According to a Trusaic analysis of SB 973 pay data, the gender pay gap in California was $46 billion in 2020. The gender pay gap widens to $61 billion for women of color. As explained in National Women’s Law Center’s study, Salary Range Transparency Reduces Gender Wage Gaps, California recently enacted SB 1162 to impose additional pay reporting and pay transparency obligations upon employers to combat this enduring gender injustice. Prior to the enactment of SB1162, California Government Code Section 12999 required employers with 100 or more employees to annually submit to the Civil Rights Department pay data that accounts for the number of employees by race, ethnicity and sex in 10 job categories from executives, senior level officials, managers, professionals, technicians to service workers, with the assumption that those at the top of the 10 categories are making the most and the pay decreases with each step down. Employers with 100 or more workers hired through a labor contractor must also file this pay data report (or a separate report if the employer also directly employs 100 workers). Section 12999 also requires employers to provide the number of employees by race, ethnicity and sex whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey. These reports are confidential and not subject to Public Records Act requests.
On September 27, 2022, California lawmakers enacted SB 1162 which amends Government Code Section 12999 to require the pay data report include within each job category, for each combination of race, ethnicity and sex, the mean and median hourly rate. The Legislature further amended Government Code Section 12999 to allow the Civil Rights Department to request a court to assess civil penalties not to exceed $100 per employee for the first violation and $200 for subsequent violations. Awarded civil penalties will go to the Civil Rights Enforcement and Litigation Fund. Although the draft legislation originally contemplated making these reports available to the public, the final version retains the reports’ confidential status.
SB 1162 also amended Labor Code Section 432.3 such that as of January 1, 2023, employees, regardless of the employer’s size, can request and receive a pay scale for their current position. Additionally, employers with 15 or more employees must include the pay scale in all job postings. Also, employers are now required to maintain records of the job title and wage rate history for each employee for the duration of their employment plus three years after the end of employment. Aggrieved employees and applicants may file a complaint with the Labor Commissioner or seek an injunctive and other appropriate relief through the courts. The Labor Commissioner may assess civil penalties between $100 and $10,000 per violation.
Although only time will tell whether SB 1162 will move the needle on the gender pay gap, these new transparency requirements arm employees and applicants with more information when applying for a job and negotiating raises. Women – let’s pool our collective strength to use it and achieve equal pay.
GoodGuys' Program Calls on Men To Be Part of the Solution to Gender Inequality in the Legal Profession
According to the National Association of Women Lawyers, if the pace of progress over the last ten years continues, women equity partners will not reach 30 percent until the year 2181 – 159 years from now! Such alarming statistics promoted liked minded men and women attorneys to form GoodGuys (Guys Overcoming Obstacles to Diversity) with the mission of bringing more men into the fight for gender equity in the legal profession. On September 22, 2022, as Co-Chair of Lawyers Club of San Diego's Gender Equity Committee, I attended an outstanding GoodGuys program sponsored by Lawyers Club and the National Conference of Women’s Bar Associations. NCWBA kicked off the well-attended event with a GoodGuys’ primer that educated attendees on the formation and growth of the GoodGuys movement, with chapters in almost every state, Canada and England. Founders were frustrated with the stagnant state of diversity progress and failing diversity initiatives. GoodGuys believes that having more “Guys” active in the movement is part of the solution.
Founding GoodGuys member Steven Velkei of Velkei Law walked us through his personal journey toward recognizing his male privilege and implicit bias and the steps he is taking to disrupt the prevailing power structures that harm women and other under-represented people in leadership roles. Importantly, he stressed that men like himself should not “pat ourselves on the back too quickly” because that slows or stops progress. He presented numbers on the continuing partner compensation disparity between men and women and unpacked some potential causes. On a brighter note, we learned that compensation transparency positively impacts pay parity. Steven’s sincerity, humility and passion make him an ideal GoodGuys ambassador.
