Schedule a Consultation: 858.483.9200

Deceased Judge’s Vote Does Not Count

Much ado has been made in the news recently about the US Supreme Court’s decision in Yovino v. Rizo, No. 18-272 (February 25, 2019). In Yovino, the Supreme Court vacated a decision by the US Ninth Circuit in San Francisco because the decision included the vote a deceased judge. The Supreme Court vacated the decision and sent it back to the Ninth Circuit for reconsideration from only the living members of the court. See news report here.

The Yovino case is interesting for a couple of reasons. One, it is important for San Diego businesses to understand the litigation process. For example, in general, at the trial level, the parties involved in litigation have one judge that presides. However, on appeal, there are generally three appellate judges that review what happened at the trial level. Democracy rules and, thus, an appellate decision can be rendered by a 2 to 1 vote. However, occasionally, what is decided by a panel of three appellate judges is reviewed by a super-panel of the appellate judges for that circuit, usually 11 appellate judges for the Ninth Circuit. This is what happened in the Yovino case. At the trial level, Yovino lost. On appeal, she was victorious before a panel of three judges and was again victorious before the en banc Ninth Circuit. However, just before the decision was released, one of the judges died unexpectedly but his vote was still counted. The US Supreme Court sent the case back noting that “federal judges are appointed for life, not for eternity.”

The Yovino case is also important for the legal issue that was being decided — whether an employee’s salary history can be used as a factor in determining what salary to pay. The Ninth Circuit ruled in Yovino decision that using prior salary history was a violation of the federal Equal Pay Act. This was new law and the Yovino decision reversed previous law that held salary history was not a violation of the Equal Pay Act. Technically, with the Supreme Court’s decision, the previous law is put back in place.

However, as a practical matter, Yovino is not particularly relevant to San Diego employers since California has its own version of the Equal Pay Act, the California Equal Pay Act. See Cal. Labor Code, § 1197.5 (and §432.3). See DIR Info page here.

The California Act makes it clear that salary history cannot be used to justify pay disparity. The Act states:

“Prior salary shall not justify any disparity in compensation. Nothing in this section shall be interpreted to mean that an employer may not make a compensation decision based on a current employee’s existing salary, so long as any wage differential resulting from that compensation decision is justified by one or more of the factors listed in this subdivision.”

Among the factors that can be used by employers include systems that account for

  • Seniority
  • Merit
  • Production or productivity and/or
  • A “bona fide factor other than sex, race, or ethnicity”

Contact San Diego Corporate Law Today

For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard provides legal services related to business law and corporate matters. Like us on Facebook.

You Might Also Like:

San Diego Business Law: Updating Your Company Sexual Harassment Policies

Can I Use GPS or Phone Apps to Track My San Diego Worker’s Movements?

FAQs About Forming a California Corporation

Five Hallmarks of a Well-Drafted Company Harassment Complaint Form

San Diego Employment Contracts: Do Businesses Need Morality Clauses?

Need a Corporate Attorney?


Schedule a Consultation: 858.483.9200