USA – CALIFORNIA Trends and Developments Contributed by: Sanford Heisler Sharp McKnight, Sanford Heisler Sharp McKnight
became illegal to do so, Apple continued to enquire about applicants’ prior pay under the guise of their compensation expectations; it then used this infor - mation to set starting salaries. This practice allegedly perpetuated past pay disparities and resulted in lower pay rates for women than for men who performed substantially similar work. In January 2025, a court largely allowed the claims to proceed. Two More Changes SB 642 extends equal-pay protection to non-binary workers , and it requires employers to be honest in what they post. The law used to speak of the “opposite sex”, a fram - ing that left gender-diverse workers in an uncertain position. It now reaches pay disparities measured against “another sex”, and against gender identity and expression. Separately, the salary range that an employer lists in a job posting must be a genuine good-faith estimate of what it expects to pay upon hire . A range so wide that it discloses almost nothing, such as the familiar “USD90,000 to USD250,000” posting, no longer satis - fies the law. It is not sufficient to post a broad range generally associated with a position as opposed to the projected starting pay. The Honest Part: A Pay Gap Alone Is Not Proof A difference in pay, standing by itself, is not unlawful. The law asks whether that difference can be explained by common non-discriminatory factors. This is the caveat that no responsible discussion should omit. If an employee proves that they suffer from a pay gap as compared to a similarly situated employee of a different sex/gender, race or ethnicity, an employer is still entitled to justify that pay differ - ence as being the result of legitimate non-discrim - inatory factors. It can do show by showing that the difference stems from a bona fide seniority system, a merit system, a system that measures the quantity or quality of work, or another genuine factor other than sex/gender, race or ethnicity – such as education, training or experience – that is job-related and con - sistent with business necessity. SB 642 did not abol - ish those defences; thus, a pay differential does not,
by itself, establish a case. It is a reason to look closely, with advice specific to your situation, as to whether the other employee is performing substantially simi - lar work to you under similar conditions and whether there is some other legally acceptable justification for the difference. No worker should assume that a dis - parity is unlawful, or lawful, without an individualised legal analysis. What to Do If You Think You Are Underpaid If you suspect that your pay does not reflect equal work, a few concrete steps protect your position. Identify your comparators Note your colleagues doing substantially similar work, measured by the skill, effort and responsibility the job requires, under similar conditions. Account for all of your pay Compare total compensation, salary, bonus, equity and benefits, not base salary alone. Gather what you can Relevant evidence includes offer letters, pay stubs, bonus and equity statements, performance reviews, and job postings with their stated ranges. However, you should generally only assemble documents that are publicly available or that are provided to you in the ordinary course of applying for over-performing your job. The law protects you from retaliation for disclosing your own wages to your employer or to other employ - ees, discussing the wages of others, enquiring about another employee’s wages, or aiding or encouraging any other employee to exercise their rights under Cali - fornia’s Equal Pay Act. If you are fired, discriminated against, or otherwise retaliated against for exercis - ing these rights, you may have a claim for retaliation regardless of whether or not you have a valid claim for unequal pay. See Labor Code Section 1197.5 (k). Mind the clock The limitations period is three years from the last vio - lation, with potential recoveries going back up to six years. Waiting narrows your options.
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