From time to time we will offer advice and information from other experts on various topics. We are pleased to share with you this article by guest author James Wu on the new California Law AB168 that went in effect January 1st regarding questions about salary history. Are you prepared?
Are you looking for a new job, or hiring new employees, in 2018 in California? If so, there are two new California laws, effective January 1, 2018, that create new “taboo” topics that employers will be prohibited from asking on job applications and during the pre-offer hiring process. The new laws focus on “salary history information” and “criminal history information.” This article focuses on the law prohibiting California employers from asking job applicants for their salary history information. Here is a short summary of the new law, and some tips for both job seekers and employers for handling salary questions in an interview.
In 2017, the California Legislature introduced a whopping 2,495 bills. Hundreds of these bills had something to do with labor and employment issues. By the October 15, 2017 deadline, Governor Jerry Brown signed several of these into law.
Generally, What Is The New Law Regarding Salary Histories?
For quite some time, employers have been prohibited from asking job applicants about various “taboo” topics during the hiring process. For example, employers should not ask about pregnancies, religion, race, sexual orientation, and medical conditions, just to name a few. Following a growing trend across the country, the new California law (AB 168) prohibits employers from asking about salary history information from a job applicant. “Salary history information” includes both “compensation and benefits,” although the new law does not define these terms. In banning inquiries into salary history information, California joins other states and cities, including Delaware, Oregon, Massachusetts, New York City, Philadelphia and San Francisco. The bill will add section 432.5 to the California Labor Code effective January 1, 2018.
More Specifically, The Law Provides The Following:
Starting in 2018, California employers should add “salary history information” to the list of prohibited information. Specifically, the new law states the following:
- Employers may not ask (orally or in writing, or through an agent) for salary history information from an applicant. However, job applicants can voluntarily provide salary history information to prospective employers.
- Employers cannot utilize a job applicant’s salary history information as a factor in deciding whether to offer a job to the applicant.
- Employers cannot rely upon a job applicant’s salary history as a factor in deciding the salary for the job applicant.
- The new law does not prohibit employers from obtaining salary history information that is subject to public disclosure by law, including the federal Freedom of Information Act and/or California Public Records Act (typically regarding government employees, for example).
- The new law does not prohibit employers from asking current employees for salary history information.
- Employers must provide a job applicant with the pay scale for the job position sought by the job applicant if the applicant makes a reasonable request (“reasonable request” and “pay scale” are not defined in the law).
4 Tips For Job Seekers
- Be prepared for employers who still ask for salary history information. Change takes time. Employers may not know about the new law. And, even if they do, employers may not have updated job postings, application forms/online applications, and may not have trained job interviewers to avoid this new taboo topic. As a result, a job seeker in 2018 should be prepared to address this “salary history” question if it comes up, so strategize ahead of time to avoid any “deer in the headlights” response if/when asked for salary history. Also, think about whether you will say something like: “My understanding is that employers are no longer allowed to ask for salary history information,” and plan an artful transition.
- Employers may attempt to obtain salary-related information by asking applicants, “what are your salary and benefits expectations for this position,” for example. Here too job applicants should be prepared ahead of time regarding an appropriate response to this type of question. Notably, the California law does not explicitly prohibit this inquiry, however, it also does not explicitly allow this type of question. (In contrast, the New York City law expressly allows this type of question).
- Job seekers should also prevent unintended leaks of salary history information. If you do not want a prospective employer from obtaining your salary history, you may want to communicate with your current/prior employer that you do not authorize them to provide your salary history information to your prospective employers. This is so because many companies have a policy of providing generic information to a former employee’s prospective employer (usually, job title, dates of employment, and sometimes salary information). Similarly, employers often check public social media posts during the hiring process. Consequently, remember to review old social media post, profiles on job boards and websites, etc. that you may have posted containing salary information. One “public” post on Facebook saying something like “Hooray, just got a raise to $100,000.00,” will defeat all your attempts to avoid disclosing salary history information.
- Finally, you also should determine if you actually want to voluntarily provide your salary history information. If you do, you can. Similarly, job seekers have the ability to ask employers for the “pay scale” for the job to which they are applying. Before going to an interview, determine if, or under what circumstances, you will make that request.
4 Tips for Employers
- Immediately, employers should edit job applications and other forms used in the hiring process that still contain inquiries into salary history. Additionally, be sure to edit any “boilerplate” job posting language that is often used to request salary information, for example: “To apply for this position, please submit a cover letter, resume, and salary information.”
- Similarly, employers should review all template interview scripts and/or pre-offer screening processes and policies to delete questions prohibited by the new law.
- Human Resources managers, hiring managers, recruiters, and others involved in the hiring process must be trained and directed to avoid asking for salary history information. In addition, these same people must also understand how to handle and properly document salary history information that a job applicant voluntarily provides. Furthermore, they must also be trained to respond to a job applicant’s request for pay scale information (and, this information should be prepared in advance, along with factors -years of experience, education, etc.) considered when determining where along the pay scale an applicant may fall.
- Employers must also communicate and work with outside recruiters, background-check companies, staffing companies, and similar third parties to make sure that they are not requesting salary history information and passing that information along to the employer.
Each year, new employment laws are signed and impact California workplaces. 2018 will be no different. Job applicants and employers should remain informed about the new laws because it is likely that the Legislature or other government agencies will provide guidance and interpretation of the new law.
For over 21 years, James Wu has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation when claims and lawsuits do arise. After practicing at some of the nation’s leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. Learn more about James at www.jameswulaw.com and www.linkedin.com/in/jamesywu
DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.