Copyright: belchonock / 123RF Stock Photo
Copyright: belchonock / 123RF Stock Photo

The Fair Pay Act (codified at Labor Code § 1197.5) has been in effect in California for almost six months. Despite the fact that it has the word “Fair” prominently in the title, I think the statute is decidedly unfair. The problem with this new law isn’t that it prohibits discriminatory wage practices. Paying someone less because of gender is unquestionably offensive.

But while other laws require the employee to prove discrimination, the Fair Pay Act puts the burden on the employer to disprove discrimination. The plaintiff just has to point to two people in similar (not identical) jobs who earn different amounts and the employer then has prove that the difference is based on one or more legitimate factors, that the factors relied on are applied reasonably, and that those factors account for the entire wage disparity.

To make matters worse, in many cases, employers will need expert testimony to meet this burden. I don’t know how you show that legitimate factors account for the entire wage disparity without a statistician or economist. This is more than just a significant expense. It also means the cases will be harder to defeat short of trial. Because if the employer gets an expert to opine on what causes a wage disparity, you know the plaintiff can find an expert to give a contrary opinion. So winning on demurrer or summary judgment becomes that much less likely.

In almost every other type of lawsuit, the burden of proof is placed on the plaintiff. If you’re going to succeed in claiming that you’re entitled to damages, it’s on you to prove by a preponderance of the evidence that the defendant has wronged you. Putting the burden on the employer to prove that it didn’t discriminate is fundamentally unfair. Requiring employers to hire experts to meet that burden makes matters worse.

We’ll be conducting a breakfast seminar where we’ll offer concrete advice on steps employers can take to protect themselves. Here are the details.