192 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 194 SB 332, 2021 bill amending Gov’t Code § 12964.5. 195 Gov’t Code § 12964.5(d). 196 Gov’t Code §§ 12964.5(b)(3), (4). 197 Gov’t Code § 12964.5(e). 198 SB 1300, adding Gov’t Code § 12923. 199 Brooks held that misconduct was insufficient to prove a sexually hostile environment where the harasser approached a co-worker as she was taking a call and put his hand on her stomach, commented on its softness, boxed her in as he stood by her chair, and forced his hand underneath her sweater and bra to fondle her breast, and approached her a second time as if he would fondle her again). 200 Notice of Approval of Regulatory Action (May 17, 2018), accessible at https://www.dfeh.ca.gov/wpcontent/uploads/sites/32/2018/05/NtcApproval1.pdf (visited Mar. 12, 2022). 201 2 Cal. Code Regs. § 11027.1(a). 202 2 Cal. Code Regs. § 11027.1(b). 203 2 Cal. Code Regs. § 11028. 204 2 Cal. Code Regs. § 11028(b), (c). 205 2 Cal. Code Regs. § 11028(a). 206 2 Cal. Code Regs. § 11028(k). 207 2 Cal. Code Regs. § 11028(l). 208 Gov’t Code § 12951(b). 209 2 Cal. Code Regs. § 11028. 210 2 Cal. Code Regs. § 11028(d). 211 2 Cal. Code Regs. § 11028(k). 212 2 Cal. Code Regs. § 11028(l). 213 2 Cal. Code Regs. § 11028(f). 214 2 Cal. Code Regs. § 11028(i). 215 Gov’t Code § 12926(v) (expanding definition of “national origin” to include those who, notwithstanding their inability to provide their lawful presence in the United States, have obtained a driver’s license under Motor Vehicle Code section 12801.9, which permits undocumented immigrants to obtain a special driver’s license if they cannot submit satisfactory proof that their presence in the United States is authorized under federal law). 216 Employers must not retaliate against an employee for reporting “a violation of or noncompliance with a ... federal rule or regulation.” Lab. Code § 1102.5(a). 217 The Supremacy Clause in Article 6 of the U.S. Constitution establishes the Constitution, the federal statutes, and the treaties of the United States as “the supreme law of the land.” 218 Lab. Code § 1197.5. 219 Lab. Code § 1199.5. 220 Lab. Code § 1197.5(b). 221 Id. 222 Lab. Code § 1197.5(a): “An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates [a specified defense].” 223 Lab. Code § 1197.5 (a)(1)(A)-(D) (sex), (b)(1)(A)-(D) (race and culture). 224 This clarification came from the senator who introduced the Fair Pay Act legislation. Senator Hannah-Beth Jackson wrote the President pro Tempore of the Senate a letter printed in the California Senate Daily Journal on May 26, 2015: “[T]he amendments to this bill that strike ‘work is performed at different geographic locations’ and ‘work is performed on different shifts or at different times of day’ should not be construed as the Legislature’s intent to make those factors unavailable to an employer responding to an equal pay complaint. Rather, the employer may claim a ‘bona fide factor,’ that may be specifically described by the employer as work that is performed at different geographic locations or work that is performed on different shifts or at different times of day, so long as the employer can prove that the factor is consistent with business necessity, as specified in the bill.” See https://resources.dciconsult.com/wp-content/uploads/2015/11/CAFPA-letter-amend.pdf (visited Feb. 24, 2023). 225 Lab. Code § 1197.5(b): “An employer shall not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates [a specified defense].” 226 The prior law, appearing at Lab. Code §§ 1197.5(a)(1)(D)(3), (b)(1)(D)(3), stated: “Prior salary shall not, by itself, justify any disparity in compensation.” 227 The new law, appearing at Lab. Code §§ 1197.5(a)(4), 1197.5(b)(4), states: “Prior salary shall not justify any disparity in compensation.”
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