California is joining other states and municipalities in prohibiting employer inquiries into the salary history of job applicants.

Beginning January 1, 2018, AB 168 will prohibit employers from seeking salary history information or relying on the salary history information regarding applicants for employment.

What, Exactly, is Prohibited?

AB 168 makes it unlawful for an employer to seek salary history information, orally or in writing, personally or through an agent, about an applicant for employment. Note that "Salary history information" includes compensation and benefits.

In addition, AB 168 prohibits an employer from relying on the salary history information of an applicant as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. In contrast to last year's AB 1676, which specifically provided that salary history could not, "by itself" be used to justify pay inequality, but it could still be a relevant factor, AB 168 states that an employer cannot rely on salary history as "a factor" at all.

The new law specifies that it does not prohibit an applicant from "voluntarily and without prompting" disclosing salary history information to a prospective employer. If the applicant does so, the employer may consider or rely on that information in determining the salary for that applicant.

In addition, the new law provides that it does not apply to salary history information disclosable to the public pursuant to federal or state law, such as the California Public Records Act or the federal Freedom of Information Act. Salary information for public employees is largely a matter of public record.

What Does the Law Require Employers to Provide?

The law requires an employer, upon reasonable request, to provide the pay scale information to an applicant applying for employment. So, if an applicant inquires as to how much a specific position pays, the employer is required to provide the pay scale for that position.

What Should You do Now?

January 1st is right around the corner, so employers will want to take action now.

Start by reviewing applications, scripts and talking points used by interviewers and recruiters, internal or external. Include any other formal or informal application and recruiting documentation in the review, and remove any language touching on salary history.

Next, all staff involved in the hiring process should be trained about the law's new requirements and what inquiries and questions are permissible and not permissible.

Finally, the exception in AB 168 allowing employers to lawfully consider salary history when it is voluntarily disclosed brings up important points:

• First, any discussion of salary history must be explicitly initiated by the applicant.
• Second, if the applicant is eventually offered a salary that is either higher or lower than that of employees performing substantially similar work, there must be at least one other unassailable factor in place (differential education, training, experience, etc.) justifying the disparity.

Let us know if we can help! Please Contact Us with your questions about AB 168.

Preferred Partner of