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Don't let salary history justify unfair pay in the future

The wage gap between men and women has been the topic of divisive political and economical debates for several years. And although it is well documented that women -- particularly women of color -- earn less than men for the same jobs, that gap has yet to be closed.

Over the years, state and federal laws have been enacted in an effort to address discrimination in pay. The California Equal Pay Act (also referred to as the "California Fair Pay Act"), was expanded by our legislature.  

It is the broadest fair pay act in the country. Our state's Fair Pay Act, Labor Code § 1197.5, is similar but not identical to the federal Equal Pay Act (29 USC § 206(d).  A California employee suing under the California Fair Pay Act needs to show that the employer paid a male employee more than a female employee "for substantially similar work."  Effective January 1, 2017, California expanded the protections under the Act with its progressive approach to closing the wage gap by amending the law to provide even greater protection.  

The amendment:1) forbids employers from solely considering an applicant's salary history, such that "prior salary shall not, by itself, justify any disparity in compensation", and 2) the requirement of equal pay for substantially similar work under similar working conditions expands beyond gender to include race and ethnicity.  Before this law went into effect, the wage gap was perpetuated by discrepancies in the past. When employers look at salary history, they likely see a woman was earning less than a man. In too many cases, the employers were then setting salaries based on that history, making it far more likely that a woman would continue to earn less than a man for the same work.

Thus the amendment bars employers from justifying wage disparities using only an applicant's salary history.

The intent is for employers to pay men and women fairly and to prevent wage discrimination against female employees. Should an employer violate an employee's rights, the employer can be held accountable for civil damages suffered by the employee.

Salary histories have always been something of a hindrance for job applicants looking to earn more and have a more level playing field in salary negotiations. One state (not California) has gone so far as to bar employers from asking about an applicant's salary history until a job offer has been made.

This is certainly a step in the right direction in terms of preventing wage discrimination in California. However, there will still be employers who discriminate against workers and try to get away with it. Rather than allow your rights to be violated, you can work with an attorney to take legal action if you feel you are being unfairly compensated in your workplace.

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