New law to ban inquiries into salary history
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My most recent column discussed a new law that will bar California employers from seeking or considering an applicant’s record of criminal conviction before making a conditional offer of employment. In the New Year, California employers also will be prohibited from considering, or inquiring into, an applicant’s salary history unless the applicant discloses that information “voluntarily and without prompting” from the employer.

The new law bars an employer from relying on an applicant’s pay history in deciding both what salary to offer the applicant and whether to offer the applicant a job at all. Employers also will be barred from seeking an applicant’s salary history information “orally or in writing, personally or through an agent.”

An employer must provide the applicant with the pay scale for the position “upon reasonable request.” An employer may be able to satisfy this obligation by including the salary range in posted or published announcements of the job opening.

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If an applicant voluntarily discloses his or her salary history, the employer may consider that information “in determining the salary for that applicant,” though probably not as a baseline for the salary offered to other applicants.

This is the latest legislative effort toward closing the gender gap in wages. According to the author of the measure, closing that gap “starts with barring employers from asking questions about salary history so that previous salary discrimination is not perpetuated.”

Employers should do four things no later than Jan. 1.

First, employers should remove any question on their job applications or online postings seeking an applicant’s salary history. California employers operating in additional states should revise their application forms to excuse California applicants (and those in other states and cities with similar laws) from responding to any such prompt.

Second, employers should establish a salary range, or fixed salary, for every position for which they are hiring. Information about the salary range by location for categories of positions is available from the federal Bureau of Labor Statistics and the Society for Human Resource Management. Armed with that information, the employer may set a salary range for the particular position based on the unique features of the job being filled and based on what the employer is willing and able to pay. Employers should avoid posting or publishing a salary range that would “artificially limit an applicant’s interest in a position,” as opponents of the measure warned that it could.

Third, employers should ensure that salaries are negotiated within the framework of the new law. Opponents of the salary range provision argued that the appropriate “salary to pay an applicant is based upon various factors and employers may feel compelled to enlarge the pay scale in order to create sufficient room to adjust the rate depending on these factors and varied candidates for the job.” Now that the measure is law, the important point is that negotiation over salary still will be allowed, but open-ended salary negotiations, if the applicant exercises her right to request the salary range, will not.

Fourth, employers should train those who interview job applicants not to prompt applicants to disclose their salary history. Opponents of the measure suggested that an employer could be subject to penalties and attorney’s fees for asking about an applicant’s prior salary, even if the employer, say, ultimately pays a female applicant more than any of her male colleagues.

The new law enters uncharted territory with no certainty it will work as intended. That’s why Governor Jerry Brown vetoed a similar measure two years ago. It may take years to evaluate the law’s effectiveness. Now is the time for California employers to take steps to prepare to comply with the new law to avoid missteps in the New Year.


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