Grinberg: Gender Pay Disparity and Average Weekly Wage

Thursday, April 21, 2022 | 0

OK, dear readers, pop quiz: How do you calculate temporary disability benefits for a full-time, regular employee?

Gregory Grinberg

You’d typically take the average weekly wage for the 52 weeks prior to the date of injury and then divide that sum by 1.5, right? Sometimes you might adjust for increased wages (such as a union raise) or you might make sure the rate is not below or above the statutory minimum and maximum.

Well, if Sacramento has its way, that won’t be the end of it. Allow me to bring to your attention Senate Bill1458, introduced by Sen. Monique Limon, a Democrat representing the 19th Senate District. 

Sen. Limon’s bill would add Labor Code 4453.1 to the labor code, which would increase the average weekly wage calculation “by the percentage of disparity in earnings between genders as reported by the applicant’s employer in its pay data report to the Department of Fair Employment and Housing” if the applicant’s average weekly wage is less than that of the opposite gender.

If the employer made no such report to DFEH, SB 1458 would require an increase based on the United States Department of Labor Statistics.

Of course, this added temporary and permanent disability benefit is not going to come out of Sen. Limon’s pocket. The legislation would make the employer not only bear the cost of these calculations and open the door for further litigation on the proper TD and PD calculation, but it would also make the employer pay the burden of the added benefit. 

This legislation, of course, flies in the face of the history of case law that bases average weekly wages on earning capacity. Would a worker injured on his first day on the job be expected to make the same wage as employees who had been at a particular company for several years? 

I hope with all my heart that SB 1458 never becomes law, but if it does, the additional burden on claims administration will be significant. Claims adjusters will have to determine the following:

• The gender of the injured worker (and I am willing to bet that we will see a case where the meaning of the word “gender” is litigated).
• The average weekly wages for the applicant.
• The percentage of difference of the average weekly wage for the opposite gender.
• The disparity between the two.

Of course, the legislation does not provide for the opposite: If a particular gender is making less than the injured worker, the employer does not get a break by reducing the TD by the disparity.

The bill for having the doors open and the lights on in California just keeps getting bigger, no?

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.