Overview. On October 12, 2017, Governor Jerry Brown signed AB 168, prohibiting California employers from asking job applicants about their salary histories. California joins Delaware, Massachusetts and Oregon in this effort to close the pay gap in the workplace.
Details. California’s Fair Pay Act already prohibits pay discrimination, but it does not prohibit salary history inquiries. AB 168 adds Section 432.3 to the California Labor Code, which will not only prohibit salary history inquiries but also prohibit employers from relying on an applicant’s salary history as a factor in determining whether to offer employment or determining what salary to offer in most cases.
Employers will be prohibited from seeking salary history information (including compensation and benefits data) about an applicant, either personally or through an agent. An exception exists for salary history information that is disclosable to the public pursuant to federal or state disclosure laws such as the California Public Records Act and the federal Freedom of Information Act.
Further, upon reasonable request, employers must provide an applicant with the pay scale for the position being sought. The law does not define “pay scale.”
As in other states, where employers are prohibited from inquiring about an applicant’s salary history, an applicant may still, voluntarily and without prompting, disclose his or her salary history information to a prospective employer. In such an instance, although the employer may not consider that information in determining whether or not to hire the individual, the employer may consider or rely on that information in determining his or her salary.
Call to Action. All California employers should revise their employment applications to remove requests for salary history; modify their screening and interview practices to eliminate questions about salary history; train hiring managers about permissible compensation questions to ask during an interview, as well as how to respond to requests for pay scale information and voluntary disclosure of salary history by an applicant; and prepare to produce pay scale information to applicants upon reasonable request.