On March 19, 2020, California Governor Gavin Newsom issued a mandatory “stay-at-home” order, directing all California residents to stay home or at their place of residence. This order has taken immediate effect and is in place until further notice.
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Ninth Circuit Holds Prior Salary Cannot Justify Wage Differences
Enacted in 1963, the Equal Pay Act prohibits differential payments between male and female employees doing equal work except when made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a fourth, catch-all exception for “a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). These exceptions are affirmative defenses which the employer must plead and prove.
In Rizo v. Yovino, 2018 U.S. App. LEXIS 8882, an en banc panel of the Ninth Circuit considered whether an employee’s prior salary was a permissible “factor other than sex” under the Equal Pay Act. Prior Ninth Circuit precedent held that “the Equal Pay Act does not impose a strict prohibition against the use of prior salary.” Kouba v. Allstate Insurance Co., 691 F.2d 873, 878 (9th Cir. 1982). Under Kouba, employers were prohibited from using a factor which “causes a wage differential between male and female employees absent an acceptable business reason.” Id., at 876.
On April 9, 2018, a bare majority of the 11 judge en banc panel of the Ninth Circuit overruled Kouba and held that “a legitimate ‘factor other than sex’ must be job related and that prior salary cannot justify paying one gender less if equal work is performed.” Rizo v. Yovino, 2018 U.S. App. LEXIS 8882, at *15. Writing for the majority, the late Stephen Reinhardt announced a bright-line rule that “prior salary alone or in combination with other factors cannot justify a wage differential.” Id., at *5-6. Five judges concurred in the result, but disagreed with the majority’s holding that prior salary can never suffice to constitute a “factor other than sex” sufficient to justify a wage differential.
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Mendoza v. Nordstrom – Day Of Rest Rule
The California Supreme Court issued its long awaited ruling in Mendoza v. Nordstrom, in which it clarified California’s so-called “day of rest” rule, which guarantees employees “one day’s rest therefrom in seven,” prohibits employers from “causing” its employees to work more than six days in seven, and exempts employees when, inter alia, the total hours of employment do not exceed 30 hours in any week or six hours in any one day. (Cal. Labor Code §§ 551, 552, 556.) Although part of California law since 1858 in one form or another, the day of rest rule had not been actively litigated until Plaintiffs Christopher Mendoza and Meagan Gordon brought a Private Attorney General Act claim against their former employer, Nordstrom, Inc. for allegedly failing to provide them, and other aggrieved employees, “one day’s rest therefrom in seven.” Nordstrom removed the case to federal court and prevailed at the district court level. On appeal, the Ninth Circuit asked the California Supreme Court to determine:
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