©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 191 213 2 Cal. Code Regs. § 11028(k). 214 2 Cal. Code Regs. § 11028(l). 215 2 Cal. Code Regs. § 11028(f). 216 2 Cal. Code Regs. § 11028(i). 217 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). 218 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). 219 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.” 220 Lab. Code § 1197.5. 221 Lab. Code § 1199.5. 222 Lab. Code § 1197.5(b). 223 Id. 224 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].” 225 Lab. Code § 1197.5 (a)(1)(A)-(D) (sex), (b)(1)(A)-(D) (race and culture). 226 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 http://www.leginfo.ca.gov/pub/senate-journal/sen-journal-0x20150526-1085.PDF) (last visited Mar. 25, 2024). 227 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].” 228 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.” 229 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.” 230 Lab. Code §§ 1197.5(a)(4), 1197.5(b)(4) (“Prior salary shall not justify any disparity in compensation. Nothing in this section shall be interpreted to mean that an employer may not make a compensation decision based on a current employee’s existing salary, so long as any wage differential resulting from that compensation decision is justified by one or more of the factors in this subdivision.”). 231 Lab. Code § 1197.5(k)(1). 232 Lab. Code §§ 1197.5(d), (i), (h). 233 Lab. Code § 1197.5(f). 234 Lab. Code § 1997.5(k). 235 Id. 236 Lab. Code § 1197.5(e). 237 Under the Parity in Pay Ordinance, San Francisco employers, effective July 2018, must not ask job applicants about their salary histories. San Francisco Parity in Pay Ordinance, San Francisco Police Code Article 33J, https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_police/0-0-0-49223 (last visited Mar. 25, 2024). 238 Lab. Code § 432.3. 239 Lab. Code § 432.3(b). 240 Lab. Code § 432.3(h) (“voluntarily and without prompting”). 241 Lab. Code § 1197.5. 242 Lab. Code § 432.3(c)(1). 243 AB 2282, 2018 bill amending Lab. Code §§ 432.3 and 1197.5. 244 Id. 245 SB 973, 2020 bill amending Gov’t Code § 12930 and adding Chapter 10 (commencing with Gov’t Code § 12999). 246 SB 1162, 2022 bill amending Gov’t Code § 12999 and Lab. Code § 432.2.
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