California Equal Pay Act – How To Bring a Claim

The California Equal Pay Act (CEPA) prohibits employers from paying unequal wages to employees of a different sex, race, or ethnicity if they do substantially similar work. The only lawful pay gaps are those that are based on non-discriminatory reasons, such as:

• education;
• training;
• experience;
• a merit system;
• quality of production; and
• a seniority system.

The purpose of CEPA is to eliminate systemic sexism- and racism-based pay differences in the workforce. You can file a complaint with the Labor Commissioner or bring a lawsuit if your employer:

• is paying you less than a similar employee of a different race, sex, or ethnicity; or
• is retaliating against you for enforcing your rights under CEPA.

Here at Shouse Law Group, we have represented countless employees who were cheated out of fair wages due to their gender or race. In our experience using CEPA, we can recover double back wages and achieve job reinstatements following a wrongful termination or demotion.

In this article, our California employment law attorneys will address:

• 1. What is the California Equal Pay Act?
• 2. When are wage disparities lawful?
• 3. Does my wage history matter?
• 4. Can I ask about pay scales?
• 5. How do I bring an Equal Pay Act claim?
• 6. What is the statute of limitations for filing an Equal Pay claim with the Labor Commissioner?
• 7. What money can I get from filing a wage claim?
• 8. What if I am being retaliated against?
• 9. What is the California Fair Pay Act?
• 10. Do wage disparities still exist?
• Additional resources

1. What is the California Equal Pay Act?

2. When are wage disparities lawful?

California employers can give employees unequal pay for doing substantially similar work for reasons that:

1. have nothing to do with sex, race, or ethnicity;
2. are job-related; and
3. are consistent with a business necessity.

If a different business practice would result in the same business goal without causing a wage difference, then there is no business necessity.

When wage gaps are legal

Legitimate reasons for wage gaps include:

• merit;
• productivity;
• seniority; and
• other bona fide factors such as education, training, and experience.

Example: Tom has been working the same factory job for 20 years. Tina is hired for the same job, having no prior experience. Even though Tom and Tina are doing identical work, it is reasonable for Tom to receive higher wages than his new female colleague because Tom has two decades more experience.

In short, wage disparities between workers who do similar jobs are legal as long they are reasonably based on legitimate factors and not on conscious or unconscious bias, prejudice, or discrimination. In our experience, we see employers exploiting these legitimate factors as loopholes to discriminate against workers due to their race or gender.²

3. Does my wage history matter?

California employers may not ask about your salary history. This prevents employers from using any low salaries you earned in the past to justify paying you a lower salary than they would otherwise.

Note that employers are permitted to seek salary histories that are publicly available through

• the California Public Records Act or
• the Freedom of Information Act.

Moreover, employers are allowed to ask you about your “salary expectations.”

Can I volunteer my salary information?

Yes. You can volunteer your prior salary information to a prospective employer. In our experience, this makes sense if you received large salaries in the past since it may prompt the employer to make you a more generous offer than it would have otherwise.

Employer penalties for asking about salary history

Note that employers who do wrongfully ask about your salary history information or use it to determine your current wages face a civil penalty of $100 to $10,000 per violation.³

See our related article, Can California employers ask job applicants about salary history?

4. Can I ask about pay scales?

Yes. In fact, California employers with 15 or more employees are required to include salary ranges on job postings. This must include piece rate or commission wages if applicable; however, employers do not have to post information about bonuses, tips, or other benefits.

Otherwise, once you complete an initial interview with an employer, the employer must provide you with a pay scale for that position if you “reasonably request” it. (“Reasonably” just means that you had an initial interview.)

You can also ask about your co-workers’ wages, though your employer does not have to reveal that information. In any case, employers may not retaliate against you for asking about pay scales or your colleagues’ wages.⁴

Why is wage transparency important?

The purpose of “wage transparency” is to empower employees to demand fair pay on par with substantially similar workers. Only employers benefit from keeping wage information secret.

