Hunton Employment & Labor Perspectives

Under California law, an employee’s prior salary cannot be used to justify a pay disparity.  Now, the same is true under federal law – at least in the Ninth Circuit.

In Rizo v. Yovino, the Ninth Circuit recently ruled that an employee’s prior pay history is not a “factor other than sex” that can justify a pay gap under the Federal Equal Pay Act (“EPA”).  This outcome may not surprise employers in California, where state law expressly prohibits using prior salary as a basis for a pay disparity.  But unlike California’s statute, the federal law does not directly prohibit consideration of prior pay.  Rather, the Ninth Circuit looked beyond the plain language of the statute and examined the purpose of the “catch-all” exception, which permits pay differentials based on “any factor other than sex.” The Court concluded that this broadly worded exception “comprises only job-related factors.”

Does an individual who receives a single text message, in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), have standing to sue in federal court?  The answer, for now, depends on where the lawsuit is filed.