Equal pay cases handout

Summary

Equal pay cases handout

Text

STATE OF CALIFORNIA   |  Business , Consumer Services and Housing Agency  GAVIN NEWSOM , GOVERNOR  
Civil Rights Department  
2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758  
800-884-1684 (voice) | 800 -700-2320 (TTY) | California’s Relay Service at 711  
www. dfeh .ca.gov | [email protected]  
KEVIN KISH , DIRECTOR  
  
Revision date September 21, 2022 
EQUAL PAY CASES 
 
This document explains the processes of the Labor Commissioner’s Office, also referred to as 
the Division of Labor Standards Enforcement (DLSE or the Labor Commissioner’s Office) and 
the Civil Rights Department (CRD) for equal pay cases. You may file a complaint of sex, race, 
or ethnicity-based wage discrimination with the Labor Commissioner’s  Office and/or the CRD. 
 
TYPES OF CLAIMS 
 
Equal Pay Act – The Labor Commissioner’s Office and CRD both enforce the Equal Pay 
Act (Labor Code section 1197.5).The Equal Pay Act prohibits an employer from paying its 
employees at a wage rate that is less than the wage rate it pays to employees of the 
opposite sex, or of another race, or of another ethnicity for substantially similar work, when 
that work is viewed as a composite of skill, effort, and responsibility, and working 
conditions, unless the employer demonstrates that the difference in wage rate is based on 
a seniority system, a merit system, a system that measures quantity or quality of 
production, or a bona fide factor(s) other than sex, race, or ethnicity, such as education, 
training or experience. Employees are also protected against retaliation when they have 
asserted their rights under the Equal Pay Act. 
 
Fair Employment and Housing Act – CRD also enforces the Fair Employment and 
Housing Act (FEHA), which prohibits discrimination, harassment and retaliation based on 
sex, gender, race, and national origin in employment. This includes, but is not limited to, 
intentionally paying an employee in a protected class less than other employees for the 
same or substantially similar work because of their protected status. It may also include 
the use of a policy or procedure that has the effect of creating pay disparities between 
individuals in a protected class and other individuals, even if the employer does not intend 
to discriminate. Employees are also protected against retaliation when they have asserted 
their rights under FEHA. 
 
FILING DEADLINE 
 
Under the Equal Pay Act, an employee must file a claim with either the Labor 
Commissioner’s Office or with CRD within two years from the date of the violation. If the 
violation is willful, then an employee must file within three years. Each paycheck that 
reflects unequal pay is considered a violation for the purpose of calculating the deadline 
for filing. For example, if an employer pays a female worker less than a male worker for 
substantially similar work in January 2020, and the employer cannot justify the unequal 
pay with any available defenses, for a non-willful violation, the female worker has until 
January 2022 to file a claim to seek recovery going back to January 2020. If she waits 
until January 2023 to file a claim, and the unequal pay is ongoing, she can seek recovery 
going back only two years, or for violations from January 2021 to January 2023. 
 
Claims alleging violations of the FEHA must be submitted to the CRD within three years

CRD Equal Pay Act Cases  Page 2 of 3 
Revision date September 21, 2022 
from the date of the most recent alleged act of discrimination, harassment, or retaliation. 
 
PROCESS 
 
You may choose to file an individual lawsuit (discussed further below) or proceed with 
filing a complaint with the Labor Commissioner’s Office or the CRD. If you file a complaint 
with the Labor Commissioner’s Office or the CRD, each agency will follow their own 
process: 
 
Labor Commissioner’s Office – Will investigate and upon finding there to violation may 
either (1) under Labor Code section 98.74, issue a citation or (2) under Labor Code 
section 98.7, issue a determination for possible civil enforcement.  
 
Under the citation route per section 98.74, the person issued the citation may appeal the 
citation. A DLSE hearing officer will hold a hearing and issue a written decision. The 
person issued the citation may file a petition for writ of mandate after posting a bond with 
the Labor Commissioner equal to the total amount of any penalties, lost wages and 
interest, liquidated damages and other monetary relief. If no petition for writ of mandate is 
received within 45 days after service of the decision, the order shall become final. 
  
Under the civil enforcement route established by section 98.7, the employer has 30 days 
after service of the determination to comply. Should the employer fail to comply, the Labor 
Commissioner’s Office will file a civil action in superior court to enforce the determination. 
The Labor Commissioner’s Office has 3 years from the date that the employer failed to 
comply with the determination to file a civil action. 
 
CRD – Will investigate, attempt to conciliate and, if the case has merit and cannot be 
resolved, may file a civil action in court. CRD must complete the investigation within 
one year in most cases. 
 
REMEDY 
 
Under the Equal Pay Act, the Labor Commissioner’s Office and CRD can both 
recover the unpaid wage differential, interest, and an equal amount in liquidated 
damages. 
 
In addition, FEHA empowers CRD to also recover compensatory damages, including 
damages for emotional distress. If a case is filed in court, punitive damages may be 
awarded in some  circumstances. 
 
YOUR RIGHT TO FILE A LAWSUIT 
 
You may file a lawsuit under the Equal Pay Act if you file within two years after the cause 
of action occurs (or within three years if it is determined to be a “willful” violation). You do 
not need to file a complaint with the Labor Commissioner’s Office or CRD before filing 
your own private lawsuit. If you prevail in civil court, you may be entitled to lost wages,

CRD Equal Pay Act Cases  Page 3 of 3 
Revision date September 21, 2022 
 
interest, an equal amount in liquidated damages, and attorney fees and costs. 
 
You may file a lawsuit under the Fair Employment and Housing Act (FEHA), but only after 
filing a complaint with CRD. If you want to file a lawsuit without a CRD investigation, you 
can request a Right-to-Sue notice when you file your complaint. You will be given a letter 
permitting you to proceed in court. If you prevail in a private lawsuit filed under the FEHA, 
you may be entitled to attorney fees and costs, lost wages and interest, compensatory 
damages (for emotional distress and out of pocket expenses), and, where appropriate, 
punitive damages.

Retrieval chunks

• #1

  STATE OF CALIFORNIA | Business , Consumer Services and Housing Agency GAVIN NEWSOM , GOVERNOR Civil Rights Department 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 800-884-1684 (voice) | 800 -700-2320 (TTY) | California’s Relay Service at 711 www. dfeh .ca.gov | [email protected] KEVIN KISH ,…

• #2

  Commissioner’s Office or with CRD within two years from the date of the violation. If the violation is willful, then an employee must file within three years. Each paycheck that reflects unequal pay is considered a violation for the purpose of calculating the deadline for filing. For example, if an employer pays a …

• #3

  comply with the determination to file a civil action. CRD – Will investigate, attempt to conciliate and, if the case has merit and cannot be resolved, may file a civil action in court. CRD must complete the investigation within one year in most cases. REMEDY Under the Equal Pay Act, the Labor Commissioner’s Offic…