A new California law (AB 168) was signed by Governor Jerry Brown on October 12, 2017 that prohibits employers from inquiring about the salary histories of its job applicants. AB 168, which takes effect on January 1, 2018, and applies to all California employers (including state and local governments) represents an expansion of California’s fight against the gender wage gap. Gender wage discrimination is already unlawful in California, but AB 168 goes a step further by banning salary history inquiries in most circumstances.

The Law

AB 168 specifically provides for the following:

• Employers cannot seek salary history information (including compensation and benefits) for job applicants, whether it be done orally or in writing, or personally or through an agent.
• An employer cannot rely on the salary history information of a job applicant as a factor in determining both (1) whether to offer employment to the applicant or (2) what salary to offer the applicant.
• Upon reasonable request, an employer must provide the pay scale for the job position to the job applicant.

Limited Exceptions

AB 168 provides certain limited exceptions. The law does not apply:

• To salary history information disclosable to the public pursuant to federal or state law, including the California Public Records Act or the federal Freedom of Information Act.
• If the job applicant “voluntarily and without prompting” discloses his or her salary history information to the prospective employer.

In the latter case, the employer still cannot consider salary history information in determining whether or not to the hire applicant, but can consider salary history information in determining the applicant’s salary (if it hires the applicant). It is important to remember, however, that prior salary cannot, by itself, justify any disparity in compensation under California Labor Code Section 1197.5.

Other Jurisdictions

California now joins a handful of other states that restrict or ban salary history inquiries, including Delaware, Massachusetts, New York, and Oregon. Other U.S. territories (Puerto Rico) and municipalities (New York City, Philadelphia, San Francisco) have also enacted similar laws.

What Employers Should Do Next

Employers in California should modify their employment applications to ensure they do not contain any salary history inquiries. California employers should also update company practices related to job interviews, and train employees, to make sure that interviewers do not ask applicants any questions related to salary histories. If an applicant volunteers such information or requests a pay scale, employers should also prepare interviewers on how to respond.

Should you have any questions, please contact your BakerHostetler Employment attorney.

Authorship credit: Vartan S. Madoyan and The Los Angeles Employment and Labor Team