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Bill would require equal pay for ‘substantially similar’ work

By   /   Friday, September 11th, 2015  /   Comments Off on Bill would require equal pay for ‘substantially similar’ work

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What was once a taboo question in the workplace may become a more explicit employee’s right.

“How much does my co-worker make?”

Even though workers are allowed to ask such a question under the protection of the National Labor Relations Act enacted in 1935, employees were often told — either overtly or implicitly — to avoid it.

Some employers have practiced dodging or dismissing the inquiry altogether. That will change if Gov. Jerry Brown signs the California Fair Pay Act, which aims to close loopholes in existing anti-gender discrimination laws to ensure equal pay between genders.

Not only would the bill, penned by Sen. Hannah-Beth Jackson, D-Santa Barbara, allow the discussion of pay among co-workers, it would force bosses to honestly respond to an employee’s inquiry on peers’ wages.

The idea is to close the gender wage gap in both public and private businesses. According to a recent report in JAMA, the journal of the American Medical Association, the average salary gap is about $5,000 nationwide. Women in California earn an average of 84 cents for every dollar men make, Jackson said. It’s even worse for blacks and Latinos, who earn 64 cents and 44 cents respectively, she added.

“We have to ensure that we move beyond mere job titles and look at what employees actually do,” Jackson told the Business Times. “Jobs don’t have to be identical to earn equal pay.”

Jackson’s bill goes a step further than the Equal Pay Act of 1949, which requires that men and women in the same workplace be given equal pay for equal work. If the governor signs the bill, men and women must be getting the same pay for “substantially similar” work. It is the employer’s responsibility to demonstrate that wages are comparable across related fields.

Substantially similar work could be housekeeping versus janitorial jobs – as long as they require similar skill, effort and responsibility, and are performed under comparable conditions.

The definition of “substantially similar” could be a sticking point, said Trevor Large, a founding partner at Santa Barbara-based Buynak, Fauver, Archbald & Spray, who deals with employment law. It’s like comparing apples to oranges, he said.

“I would expect to see an increase in litigation as a result of this,” said Large, adding that there haven’t traditionally been a lot of legal disputes in the tri-county region regarding gender pay gaps. “Not only are the rules different with the substantially similar comparison, employers have the burden to show their reasoning.”

The bill stipulates that bosses would have to explain and substantiate wage differentials through seniority, merit, quality or quantity of production, education, training and experience, or a “bona fide factor other than sex.”

“Most employers who have these systems probably don’t have them in writing,” Large said. “It may be harder for larger businesses that employ multiple classifications of workers. They would have to take a look at different classifications and determine how raises are given.

“If I was an employer, I would be assuming the worst-case scenario, take a hard look at pay scales and make sure you can justify why people are getting paid what they’re paid.”

In other words, inconsistency would be an issue, Large said. Businesses would be wise to make sure they clearly outline a merit or seniority system in writing and retrain management on employee reviews to ensure they are using the same standards, he said.

The bill’s opposition argues that it would increase frivolous lawsuits against small employers and only pad attorneys’ pocketbooks rather than solve workplace problems.

“This isn’t a bill looking for litigation, it is a bill that is determined to create equity,” Jackson said.

Others argue that the bill should have a wider scope to include the LGBT community and workers with disabilities.

The California Chamber of Commerce dropped its initial opposition to the bill when Jackson clarified employers’ burden of proof and what they could rely on to substantiate a pay difference, such as more experience or education.

The bill was also amended to reflect a three-year record retention requirement for employers rather than two years and a one-year statute of limitations for employee claims.
Employees can file complaints with the State Division of Labor Standards Enforcement, which will keep workers’ names private when investigating.

The bill has earned both the Assembly’s and the Senate’s approval and has yet to be signed as of press time.

Other bills by regional lawmakers

Jackson’s SB 295, which would require annual pipeline inspections, has a final vote in the Senate this week.

State Assembly member Das Williams, D-Santa Barbara, also has a bill, AB 864, which would mandate that new technology such as automatic shut-off valves be used on pipelines. It also has a final vote left in the Senate.

Jackson’s SB 414, which would allegedly make oil spill response faster and more effective, passed the Assembly and has two votes left before being sent to the governor.

Jackson’s SB 142, which prohibits drones from trespassing on private property and invading Californians’ privacy, passed the Senate and Assembly but was vetoed by the governor Sept. 9.

The fate of the bills will be decided by Sept. 11, the last day of the legislative session.

State lawmakers shot down a bill that would increase the minimum wage to $11 per hour next year and $13 an hour in 2017. But the minimum wage hike will be on lawmakers’ agenda next year and legislators may explore bumping up wages by region, rather than across the state.

While the current minimum wage in California is $9 an hour, it will jump to $10 in January. The city of Los Angeles preempted the hike with their own, raising it incrementally up to $15 an hour by 2020, which has sent some small businesses fleeing to Ventura County.

Jackson’s SB 788, which would ban oil drilling in state waters off the coast of Vandenberg Air Force Base, was held in the Assembly Appropriations Committee.

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