California recently enacted new standards to combat discriminatory pay practices. California’s Fair Pay Act prohibits paying any employee less than the amount paid to employees of the opposite sex, race or ethnicity for doing “substantially similar work.” Employers have the burden of demonstrating that pay differential are based entirely and reasonably upon:
- Seniority system, merit system, or system that measures earning by quantity or quality of production; or
- Bona fide factor that is not based on or derived from sex-based differential compensation and that is job-related and consistent with business necessity.
Fair Pay Act Presentation
I recently attended a great presentation sponsored by the Alameda County Bar Association where Hillary Benham-Baker, Jamie Rudman and Carolyn Rashby did an excellent job describing the interplay between the various state and federal statutes, regulations and orders regarding equal pay. Jamie described a speaking engagement where Julie Su, California’s Labor Commissioner, discussed enforcing California’s Fair Pay Act. The Labor Commissioner discussed what questions Deputy Labor Commissioners would typically ask during Fair Pay Act investigations to determine what constitutes “substantially similar work.” I asked Jamie’s permission to share the information, as they represent excellent questions employers should ask themselves when evaluating whether they are complying with the law.
Fair Pay Act Questions To Determine What Constitutes “Substantially Similar Work”
· What are the actual tasks performed for each job? What percentage of time is spent on each?
· What experience, training and education are required for each job?
· What knowledge is required to perform each job?
· What kinds and amounts of physical and/or mental effort are required for each job? Is one job more physical difficult or stressful?
· What programs, equipment, tools or products are required for each job? What training is needed to use the programs, equipment, tools or products?
· What is the working environment? Does one job involve an exposure to hazards or damages?
· Does one job require supervision of other employees?
· What is the difference in terms of the job obligations, levels of authority and/or degrees of accountability?
· What are the programs, equipment, tools or products used for each job?
· What kinds and amounts of physical and/or mental effort required for each job?
Employers need to understand what constitutes substantially similar work so they can properly evaluate whether or why employees should be paid the same. Pay disparities must be justified by legitimate business reasons.
If you have questions about equal pay, fair pay or any other employment-related issues, contact me at your convenience.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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