Closing the program, moderator Teresa Beck, Managing Shareholder of AZ and NV Klinedinst PC and Co-Chair of its DEIB Committee was joined by panelists Ronna Ruppelt, Chief Executive Officer, CLM, Shaka Johnson, Vice President and Associate General Counsel, Sony Electronics, Bill Sailer, SVP Legal Counsel Qualcomm and Capt. Josh Nauman, Commanding Officer, Region Legal Service Office SW, U.S. Navy. This diverse panel provided insights into the challenges they face in promoting diversity in general and gender equity specifically. Among the many pearls of wisdom and memorable comments was Capt. Nauman’s education from his female reports who shared with him the unique obstacles women face in finding a spouse given the itinerate nature of life as a Naval officer. Without women in leadership roles to educate him, he would have remained clueless on this very central challenge women in the Navy face. Bill Sailer shared hearing the legendary story of Lawyers Club starting with our founding mothers demanding to be seated at the Grant Hotel for lunch and being shocked that such activism was necessary as recently as 1972. Bill stressed culture is more important than strategy when it comes to systemic change. Shaka Johnson warmed the attendees’ hearts with his story of his young daughters playing co-ed flag football and how the girl players, greatly outnumbered by the boys, quietly demonstrated their superior athleticism while the boys exuded unearned confidence. Highlighting progress since her time as the only female attorney at her large Mid-Western law firm, Ronna Ruppelt shared her own “Grant Hotel” moment when she was deprived equal access to a firm event at a local establishment that barred women from using the front door!
Attendees stayed after the program to network and enjoyed delicious food and beverages hosted by Klinedinst PC, overlooking a spectacular view of the Bay and Coronado Bridge. I was impressed by the quality of the program and enthusiasm of the presenters and members.
Viking River Cruises v Moriana:Supreme Court Hands Temporary Win to Employer's Challenge to California PAGA Actions.
Acknowledging that the State’s Labor and Workforce Development Agency (LWDA) lacked sufficient staff and resources to enforce California’s Labor Code, the California Legislature enacted the Private Attorneys General Act (PAGA), Cal. Lab. Code § 2698, which empowers a victim of Labor Code violations to sue her/his employer on behalf of other employees whose Labor Code rights were violated by the same employer. In this regard, PAGA allows unrelated Labor Code violations claims to be brought in the same suit under the name of a representative PAGA plaintiff, regardless of whether the named plaintiff suffered those violations.
On June 15, 2022, the United States Supreme Court issued its highly anticipated decision in Viking River Cruises, Inc. v Moriana concerning whether the Federal Arbitration Act (FAA) preempts California’s wholesale prohibition of PAGA action waivers in arbitration agreements. In Viking River Cruise, Moriana, a former Viking employee, brought a PAGA action against Viking for her individual Labor Code violation as well as numerous unrelated Labor Code violations she alleged Viking committed against other employees. Pursuant to the terms of a mandatory arbitration agreement between Moriana and Viking that waived Moriana’s right to pursue a representative PAGA action in court, Viking moved to compel Moriana to arbitrate her individual PAGA claim and to dismiss the representative PAGA action (those violations suffered by other employees). Applying the holding in Iskanian v. CLS Transp. Los Angeles, LLC , the California courts rejected Viking’s position and held that categorical waivers of PAGA standing is contrary to public policy and that PAGA actions cannot be “split” between arbitrable individual PAGA actions and non-arbitrable representative actions.
In reversing the California Court of Appeal, the majority opinion, penned by Justice Alito, concluded that a wholesale waiver of PAGA actions is not preempted by the Federal Arbitration Act (FAA), but that the FAA preempts the California rule precluding splitting PAGA actions between individual arbitrable and representative non-arbitrable claims. Viking River Cruise hands a temporary victory to employers using arbitration agreements that waive PAGA actions because PAGA plaintiffs will be forced into arbitration and their Labor Code claims will be limited to the violations she or he personally suffered. As such, employees will be dissuaded from pursuing them. The majority opinion, however, left open the door for the California Legislature to amend PAGA to give standing to individual plaintiffs to pursue representational claims in court, standing that the Court found lacking under PAGA’s current statutory language. See Justice Sotomayor’s concurring opinion providing this amendment roadmap.
