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”).