a factor in determining whether to offer employment or determining what salary to offer in most cases.
Employers will be prohibited from seeking salary history information (including compensation and benefits data) about an applicant, either personally or through an agent. An exception exists for salary history information that is disclosable to the public pursuant to federal or state disclosure laws such as the California Public Records Act and the federal Freedom of Information Act.
Further, upon reasonable request, employers must provide an applicant with the pay scale for the position being sought. The law does not define "pay scale."
Although the law prohibits an employer from inquiring about an applicant's salary history, an applicant may still, voluntarily and without prompting, disclose his or her salary history information to a prospective employer. In such an instance, although the employer may not consider that information in determining whether or not to hire the individual, the employer may consider or rely on that information in determining his or her salary. Still, employers may want to note that the strictures of California Labor Code Section section 1197.5 would still disallow prior salary, by itself, to justify any disparity in compensation.
As a result of this new development, all California employers may want to:
- revise their employment applications to remove requests for salary history;
- modify their screening and interview practices to eliminate questions about salary history;
- train hiring managers about permissible compensation questions to ask during an interview, as well as how to respond to requests for pay scale information and voluntary disclosure of salary history by an applicant;
- produce pay scale information to applicants upon reasonable request.
All federal and state background check requirements are summarized in Ogletree Deakins' O-D Comply: Background Checks and O-D Comply: Employment Applications subscription materials, which are updated and provided to O-D Comply subscribers as the law changes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.