Asking Job Applicants Salary History

California Assembly Bill 168 took effect in October, 2017. This legislation bars employers from asking job applicants about salary history when applying for a position. Employers are also required to provide a pay scale for a position if the applicant asks.

Below, our California wage and hour lawyers discuss the following frequently asked questions about interviews and salary laws for California employees:

Salary
If an employer asks about an applicant’s salary history in violation of California employment law, the applicant may be able to file a complaint or file a lawsuit against the employer.

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Can employers ask about my salary history when applying for a job?

Employers in California cannot ask job applicants about their salary history. If an applicant asks, employers have to provide a salary range for the position.

Employers in California are now:

  • Prohibited from relying on an applicant's salary history as a factor in determining whether to offer employment or what salary to offer;
  • Prohibited from seeking salary history information, including compensation and benefits, about an applicant; and
  • Upon reasonable request, an employer shall provide the pay scale for a position to an applicant.1

California Governor Jerry Brown signed Assembly Bill 168 into law in October of 2017. The new law goes into effect on January 1, 2018. Assembly Bill 168 prohibits California employers from asking about an applicant's prior salary. If an applicant asks, employers are also required to provide a pay range for the job. 2

According to the bill's sponsor, the law will help reduce the gender wage gap in California. Similar laws have been passed in other states and cities, including San Francisco.

The law applies to all employers in California, including state and local government employers.3

2. Why can't employers ask about salary history?

California already has laws which prohibit pay disparity based on sex. The California Equal Pay Act requires employers to pay employees who perform “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”4

Salary history can reinforce pay inequality based on sex, race, or other types of discrimination. Employers can use salary history as a way to pay some employees less than others. Prohibiting questions about salary history is a way to compensate employees based on job skills and experience.

According to the legislative text, “this bill would specify that prior salary cannot, by itself, justify any disparity in compensation under the bona fide factor exception to the above prohibition. By changing the definition of an existing crime, this bill would impose a state-mandated local program.”5

The California Fair Pay Act and California Equal Pay Act are intended to reduce the pay disparity in how men and women are compensated for performing similar jobs. An employer cannot pay men and women different salaries for similar work, except where the employer can demonstrate the wage differential is based on one or more of the following factors:

  • A merit system
  • A seniority system
  • A system which measures earnings by quantity or quality of production
  • A bona fide factor other than sex (such as education, training, or experience)6

If an employer is accused of violating the equal pay laws, the employer has to demonstrate that the bona fide factor is:

  • Not based on or derived from a sex-based differential in compensation;
  • Job-related with respect to the position in question; and
  • Consistent with a business necessity.

A “business necessity” is “an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve.”7

Even if the employer is able to demonstrate that a bona fide factor other than sex was used to differentiate compensation, the defense does not apply if the employee shows that an alternative business practice exists that would serve the same business purpose without the wage inequality.8

Employers who violate the Equal Pay Act are liable to employees for unpaid wages and interest. In addition, the employee may be able to recover an additional equal amount as liquidated damages.9

3. Can I ask about an employer's salary history for a position?

Upon a reasonable request by an applicant, an employer is to provide the pay scale for a position.10

Employers are not required to list a salary range for a job ad or job offer. Employers are also not required to tell an applicant the salary range for a position unless the applicant makes a request.

During an interview, an employer cannot ask about the applicant's prior salary. However, the applicant can ask the employer about the salary range for a position.

4. Do I have to tell an employer how much I made at my last job?

Applicants are free to tell employers their prior salary. According to the bill, the law “ would not prohibit an applicant from voluntarily and without prompting disclosing salary history information and would not prohibit an employer from considering or relying on that voluntarily disclosed salary history information in determining salary, as specified.”11

Some applicants may want to tell an employer about their prior salary history. If an employer gives a salary range that is lower than the applicant's prior salary, the applicant can use his or her prior salary as a negotiation measure to seek a higher salary.12

However, if an applicant does voluntarily disclose salary history information to an employer, the employer may be able to consider that information in determining the salary for the prospective applicant.13

5. What happens if an employer asks about my salary history?

If an employer asks about an applicant's salary history in violation of California employment law, the applicant may be able to file a complaint or file a lawsuit against the employer.14

An applicant filing a lawsuit against an employer based on requesting a salary history may be able to seek money damages or equitable relief. Employees or applicants who have can also seek to recover the costs associated with bringing the lawsuit, and have the employer reimburse their expenses for attorney's fees and court costs.15

Call us for help...

For questions about California's salary history laws and gender discrimination, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.


Legal References:

  1. Labor Code 432.3 LC (“(a) An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. (b) An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment. (c) An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”)
  2. California Assembly Bill 168.
  3. California Assembly Bill 168 (“The bill would apply to all employers, including state and local government employers and the Legislature and would not apply to salary history information disclosable to the public pursuant to federal or state law.”)
  4. California Assembly Bill 168.
  5. Labor Code 1197.5 LC -- Wages, Hours and Working Conditions. (“(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates: (1) The wage differential is based upon one or more of the following factors: (A) A seniority system. (B) A merit system. (C) A system that measures earnings by quantity or quality of production. (D) A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity.”)
  6. California Assembly Bill 168.
  7. Labor Code 1197.5 LC see footnote 5 above.
  8. Same.
  9. Labor Code 1197.5 LC(a)(1)(D) (“A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.”)
  10. Labor Code 432.3 LC see footnote 3 above.
  11. California Assembly Bill 168.
  12. Labor Code 432.3 LC (“(g) Nothing in this section shall prohibit an applicant from voluntarily and without prompting disclosing salary history information to a prospective employer.”)
  13. Labor Code 432.3 LC (“(h) If an applicant voluntarily and without prompting discloses salary history information to a prospective employer, nothing in this section shall prohibit that employer from considering or relying on that voluntarily disclosed salary history information in determining the salary for that applicant.”)
  14. Labor Code 1197.5 LC -- Wages, Hours and Working Conditions. (“(c) Any employer who violates subdivision (a) or (b) is liable to the employee affected in the amount of the wages, and interest thereon, of which the employee is deprived by reason of the violation, and an additional equal amount as liquidated damages.”)
  15. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.”)

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