2018 Employment Law Forum Pay Equity Panel

Panelists Moderator: Genie Harrison, Esq., Principal, Genie Harrison Law Firm, APC Panelists: Phyllis W. Cheng, Esq., Mediator & Arbitrator, ADR Services, Inc. Michelle Lee Flores, Esq., Partner, Akerman LLP Chen Song, Ph.D., CFA, Senior Vice President, Nathan Associates, Inc. Twila S. White, Esq., Law Office of Twila S. White

overview The wage gap Development of fair pay laws Federal law California law California Fair Pay Act Challenges in implementation Conflicts with other statutes Looking ahead Counseling clients Litigation hot topics

gender-based wage gap

gender pay gap by state

occupational segregation

development of fair pay laws: federal Equal Pay Act of 1963 equal pay for equal work Title VII of the Civil Rights Act of 1964: bars sex discrimination in employment, including compensation Lilly Ledbetter Act of 2009 resets 180-day statute of limitations for each paycheck S.819 - Proposed Paycheck Fairness Act restrict use of bona fide factor defense to wage discrimination claims, enhance nonretaliation provisions make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee's wages, increase civil penalties for violations of equal pay provisions training by EEOC and OFCCP DOL grant program on negotiations skills training for women and girls, conduct studies on pay disparity, publicize wage discrimination create Secretary of Labor's National Award for Pay Equity in the Workplace require EEOC to issue regulations for collecting data from employers

development of fair pay laws: california California Equal Pay Act of 1949 equal pay for equal work Fair Employment and Housing Act (originally Fair Employment Practices Act of 1959) prohibits sex discrimination, harassment and retaliation California Comparable Worth Task Force, 1984-85, majority and two minority reports, causes and solutions: Market forces ———> continue to rely on evolving market forces Some discrimination ———> excise the discriminatory elements or conduct Systemic discrimination ———> conduct job evaluations and set compensation for all jobs based on skill, effort, responsibility and working conditions (with limited exceptions)

california fair pay act California Fair Pay Act of 2015 as amended addresses pay equity for “substantially similar” work based on gender, race and ethnicity wages for substantially similar work based on composite of skill, effort, and responsibility, and performed under similar working conditions exceptions: seniority, merit, quantity or quality of production, and bona fide factor other than sex, race, or ethnicity such as education, training, or experience prior salary cannot alone justify pay disparity eliminates “same establishment” for wage comparisons authorizes civil actions employees have right to disclose, inquire about, discuss and organize around wages no retaliation extends record keeping to three years

California Equal pay act: challenges Challenges in implementation Conflicts and coordination with other statutes Cal. Labor Code § 432.3 (January 1, 2018): employer may not seek or rely on applicants’ prior salary history local ordinances San Diego Equal Pay Ordinance (July 31, 2017): requires all city contractors to certify equal pay to their workers regardless of gender or ethnicity San Francisco Parity in Pay Ordinance (January 1, 2018): prohibits employers in the city from asking job applicants about their salary history or from considering earnings information in determining whether to hire and what salary to offer an applicant

looking ahead Counseling clients employers employees Litigation hot topics Concluding thoughts