One of the questions we employment attorneys are often asked by potential clients is whether or not it’s legal for an employer to ask a job applicant about his or her salary history. The simple answer is that it is not. Updates to the existing law were passed in July 2018 that further clarify some of the terms used in the law’s wording.
This article was written to briefly discuss the salary history ban, as well as the updates to California law banning salary history questions. If you have your own questions about California employment law, contact our office for more information.
Employers Who Ask Applicants About Salary History, What the Law Says
In October 2017 California approved Assembly Bill 168, which became codified as Labor Code §432.3. The law states:
“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.”
“An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”
The law further states:
“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.”
By limiting an employer’s power to inquire about salary history, the law seeks to focus an employer’s hiring decisions on an applicant’s abilities. This is important when one considers that qualified women often earn less than their male counterparts.
Updates to the Existing Law
Updates to the existing law, approved by the Governor in July 2018, sought to clarify certain terms previously undefined by the previous law.
Applicant is defined as follows:
“An individual who is seeking employment with the employer and is not currently employed with that employer.”
Pay scale is defined as follows:
“A salary or hourly wage range.”
Reasonable Requestis defined under the amended law as:
“A request made after an applicant has completed an initial interview with the employer.”
It’s important to note that if an applicant voluntarily discloses his or her salary history, the law does not prevent the employer from taking this information into consideration when making on a salary or wage decision.
Updates to the Law Regarding Salary and Wages for Existing Employees
Section 1197.5 of the Labor Code was amended to prohibit employers from paying similarly skilled male and female employees differently when these employees do similar work. The exception occurs when the wage difference is based on:
- A seniority system
- A merit system
- A system that measures earnings by quantity or quality of production
What This Means for California Employees
Simply put, if a potential employer begins an interview by asking you about your previous salary, or if a job application features a question asking you to list your salary history, that employer is acting unlawfully. This is something you might consider when deciding whether or not this is a company you want to work for.
Workers Who Blow the Whistle on Unlawful Behavior Could Be Entitled to Compensation
A whistleblower is an employee who reports a company’s unlawful behaviorto the authorities. Such authorities could include: a company supervisor, a police officer or a state agency.
If a company employee, perhaps a hiring manager or HR Rep, realized that his or her employer was acting unlawfully by asking about applicant salary history, that employee might feel compelled to report this unlawful behavior.
Our office has seen a number of cases in which an employee does the right thing by blowing the whistle on unlawful company practices, and experiences retaliation as a result. Whistleblowers might be fired, harassed, demoted or isolated. This retaliation is unlawful under the state’s whistleblower law, which is found in Labor Code §1102.5.
A person who successfully sues his or her employer for retaliation could be entitled to back pay, lost wages, pain and suffering damages, and in rare cases, punitive damages. If you believe you’ve suffered retaliation as the result of whistleblower activities, contact our office to schedule a consultation.
Have Questions? Ask Our Employment Attorneys
If you have a question about California’s salary history law, whistleblower law, or some other area of employment law, our office can address your concerns. While an unlawful salary history question might not be enough to initiate a lawsuit, it’s reasonable to believe that an employer who would act unlawfully in one area, might do so in another. If you believe you’ve been treated unlawfully by an employer, it might be worth your effort to contact an employment attorney to discuss your situation. Our office provides free consultations and takes cases on a contingency basis.
Feel free to contact the office of Odell & Freeze for more information.