California Labor and Employment Defense Blog

Has California Just Enacted the "Comparable Worth" Doctrine?

California and federal law both currently require equal pay for "equal work." 

On October 6, Gov. Jerry Brown signed into law the "California Fair Pay Act," which changes the requirement to include equal pay for "substantially similar work."   This key phrase is not defined except to note that it should be "viewed as a composite of skill, effort and responsibility" and should generally involve work performed under "substantially similar working conditions."  

As there is no definitive weight assigned to any of these "composite" factors, judges and juries will be entering uncharted territory in considering whether any two positions are "substantially similar."  For example, does a VP of Human Resources utilize "a composite of skill, effort and responsibility" that is "substantially similar" to a VP of Finance?  Who knows.  

If two positions are found to be "substantially similar," however, under the Fair Pay Act it is the employer's burden to prove that 100% of any pay difference is based upon seniority, merit, production, or a "bona fide factor other than sex, such as education, training, or experience."

Courts may interpret the Fair Pay Act as merely extending the Equal Pay Act.  Or it may be interpreted as a wide-ranging implementation of the "comparable worth" movement of the 1980's.  

In the meantime, however, employers and workers will need to look at the compensation levels attached to various position in a whole new light -- i.e., not as not merely what the "market will bear," but what can be justified to a court or jury.     

 

   

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