California A.B. 168 will bar employers from using or seeking job applicants’ salary history. The law prohibits all employers, public and private, from using “salary history information” as a factor in determining whether to offer employment and what salary to offer to an applicant. Salary history information includes information about salary, compensation, and benefits, but the bill does not apply to salary history information that is disclosable to the public pursuant to federal or state law, such as under the California Public Records Act. The law further prohibits an employer from seeking salary history information from an applicant, orally or in writing, personally or through an agent (such as a manager or even a third party). The law also requires employers to provide the pay scale for a position upon an applicant’s reasonable request.
Technically, if an applicant voluntarily and without prompting discloses his or her salary history information to a prospective employer, the law doesn’t prevent the employer from considering or relying on that information to set the salary for that applicant, but the information still may not be used in determining whether or not to hire the individual. Still, it can be risky to rely on an applicant’s provision of information to consider salary history, as it could be difficult to demonstrate that the disclosure was in fact voluntary. Employers should also keep in mind that under the California Fair Pay Act, salary history alone cannot justify a gender or race disparity in compensation.
How to Prepare
-Update/revise job applications and hiring forms to remove questions seeking salary history information.
-Update/revise applicable hiring/interviewing/screening policies, procedures, and guidelines, to clarify that you can’t request salary history and will not use salary history unless otherwise permitted by law.
-Establish procedures to ensure delivery of pay scale information upon an applicant’s request.
-Provide training to all personnel involved in the hiring process to ensure they understand the restrictions and obligations of the new law.