Effective January 1st, California will have one of the toughest pay equality laws in the country.
Existing California and federal law already prohibit employers from paying women less than men for the “same jobs.” But many feel that these laws were proving ineffective in California – citing data including a U.S. Census Bureau report this year that found that full-time women employees in California are paid substantially less (a median 84 cents for every dollar) than their male counterparts.
The new law, referred to as the California Fair Pay Act, has as its stated purpose attempting to close this gap and broaden the scope of existing equal pay laws by mandating that employers pay male and female employees the same amount for “substantially similar work” under similar working conditions. So, employees performing “substantially similar work” under similar working conditions must be paid the same amount even if they have different titles or work at different locations. This new standard will likely make it significantly easier for employees to bring a pay discrimination claim under the California law than under the federal Equal Pay Act. The law also prohibits retaliation against employees who complain of pay inequities.
California employers should review and update their existing compensation systems and policies to ensure that differences in pay are reasonably related to legitimate business factors (like merit or seniority), and not based on gender. This is especially important because we anticipate that new legislation will lead to a spike in litigation — especially given that plaintiffs will have an easier task in establishing that they were performing “substantially similar work” rather than the “same job.”
The #1 question we’ve been receiving from our clients this fall is “When will the new overtime regs be issued?” While previously we were left guessing on the specific timing in 2016, the Wall Street Journal and National Law Review are reporting that the Solicitor of Labor has indicated that the final regulations likely will not be issued until mid-to-late 2016.
It remains to be seen what, exactly, the final regulations include. Per our blog post when the proposed regulations were first issued, the proposed regulations focused on the minimum salary thresholds, significantly raising those amounts. However, the DOL also invited comment on the duty rules, so it remains possible that the final regulations may include changes beyond the salary threshold.
We will continue to monitor the status of the regulations and keep you posted on any developments.
Is commenting on a Facebook post protected, concerted activity under the National Labor Relations Act? What about hitting the “Like” button on a post? The Second Circuit recently agreed with the National Labor Relations Board that they are.
In a decision last year, the Board ruled that a sports bar had unlawfully terminated two employees for their activity on Facebook. The first employee had commented on a status update of a co-worker stating that the bar’s owners “couldn’t even do the tax paperwork correctly” and that someone should do the owners “a favor” and purchase the business from them. The employee’s comment stated that she “owed too,” and referred to one of the owners as an “asshole.” The second employee “liked” the first employee’s status update. The Board held that both employees’ had engaged in protected, concerted activity under the Act, and that the bar had violated the Act when it terminated their employment.
Last month, the Second Circuit (Connecticut, New York, and Vermont) affirmed the Board’s decision. The court held that the employees’ actions amounted to a group of employees discussing labor issues and were protected by the Act. The bar argued that the Facebook comment and “like” were meant to defame the bar – with the use of profanity – and thus brought it outside the protections of the Act. However, the court reasoned that the Facebook activity at issue was different from obscenities voiced by employees in earshot of customers in a crowded shop (even though customers could view the comments on Facebook). The court also noted that the bar’s internet and blogging policy could be read as prohibiting employees from protected activity under the Act.
The take-away here? It’s a good time for employers to review their social media policies. As we have warned in the past, these policies as written and as enforced must not “chill” employees from engaging in protected, concerted activity. There is often a fine-line between lawfully prohibiting certain types of activities on the internet and unlawfully interfering with employees’ protected activity. It’s a good idea to check with counsel on how to best craft the wording of these policies to protect the employer’s interests while not interfering with employees’ rights.