Can Two Employees Doing the Same Job Be Paid Differently in California?

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Californians often wonder, Can two employees doing the same job be paid differently? The Golden State’s progressive labor laws expressly prohibit employers from paying one employee less wages than another employee of the opposite sex, race, or ethnicity for “substantially similar work.” However, paying two employees differing wages for the same job is legal if the employer can show the disparity doesn’t stem from discrimination. For example, employers may pay one employee more than another based on experience and education.

Keep reading for in-depth answers to questions like, Can you pay an employee two different hourly rates? and Why do different people earn different wages? Don’t hesitate to contact us with questions—understanding your employment rights is the first step to protecting them.

Same Job Different Pay Is It Illegal?

California employers generally have the discretion to set their pay scales. In some circumstances, employers may legally pay different wages for two people doing the same job. However, the California Equal Pay Act (EPA) specifically prohibits employers from paying one employee wages that are less than what it pays employees of the opposite sex, race, or ethnicity for “substantially similar work” when “viewed as a composite of skill, effort, and responsibility and performed under similar working conditions.”

“Substantially similar” work is primarily similar in skill, effort, and responsibility and performed under similar working conditions. “Skill” refers to the combination of experience, ability, education, and training necessary to perform a particular job or task effectively. “Effort” refers to the physical or mental exertion required to complete a job. “Responsibility” refers to the level of accountability and duties needed to perform a particular job. And “working conditions” include physical surroundings and hazards.

Additional protections include:

• Employers may not use an employee’s prior salary to justify any sex, race, or ethnicity-based pay difference;
• Employers must ensure that any legitimate factors causing pay inequities are reasonable and account for the entire pay difference; and
• Prohibiting employees from discussing or inquiring about their co-workers’ wages and retaliation against employees who seek to enforce the law is illegal.

It’s also important to note that this doesn’t mean all employees in the same position will earn identical wages. The EPA allows for wage differences based on any of the reasons explored in the next section.

What Are Legal Justifications for Different Wages?

Two substantially similar jobs may have nondiscriminatory, legal reasons for pay differences, such as:

• A seniority system—when employers base pay on how long an employee has been with the company;
• A merit system—when employers base pay on performance measured by established criteria;
• A quantity or quality of production system—when employers tie pay directly to output or quality metrics; and
• Other differentials—when employers base pay on factors other than gender such as night shift differential pay or pay based on geographic location.

In other words, the answer to the question, Can two employees doing the same job be paid differently? is ‘yes,’ in some circumstances. If employers can justify pay differentials with objective criteria like those set out above and there is no discriminatory intent, they may pay employees differently.

How Do I Know If My Employer Violated California’s Equal Pay Act?

EPA enforcement and interpretation can be nuanced. Several key factors to assess whether your and another employee’s roles are indeed similar include:

• Job duties—the tasks, functions, and responsibilities associated with a position based on the actual work done, not just job titles or descriptions, to see if they are substantially equal in terms of what the jobs entail;
• Skills required—the experience, ability, education, and training necessary to perform a job, focusing on what the job requires; and
• Working conditions—the physical surroundings and job hazards, such as temperature, fumes, and ventilation, as well as other elements like a position’s hours and mental pressures.

Using this framework, if you can provide evidence that your job is substantially similar to another employee receiving higher pay, it might violate California law.

How Do I Find Out If My Employer is Paying Me Less Than My Coworkers for the Same Job?

While California employees have the right to inquire about, discuss, and disclose their salaries openly, employers are not legally obligated to provide information about other employees’s wages. Employees in a labor union can refer to their collective bargaining agreement to find information about the organization’s pay structures, and public sector salary scales are often accessible to the public. To determine if a gender pay gap exists in your workplace, you can also try one of the following online calculators that estimate wage disparities based on gender:

• California Commission on the Status of Women: Information about Wages, and
• Economic Policy Institute: What Could You Be Making.

It’s also important to remember that it’s illegal for your employer to terminate you, behave in a discriminatory way, or retaliate against you for talking about wage disparities or sharing information about your or your colleagues’s salaries. If you face retaliation, you can file a claim with the California Labor Commissioner’s Office or initiate a lawsuit seeking compensation for lost wages or potential reinstatement. A skilled employment lawyer at Lawyers for Justice, PC, can also walk you through these options, review your wage claim, explain your rights, and help you determine your best course of action.

Lawyers for Justice, PC Advocating for Fairness

Our dedicated attorneys at Lawyers for Justice, PC are experts in wage and hour laws and are committed to safeguarding your rights. Our skilled advocates can assist you if you face wage and hour challenges or want legal action. Recognized by respected institutions with honors such as Lawyers of Distinction and Super Lawyers—including the Rising Stars and Up and Coming categories—our lawyers have a proven track record.

Don’t let concerns over your wages threaten your livelihood or your well-being. Your rights are important; we’re here to fight for them at Lawyers for Justice, PC. , secure the necessary counsel, and ensure your desired outcome.