Compliance/Best Practices Employment Law Legal Topics

Law Is Clarified on Using Prior Salary of Job Applicants

In 2017, California enacted a law precluding employers from asking about prior salary history and requiring employers to give applicants, on reasonable request, the pay scale for a position. This law raised many questions for employers, including who’s “an applicant,” what’s a “pay scale,” and what constitutes a “reasonable request?” Now we have the clarifications.

Here’s the bottom line: Employers can’t use an applicant’s salary history as a factor in deciding whether to offer employment or in determining the salary to offer the applicant. Lab C §432.3(a).

This common practice in the past had the impact of keeping certain categories of workers, e.g., women, in lower salary ranges.

Who’s an applicant? An “applicant,” as used in Lab C §432.3, means an individual who’s seeking employment with the employer and isn’t currently employed with that employer in any capacity or position. Lab C §432.3(k).

What’s a pay scale? A pay scale is the salary or hourly wage range for a position.

What’s a reasonable request for a pay scale? Employers must provide the pay scale to an applicant who requests it after completing his or her initial interview with the employer. Lab C §432.3(c).

What employers may not do: Employers may not in any way try to get an applicant’s salary history. Lab C §432.3(a)–(b). And, even if they learn of the applicant’s prior salary, they may not use it to justify any disparity in compensation. Lab C §432.3(j).

What employers may do: Employers may consider or rely on salary history when an applicant voluntarily and without prompting discloses that information. Lab C §432.3(g)–(h). And it’s fair game for an employer to ask an applicant about his or her salary expectation for the position being applied for. Lab C §432.3(i).

Questions for applicants can be a minefield for employers. Check the hiring guidelines in chapter 1 of CEB’s Advising California Employers and Employees for more “do’s and don’ts.” Also, get more on wage requirements under California law in chap 5 of that book.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

One reply on “Law Is Clarified on Using Prior Salary of Job Applicants”

Is it me or does the LC 432.3(i) exception swallow the rule?

Having been both a hiring manager and a job applicant, I know you don’t have to ask a person what their earning history was in order to get this information. You just ask them what their salary expectation is. The overwhelming number of job applicants are hoping the new job will pay at least what their old job paid. I’ve sat through many job interviews where the applicant outright told me, without any prompting, how much s/he made at their last job and that they were looking for a job that would pay at least that amount. Over time, I came to realize that asking them for their salary expectation was no different than asking for their salary history.

So this law still allows employers to discriminate against people, they just have to be a little less obvious about it.

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