By Deborah Dixon
Dixon, Diab & Chambers
California and federal laws prohibit employers from discriminating against any employee based on gender, color, national origin or other statutorily protected class. California also prohibits employers from discriminating against employees in its pay of employees based on race, ethnicity or on the basis of sex. In late 2015, California amended its Labor Code to prohibit employers from paying employees of different sex, race or ethnicity differently for doing substantially similar work. (Cal. Labor Code § 1197.5.) This unique statute is important because it: (1) requires employees are paid the same for doing similar work, regardless of title; and (2) protects employees from retaliation for speaking to each other about their wages.
Labor Code section 1197.5, which is referred to as the Equal Pay Act, makes it illegal for employers to pay employees lower wages than the wages paid to employees of the opposite sex or a different race or ethnicity for substantially similar work. If an employee wins their case against the employer by showing she was paid less than a male colleague for doing “substantially similar work” regardless of title, she is entitled to be paid back-wages for two-years prior at the rate she should have been paid, including interest. And she could get additional damages referred to as liquidated damages.
Prior to the Labor Code protections, employers could also fire employees for discussing their pay, or openly prohibit employees from discussing their pay with co-workers, violation of which could subject the employee to discipline. This effectively kept employees quiet about their pay as they were scared to be disciplined if they spoke about their pay with a coworker. As a result, women in particular, did not know they were being underpaid compared to their male coworkers.
California’s protections are a useful tool to ensure employers are paying their employees the same wages, regardless of sex, race or ethnicity. Sometimes cases alleging violations of the Equal Pay Act are filed as a class action, which means one or more employees represent all the other employees who are like them and are being underpaid because of their sex, race or ethnicity. This does not require all employees employed by the same employer to file a separate lawsuit, but instead allows for one or more employees to file it on behalf of all other employees “similarly situated.” Once the court conditionally certifies the class action, all employees who are similarly being underpaid can get notice of the lawsuit and “opt in” so they can get repaid if the lawsuit is successful. These class actions can be helpful in protecting many employees’ rights in one lawsuit.