Although employers are claiming a win, the majority opinion repeatedly acknowledges that the FAA is rooted in the principle that “arbitration is strictly a matter of consent” of the parties. The opinion stresses that the FAA would lose its legitimacy if only one party wanted to arbitrate and the other party had no choice but to submit. This gives us some hope that California’s recently enacted ban on mandatory arbitration agreements as a condition of employment (Labor Code § 432.6) just might survive current legal challenges working their way through the courts. Stay tuned.
While leaving this year’s inspiring Lawyers Club of San Diego General Counsel roundtable, I fortunately took home a copy of Emily Chang’s Brotopia: Breaking Up the Boys’ Club of Silicon Valley. Chang’s exquisitely researched deep dive into women’s nearly complete exclusion from the modern technology industry is a must read for Lawyers Club members. Brotopia starts with the tale of male USC computer scientists in the 1970s nonchalantly using a Playboy centerfold portrait to develop the technology that digitizes images (the modern JPEG). This image became ubiquitous in computer labs and remains in circulation. When Chang questioned the team leader, William Pratt, about the propriety of using a Playboy centerfold photograph to develop this technology, Pratt responded that using the photo was not sexist because Playboy had “high quality photos” and since there were no women in the class, there was no one to be offended. Sound familiar?
From there, Chang takes her readers on an action-packed ride starting in the 1950s when computer programmers were predominately women! Not surprisingly, as programmers’ salaries rose and the computer industry grew lucrative, the industry pushed women out or excluded us by using a tragically flawed “programmer aptitude test” developed by two male psychologists who “determined” that good programmers 1) like to solve puzzles and 2) dislike people! Because women tested as liking people at a much higher rate than men, this pseudoscience concluded that women were naturally inferior programmers.
By selecting for an antisocial nerd stereotype, women were profiled out of the technology workforce. This industry composition contributed to the cultural designation that computers were for boys, compounding the growing scarcity of female computer engineers.
A technology community insider, Chang walks us through the making of Silicon Valley companies such as Uber, PayPal, Google, Twitter, Facebook and numerous VC groups that fund them. She brings to life the stories of how difficult it has been and remains for women to enter these rarified spaces. Once there, women routinely experience intense sexism, sexual harassment, marginalization, general hostility and crippling double standards. Their tenures are short lived. Still, Chang makes a convincing case that we can and must overcome these challenges. Chang’s access to the men (and the smattering of women) at the top of these ventures informs her thesis. Chang reminds us that technology shapes nearly every aspect of human life, yet it remains nearly exclusively male conceived and designed. Would these technologies be better and less destructive if women had helped to shape them? Chang emphatically answers “yes.” With punchy, insightful and humor-filled writing, Brotopia maps out a plan for a better, more inclusive future for this world shaping industry. I encourage you to read it.
I celebrate The Right Livelihood Foundation’s selection of Bryan Stevenson for this year’s honoree. A highlights of my time with Public Counsel was hearing Bryan Stevenson’s acceptance speech at the 2016 William O. Douglas Award Dinner. He spellbound the room with his passionate plea that we must do more to confront the injustices of systemic racism in the United States. I had the honor of meeting Bryan, as the Award Dinner featured my work enjoining Pomona’s unlawful practice of seizing and destroying the personal property of its residents experiencing homelessness. Mr. Stevenson stands as a towering example of what attorneys can accomplish when we put the fight for justice before all else. Here's a picture of Bryan Stevenson with my clients and my wonderful colleague, Azadeh Hosseinian, who worked so hard on the case.