wages” or discriminating against any employee who “discloses” the amount of their wages, the Fair Pay Act further discourages pay secrecy policies.
The new law also expands protection against retaliation by explicitly prohibiting discrimination and retaliation against workers who invoke or assist in any manner in the enforcement of the law, including engaging in discussions among co-workers about wages that they and others are earning.
I recommend that you show this article to your manager or human resources department and ask about the reasons behind the pay differential between you and your co-worker. If what you suspect – that you are being paid less than your co-worker of the opposite sex despite performing substantially similar work – is true, try to resolve the issue amicably. If that does not work and/or if they retaliate against you for bringing this up, contact a trial lawyer to protect your rights.