Employers Cannot Request Salary History of Applicants

On October 12, 2017, Governor Brown signed into law AB 168, which prohibits employers from asking about a candidate’s salary history as part of its determination as to whether to offer employment, or how much to pay. The new Labor code section 432.3, which takes effect on January 1, 2018, also requires employers to provide the pay scale for the position for which the candidate is applying, upon “reasonable request” by the candidate.

The exceptions are, first, that employers may consider salary information that is publicly available pursuant to federal or state law (e.g., under the California Public Records Act or the Freedom of Information Act). Second, salary history may be discussed if an applicant “voluntarily and without prompting” discloses it to his or her potential employer. However, even then, an employer cannot rely solely on prior salary to justify pay disparities.

Employers (and recruiters) should therefore review their employment applications and remove portions seeking wage or benefit information. Managers and interviewers must be trained not to ask candidates questions about salary history. Notably,m this new law applies to employers of any size.

Moreover, employers will need to develop a salary range each job position in California in order to respond to the “reasonable requests” of applicants for this information. It is not clear what information must be included in the pay scale, including whether it includes incentives.

Although the statute does not specify penalties for non-compliance, this could form a predicate for a claim for penalties under the Private Attorneys General Act (“PAGA”).

Ninth Circuit Clarifies “Day of Rest” Rule in Dismissing PAGA Claim

In Mendoza v. Nordstrom, Inc., 9th Cir. No. 12-57130 (8/03/2017), the Ninth Circuit affirmed a judgment against Nordstrom, Inc. for violation of California’s “day of rest” law. Plaintiff Christopher Mendoza had argued that Nordstrom violated Labor Code section 551, which grants employees a right to one “day’s rest” in seven and section 552, which provides that no employer “shall cause his employees to work more than six days in seven,” and thus was subject to penalties. Mendoza had claimed that he had worked more than six days three times during his employment, including times where he worked 11, 7, and 8 days. The district court had held that the seven-day period was “rolling” and based on any consecutive 7-day period, rather than based on a workweek, but that here this did not apply because Nordstrom employed Mendoza for six hours or less “on at least one day” of a week, triggering an exemption under section 556, and that there was no coercion (Mendoza willingly performed the work).

On appeal, the Ninth Circuit held that the District Court was incorrect on two counts.
First, sections 551 and 552 should be based on a workweek basis, such that each 7-day workweek (usually Monday through Sunday or Sunday through Saturday) operated as its own 7-day period. Employees are only entitled to one day of rest in each workweek. Second, the Court held that the exemption under section 556 only applied if the employee did not work more than 6 hours in any day of a workweek,, not just one day of a workweek.

However, the district court’s errors did not change the ultimate result because Mendoza (and other plaintiffs) were not “aggrieved employees” under the Private Attorneys General Act, because in each instance in which they worked 7 or more days in a row, those days were split over two workweeks, and in each one of those workweeks there was at least one day of rest. Therefore, a dismissal of the PAGA claim was appropriate.

Cal. Supremes Affirm Discovery Rights to PAGA Plaintiffs

In Williams v. Superior Court, Cal. Ct. App. Case No. S227228 (7/13/2017), the California Supreme Court held that a plaintiff in a claim under the Private Attorneys General Act (PAGA) may conduct discovery regarding the identities of other aggrieved employees to the same extent as in a class action. Further, a trial court cannot require a plaintiff to make a prima facie case as a condition of compelling the defendant to disclose employee contact information.

Briefly, Michael Williams worked for a Marshalls department store, and claimed that Marshalls failed to provide compliant meal and rest periods under California law, including because company policy resulted in stores being understaffed and managers had the authority to revise employee time records to eliminate meal break violatoins. statements.

After the case was filed, Williams sought the personal contact information of all California hourly employees during the statutory period. The trial court conditioned the disclosure of contact information on Plaintiff making a “threshold showing” of merit after having his deposition taken. The Court of Appeal rejected Williams’ writ petition. The California Supreme Court granted review.

At the outset, the Court noted that “Williams was presumptively entitled to an answer to his interrogatory seeking the identity and contact information of his fellow Marshalls employees.”
In reviewing Marshall’s objection that the request was overbroad, the Court explained that because the objection did not involve privilege, the question of discoverability depended on whether the request was “reasonably calculated to lead to the discovery of admissible evidence,” i.e., within the scope of discovery.

Second, the Court found that the interrogatory was not unduly burdensome, and even if there is some burden, the trial court should consider alternatives less than completely barring discovery to address that burden. But the Court found that simply providing contact information is not unduly burdensome, although seeking detailed payroll and timekeeping documentation may give rise to such an objection.

Finally, the Court held that there was no sufficient privacy interest in the identities of the aggrieved employees to preclude production and that it was too high of a threshold to require a “compelling need” to produce such information.