The California Labor Commissioner investigates equal pay law violations.

5. How do I bring an Equal Pay Act claim?

If your employer is paying you less due to your sex, race, or ethnicity, you may either:

• File a claim with the California Labor Commissioner; or
• File a regular wage and hour lawsuit in court.

(You do not have to file a claim with the Labor Commissioner before bringing a lawsuit.)

Filing a claim

Filing a wage claim is typically cheaper, easier, and shorter than bringing a lawsuit. All you have to do is complete and email the EPA-1 Form – which asks for basic information about your case – to [email protected].

Note that the Labor Commissioner will keep your name confidential unless it is necessary to investigate your case. If you and your co-workers file similar claims, the same investigator will likely be assigned to them all.

Note that if you were discriminated against based on another protected category such as religion or age, you must file a claim with the CRD – California Civil Rights Department (formerly DFEH – California’s Department of Fair Employment and Housing).

Filing a lawsuit

If you bring a lawsuit, there is a three-step process:

1. You have the initial burden of showing that you are getting paid less than a worker of a different sex, race, or ethnicity for substantially similar work. You do not need to show that your employer has discriminatory intent.
2. Then your employer has the burden to show that there is a lawful reason for paying you less (such as merit or seniority).
3. If your employer meets this burden, then you have the burden to show that your employer’s reason is a pretext for discrimination. If you meet this burden, you should win the lawsuit.⁵

We handle the entire process of filing a claim and bringing a lawsuit, though in many cases, we can achieve favorable results just by sending your employer a strongly-worded demand letter. Many employers are willing to make generous financial concessions to avoid bad publicity and legal trouble.

6. What is the statute of limitations for filing an Equal Pay claim with the Labor Commissioner?

If your employer was willfully paying you less because of your sex, race, or ethnicity, you have three years to file a claim since the violation occurred. Though if your employer’s actions were not willful, then you have two years to file.⁶

Each paycheck you receive that pays you less than you are entitled to counts as a “violation.”

Note that employers are required to maintain your wage record for the entirety of your employment plus at least three years. This way, all the evidence of your wages will be available should you bring a wage claim.⁷

7. What money can I get from filing a wage claim?

If the California Labor Commissioner investigates your case and concludes your employer indeed violated the Equal Pay Act, it will demand that your employer pay you double the amount of the money you should have been paid, plus interest.

8. What if I am being retaliated against?

If you are being retaliated against for exercising your rights under CEPA, you may either:

• file a retaliation claim with the California Labor Commissioner within one year of the retaliation; or
• file a civil lawsuit against your employer within one year of the retaliation.

Depending on the case, you may be able to recover back wages and lost benefits (plus interest) and appropriate equitable relief, such as being reinstated to your job.

Protected activities

Specifically, CEPA prohibits your employer from taking adverse actions against you for either:

• bringing a wage claim;
• revealing what you earn;
• asking about what your coworkers earn;
• talking about your coworkers’ wages;
• helping your coworkers bring wage claims; and/or
• otherwise enforcing CEPA.

Types of retaliation

Retaliation can take many forms, such as:

• demotions;
• suspensions;
• termination;
• reduction in hours; and/or
• reduction of wage rates.⁹

Be sure to document all instances of retaliation and keep any evidence, such as work emails, memos, etc. The more proof we have, the easier time we will have winning you a settlement.

SB 497

As of January 1, 2024, there is a rebuttable presumption of retaliation if you get disciplined/discharged within 90 days of engaging in certain protected activity protected by California’s Equal Pay Act. If the employer then articulates a legitimate reason for their actions, you have to show that the adverse action was nonetheless retaliatory. (Learn more about SB 497.)

9. What is the California Fair Pay Act?

A new law effective January of 2016, the California Fair Pay Act (CFPA) mandates equal pay for employees who do “substantially similar work” instead of “equal work“, which was the previous standard. This way, job titles – which can be misleading – do not factor into the pay disparity evaluation. All that matters is the actual job duties the employees carry out.

Legal References