For decades, salary was one of the forbidden topics to discuss at work. It was considered impolite to ask or discuss wages – your own or other people’s – because money can be a touchy subject when people are making a different amount. However, where there is darkness, wrongdoing can be hidden. Behind that shield of “propriety”, employers hid deeply rooted trends of paying some people more – or less – than others for reasons other than their qualifications and performance.
To make matters worse, many employers established punishable rules against discussing wages. People have been demoted and even fired for discussing their salaries or asking about the pay of others. What you need to know is that this era of shadowed pay inequality has been over for some time, thanks to the California Equal Pay Act.
Can You Be Fired for Discussing Salary?
No, not legally. To answer the core question of this article, it is illegal for a California employer to retaliate in any way against employees who ask about, discuss, or encourage others to discuss their wages or salary. Now, let’s dive into the details regarding your rights to equal pay, discussions about pay, and retaliation-free knowledge sharing under California law.
California Law on Discussing Wages and Salary
The California Equal Pay Act currently prohibits employers from banning discussions about wages and from retaliating against employees who discuss wages or take action to enforce the other terms defined in the Equal Pay Law. In many ways, wage discussion gives a person protected status similar to whistleblowers – and for good reason.
The Equal Pay Act
- The California Equal Pay Act has a long history, originally passed in 1949 to enforce equal pay between the sexes for equal work.
- In 2015, it was updated through the California Fair Pay Act to further define equal pay for all who perform “substantially similar work” and that comparisons are not specific to any establishment (location).
- That same 2015 update also included protections against discussing wages, asking about comparative wages, and retaliation against employees who participate in wage discussions.
- In 2018, the act was updated again to prohibit employers from asking about previous pay, ensuring that previous pay inequality is not furthered from one job to the next.
- In 2023, the most recent update requires employers to provide salary ranges for roles and job postings upon request.
Understanding SB 1162: California’s Pay Transparency Law and Its Impact on Recruiting, Hiring, and Existing Employees
In California, the recently enacted SB 1162 Pay Transparency Law aims to bring greater fairness and transparency to the workplace, impacting not only the recruiting and hiring process but also existing employees.
What is SB 1162?
SB 1162 mandates that employers provide salary range information to job applicants upon reasonable request. This means that during the recruitment and hiring process, employers must disclose the pay scale for the position being applied for. Additionally, existing employees are entitled to this information, promoting a culture of transparency and fairness in compensation practices.
Why Does it Matter?
SB 1162 is a significant step towards combating pay disparities and ensuring equitable compensation practices. By providing salary range information upfront, job applicants and existing employees alike can make more informed decisions about their careers and advocate for fair compensation.
How Does it Impact Employers and Employees?
For employers, compliance with SB 1162 means adjusting hiring practices to incorporate salary transparency and addressing potential pay disparities within the organization. Failure to comply can lead to legal repercussions.
For employees, SB 1162 fosters trust and transparency in the workplace, potentially leading to increased morale and engagement. It also provides an opportunity for existing employees to advocate for fair compensation and address any discrepancies in pay.
Navigating SB 1162
Navigating SB 1162 requires careful attention to detail and understanding of its requirements. Employers must ensure that their recruiting, hiring, and compensation practices are in alignment with the provisions of the law to avoid potential liabilities.
Conclusion
SB 1162 represents a significant shift towards greater transparency and fairness in the workplace in California. By providing job seekers and existing employees with access to salary information, the law promotes equity and empowers individuals to make more informed decisions about their careers.
The Right to Ask About Wages
Under the current California Equal Pay Act, you have the right to ask your coworkers about how much they are making. Employers cannot prohibit you from asking, and your coworkers can choose whether or not to answer.
You also have the right to ask your employer about the wages of other employees. They are required to provide a salary range for each position, but are not required to give you specifics on your coworkers’ pay.
The Right to Discuss Wages and Salary
You have the right to discuss wages and salary with your coworkers, friends, family, and other professionals outside the organization. This right protects you from being secretly underpaid with no recourse to discover the pay scale of others – or to uncover that another person or group is being unfairly paid by sharing wage information between you.
The Right to Encourage Others to Discuss Wages
You also have the right to encourage and assist others in discussing wages. A person cannot be accused of inciting trouble if they organize wage discussions with coworkers or encourage wage comparisons.
Prohibited Salary Discussion in Job Applications and Interviews
It should be noted that exactly one party is prohibited from asking about salary: Your future employer. If you are applying or interviewing for a job, the California Equal Pay Act prohibits employers from asking about your previous wages or salary (and then basing their offer on that previous number). They can ask how much you want, and they have to give you a range if asked. This way, an employer’s pay standard is based only on the internal value of the role and not previous patterns of pay inequality.
Retaliation for Discussion of Wages
In the workplace, any type of retaliation is always a sign that something has gone wrong. Workplace retaliation is most often seen when an employee becomes a whistleblower or reports a workplace injury – and always because the company has something to hide. When discussing wages becomes a cause for retaliation, it’s a red flag that the company knows they are doing something wrong in terms of pay equality – either between their own employees or in comparison to industry standards.
