BILL ANALYSIS Ó
SB 358
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Date of Hearing: August 19, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 358
(Jackson) - As Amended July 9, 2015
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill makes various changes to the California Equal Pay Act
related to gender wage inequality. Specifically, this bill:
SB 358
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1)Modifies an existing prohibition on sex-based wage
discrimination by prohibiting an employer from paying any of
its employees at wage rates less than the rates paid to
employees of the opposite sex for "substantially similar work"
(as opposed to "equal work") when viewed as a composite of
skill, effort, and responsibility, and performed under similar
working conditions, except where the employer demonstrates:
a) The pay differential is based upon a seniority system; a
merit system; a system that measures earnings by quantity
or quality of production; or a bona fide factor other than
sex, such as education, training, or experience. A bona
fide factor applies only if the employer demonstrates that
the factor is not based on or derived from a sex-based
differential in compensation, is job related with respect
to the position in question, and is consistent with a
business necessity, as defined. This defense shall not
apply if the employee demonstrates that an alternative
business practice exists that would serve the same business
purpose without producing the wage differential.
b) Each factor that is relied upon is applied reasonably.
c) The one or more factors relied upon account for the
entire wage differential.
2)Eliminates a requirement in the existing Equal Pay Act that
the claim of discrimination be based upon a comparison of the
wages of employees in "the same establishment."
3)Increases, from two years to three, the period of time that
the employer must maintain records relating to wages and job
classifications, and other conditions of employment of the
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employees.
4)Prohibits an employer from taking any adverse action against
an employee that seeks to enforce the provisions of the Equal
Pay Act. Provides that an employer cannot prohibit an
employee from disclosing the employee's own wages, discussing
the wages of others, inquiring about another employee's wages,
or aiding or encouraging another employee to exercise his or
her rights under the provisions of the Equal Pay Act.
5)Extends the existing enforcement mechanisms, as specified, for
wage discrimination under existing law to claims for
retaliation, and provides a one-year statute of limitations
for retaliation claims.
6)Authorizes any employee who has been discharged, discriminated
or retaliated against in violation of the Equal Pay Act to
recover, in a civil action, reinstatement, lost wages and work
benefits, including interest, and appropriate equitable
relief.
FISCAL EFFECT:
One-time administrative costs of approximately $127,000 (Labor
Enforcement Compliance Fund - LECF) and ongoing costs of
approximately $120,000 (LECF) for the Department of Industrial
Relations to monitor and enforce provisions of the bill.
COMMENTS:
1)Purpose. This bill, sponsored by Equal Rights Advocates,
California Employment Lawyers Association and Legal Aid
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Society-Employment Law Center, enacts the California Fair Pay
Act to discourage pay secrecy by explicitly prohibiting
retaliation or discrimination against employees who disclose,
discuss, or inquire about their own or co-workers' wages for
the purpose of enforcing their rights under the Equal Pay Act.
2)Background. According to the author, working women in
California lose over $33 billion each year due to the wage
gap. In 2013, the average woman in California working
full-time, year-round earned a median of 84 cents to every
dollar earned by a man. Wage discrimination is often hidden,
and pay secrecy undermines attempts to reduce the gender wage
gap. Workers who lack information about pay, or who are
prohibited from discussing or asking about the wages of other
employees doing the same or substantially equal work, cannot
discover pay discrimination. Workers are also less likely to
inquire or complain about pay disparities if they fear
punishment or retaliation from their employer for doing so.
California enacted the California Equal Pay Act in 1949 with
"equal pay for equal work" language. Although current law
prohibits retaliation against employees for disclosing their
own wages, there is currently no specific protection for
inquiring about the wages of other employees, if the purpose
of such inquiry is to exercise one's right to be paid equally
for equal work.
3)Oppose unless amended. The California National Organization
for Women (CA NOW) opposes this bill unless amended to include
protections for wage discrimination for categories such as
race, ethnicity, LGBTQ and disability status. CA NOW
acknowledges the bill goes a long way towards addressing the
substantive inequities of the original Equal Pay Act, however,
these improvements "must be accompanied by a broadening of
claimants to include all forms of invidious wage
discrimination." According to CA NOW, it is wrong to deny
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certain employees full protection under the California Equal
Pay Act because these groups are afforded protections from
other anti-discrimination laws. What makes the Equal Pay Act
different from other anti-discrimination laws is the burden of
proof placed on employers. Therefore, Cal NOW opposes this
bill, unless amended to include protections for wage
discrimination based on these additional categories.
Analysis Prepared by:Misty Feusahrens / APPR. / (916)
319-2081