This week California enacted the California Fair Pay Act. The California Fair Pay Act will enhance existing laws designed to lessen the pay gap between men and women. “Sixty-six years after passage of the California Equal Pay Act, many women still earn less money than men doing the same or similar work,” said California Governor Jerry Brown. “This bill is another step toward closing the persistent wage gap between men and women.”
Nationally, women earn, on average, $0.78 for every $1.00 that men earn. That difference is slightly better in California where, on average, women earn $0.84 for every $1.00 that men earn. This pay gap has existed for decades across the nation. The California Fair Pay Act has some provisions that may help to decrease the pay gap in California because the law addresses some of the bigger problems with the existing federal Equal Pay Act. As discussed below, Maine’s equal pay law is also better than the federal Equal Pay Act but, in some respects, it is not as strong as the new California Fair Pay Act.
The same “establishment”
Under the federal Equal Pay Act, one reason that an employer may pay a woman less than a man for the same work is if the two employees work in different “establishments,” or work sites. Under the new California Fair Pay Act, an employer cannot pay a woman less than a man merely because she works in a different worksite unless the employer can prove that one of the exceptions in the law applies, such as situations where the man and woman earn different amounts because of a seniority system. Given the rise of technologies that tie different worksites together through email, instant messaging, cloud based databases, remote computer access, and the like, California’s Fair Pay Act takes a more realistic approach to combating pay discrimination than the federal Equal Pay Act. Maine’s equal pay act suffers from the same deficiency as federal law on this issue; it also permits pay discrimination when the workers work at different worksites. Maine lawmakers should observe how California’s Equal Pay Act works to determine whether strengthening Maine’s law would help reduce the gender pay gap in Maine.
Protection for workers who discuss their pay with each other
The California Fair Pay Act also prohibits employers from retaliating against employees who talk with co-workers about their wages. Maine’s equal pay law has a similar provision but the federal Equal Pay Act does not. It is important for employees to have the ability to discuss their wages with one another otherwise a woman may never discover that her employer pays her less than male co-workers who do the same job. Indeed, that very issue occurred in the famous Supreme Court case Ledbetter v. Goodyear which spurred passage of the Lily Ledbetter Fair Pay Act.
How similar must two jobs be for men and women to have to get paid the same?
The federal Equal Pay Act requires employers to pay women the same as men when they perform “equal” work in jobs that require “equal skill, effort, and responsibility.” Proving that work is “equal” and that two jobs require “equal” skill, effort, and responsibility” is very difficult for employees and it is one reason why federal law is not as effective as it could be at combating pay discrimination. Employers can sometimes escape liability for pay discrimination when they can show that two jobs are slightly different even though the differences do not really explain why the two workers should earn different amounts. Maine’s law is more employee friendly than federal law and only requires the worker to prove that s/he worked a job that was “comparable” to a higher paid worker of the opposite sex. Instead of “equal” or “comparable,” California’s Fair Pay Act uses the term “substantially similar.” Thus, in this respect, Maine’s and California’s laws are both more employee friendly than federal law.
Like the federal Equal Pay Act, California’s Fair Pay Act and Maine’s equal pay law provide exceptions to the rules against pay discrimination. Employers who can show that they fall into one of these exceptions can avoid liability for pay discrimination. These exceptions give employers an opportunity to show that the pay discrimination is due to a legitimate factor, such as seniority. However, the defenses under California’s and Maine’s laws are more employee friendly than the defenses under the federal Equal Pay Act. California’s law is more employee friendly than federal and Maine law, in part, because California’s law requires an employer to show that it “reasonably” applies legitimate factors that supposedly explain the gender pay disparity. California’s law, unlike Maine and federal law, also requires employers to show that these legitimate factors account for the entire pay difference.
In the end, these laws do not have any effect if they are not enforced. And that is where law firms like the Maine Employee Rights Group factor into the equation. The Maine Employee Rights Group is committed to enforcing pay discrimination laws and holding employers accountable when they violate these laws. If you are a Maine worker who is paid less than co-workers of the opposite sex and you believe the pay differential is due to your sex, you should contact the Maine Employee Rights Group to learn more about your rights.