Fair Pay Act Heads to Governor for Signature

On August 31, 2015, the California Senate unanimously passed SB 358. Titled the "Fair Pay Act," this bill amends California Labor Code section 1197.5 which prohibits wage disparities based on gender. SB 358 strengthens the procedures and protections for employees who report a violation of section 1197.5. Importantly, section 1197.5 applies to public employers. With these new protections, public employees may use section 1197.5 more efficiently to challenge discrepancies in wages between genders within classifications.

The Fair Pay Act requires an employer justify a disparity in wages between men and women who perform the same job. A wage differential is appropriate when the employer reasonably applies one of the following factors: 1) a merit system; 2) a seniority system; 3) a system which measures earnings by quantity or production; or 4) a bona fide factor other than sex such as education, training, or experience. For the last element, the employer must demonstrate the factor is not based on or derived form a sex-based differential in compensation, is job related with respect to the questioned position, and is consistent with a business necessity. If the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential, then the employer may not use this factor as a defense.

The Fair Pay Act also adds additional protections for employees who complain about wage disparities. Employers may not fire, discriminate, or retaliate against an employee who invokes the Fair Pay Act's provisions. Employees may disclose their own wages, discuss the wages of others, and inquire about another employee's wages without fear of reprisal.

To enforce the Fair Pay Act, an employee can either file a confidential complaint with the Department of Labor Standards Enforcement or bring a civil action. Any civil action must be commenced within one year of the alleged violation.

This bill is one of the most aggressive attempts in the country to remedy the wage disparity between genders. According to the Los Angeles Times, women in California on average make 84 cents to every dollar earned by a man. Nationally, the average is 74 cents. Women of color are even more disadvantaged with Latinas making only 44 cents to every dollar earned by a man.

Assemblymember Eggman Introduces Bill to Slash Interest Due on Debts to Employees, Others

Under current law, when employees or labor associations win a judgement against a public entity, the agency has to pay interest on the debt until they pay it off.  The interest rate is set at 7% or 10%, depending on the type of case.  Now Assemblymember Susan Eggman has introduced AB 748 to let cities and counties pay minimal interest on these debts, jeopardizing employees' and unions' rights across the State.

Eggman's law would cap the interest a public agency has to pay at no greater than the rate on the "Pooled Money Investment Account."  That rate has been less than 1% for the past three years.  As a result, employees who are illegally terminated or denied their wages would receive much less interest on their awards than the interest they have to pay on their personal loans, mortgages, and credit card payments.  Cities win, employees lose.  Eggman previously served on the Stockton City Council were she voted to withhold employees' wages, even though they were guaranteed by labor contracts.

EEOC: Private Security Company Discriminated Against Older Male Security Guards

On September 27, 2011, the federal Equal Employment Opportunity Commission filed a complaint against Trinity Protection Services, Inc., a private security company.  The complaint alleges Trinity discriminated against older, male security guards in favor of younger, female guards.  The lawsuit, EEOC v. Trinity Protection Services, Inc., Case No. 2:11-cv-02535-KJM-DAD, was filed in the Eastern District of California.

The complaint alleges that in 2008 seven security guards at the company's Sacramento location did not reach a qualifying score on an arms requalifying test and were terminated by Trinity.  The men, ages 66 to 73, were told they had to wait at least six months to retest and reapply.  The women, ages 28, 29 and 50, however, were invited to retest earlier and reinstated in their positions.  According to the EEOC, this practice constituted unlawful age and sex discrimination.  In a press release, EEOC San Francisco District Director Michael Baldonado said, “Taking the initiative to diversify your work force in terms of gender cannot be done at the expense of the rights of other employees. Trinity’s invitation to requalify should have been extended to all the workers affected, not just the younger women.”  The lawsuit seeks an injunction, damages and a federal court order Trinity implement policies, practices and programs to eradicate discrimination at the company.