Wage Discussion Retaliation is Illegal
In California, it is illegal for an employer to retaliate in any way against an employee for asking about wage comparisons, sharing their pay information, or asking others about their pay. If they are found guilty of violating the Equal Pay Act through unfair pay policies and/or retaliation, they will be required to remedy the policies, pay for differences in compensation, and pay a settlement in damages owed by order of the Labor Commissioner’s Office.
You can also sue your employer for matters such as wrongful termination, undue hardship, and lost wages in violation of the Equal Pay Act through civil court.
Examples of Wage Discussion Retaliation in the Workplace
What does retaliation look like when an employer decides to punish and discourage wage discussions? There are several common methods employers use when they want to stop employees from discussing wages, either by directly preventing the discussions or frightening them into stopping the illegally prohibited communication.
- Putting Employees Under Surveillance
- Employers may overtly surveil employees and enact disciplinary measures every time someone tries to discuss wages. They may go out of their way to make the employee uncomfortable, following them closely with an assigned watcher, placing cameras directly over their desk, or installing surveillance programs in their workstation computer.
- Threatening Employees to Make Them Stop
- An employer may make any number of threats regarding demotion, firing, denial of bonuses or raises, denial of benefits and approved vacation days, or unfavorable reassignment to force the employee to stop discussing wages.
- Isolating Employees Through Reassignment
- An employer may reassign an employee who has asked about or been caught discussing wages, isolating them in a basement office, a distant worksite, or even blocking their communication software so they cannot hold any discussions with other members of the company.
- Harassing an Employee Until They Quit
- A manager may take it upon themselves to harass an employee until they quit. They may write them up constantly, make their workplace uncomfortable, express open hostility, yell and insult them, give them unfavorable work tasks, or constantly force them to redo tasks – among many other ways to make a person miserable at work until they choose to leave out of self-preservation.
- Fabricating Other Reports of Wrongdoing
- When an employer knows they can’t lawfully fire an employee for a specific issue, they often make up new reasons to frame the professional as a bad employee. This involves write-ups for imagined failures or holding the employee to unrealistic and unfair standards that aren’t applied to coworkers.
- Firing Employees for Wage Discussion
- Lastly, employers may try to outright fire an employee for asking about or discussing wages. This is a clear case of wrongful termination, but they may try it – or threaten it – nonetheless.
Evidence to Prove Violations of the Equal Pay Act
How can you prove that your employer has fired you for discussing wages, or committed other acts of retaliation in violation of the California Equal Pay Act? This matter can be challenging because employers typically avoid putting these policies or direct statements of retaliation into writing. California is also a two-party recording state, meaning private conversations cannot be used as evidence without both party’s consent.
Fortunately, there are a number of ways to prove both equal pay violations and incidents of retaliation.
- Payroll or Comparative Pay Reporting
- First, unequal pay is often something that can be identified through investigation, payroll records, and reporting by multiple employees in the same organization. Evidence of unequal pay can serve as corroborating evidence that an employer would likely retaliate for pay discussions.
- Written Policies
- Some employers still have now-illegal written policies prohibiting pay discussions and may even state consequences for pay discussions.
- Emails, Texts, and Internal Messaging
- Anything in writing, including all digital communications, can be used as evidence. This includes emails, personal text messages, and records of internal messaging systems like SLACK or Zoom chats.
- Journal Entries
- If your employer is harassing you “off record” by avoiding written communications, it can help to keep a journal of their abusive behavior. Yelling, insults, reassignments, threats, and other behaviors can be documented as journal entries. This isn’t enough alone, but can serve as supporting evidence. Especially if supported by witness statements.
- Witness Statements
- Witnesses are often important in matters of workplace policy violations and retaliation. Coworkers willing to talk about what they saw as a result of pay discussions will support your case.
- Public Area Recordings
- While you can’t record private meetings or virtual meetings, you can take recordings in public areas. This includes lobbies, lunch areas, and open workspaces where many people are typically present. These are treated as public forums where there is no “assumption of privacy”.
- One method is to walk to a public space if your employer tries to threaten you privately. They will either stop or the conversation enters the public forum.
- Retaliatory Behaviors
- Retaliatory treatment of an employee often creates evidence. Sudden increase in write-ups (often baseless), reassignment, demotion, denial of bonuses, removal from consideration for raises or promotions, isolation from coworkers, sudden dismissal, and other activities can be tracked and proven that retaliation has taken place.
Protect Your Rights to Fair Wages and Fair Work
In the state of California, you have the right to receive fair wages, discuss your wages, and maintain your position while doing so. If your employer interferes with any of these rights, they are in the wrong. Whether you are currently enduring workplace retaliation or you have been wrongfully terminated for discussing salary, the California employment lawyers of Eldessouky Law can help. Our legal team is dedicated to protecting the rights of California professionals, including your right to discuss your salary and receive fair pay. Contact us for a consultation and we will help you hold your employer accountable for the harm they’ve caused and the laws they have broken.
