California Legislature Clarifies Applicant Salary History Question Rules

This summer, Governor Jerry Brown signed Assembly Bill 2282, which resolves ambiguities created by earlier pay equity legislation in AB 1676 (2016) and AB 168 (2017). As you may recall, AB 168 prohibits questions about salary history on employment applications and during interviews. The law also requires employers to provide a pay scale to applicants on demand.  

AB 2282 clarifies that Labor Code section 432.3 does not prohibit an employer from asking an applicant for employment about his or her “salary expectation” for the position being applied for. The bill also defines several terms in Labor Code section 432.3.  specifically, pay scale means a “salary or hourly wage range”; a reasonable request for a position’s pay scale means “a request made after an applicant has completed an initial interview with the employer”; and applicant or applicant for employment means “an individual who is seeking employment with the employer and is currently not employed with that employer in any capacity or position.”

AB 2282 clarifies that an employer may make a compensation decision based on an employee’s current salary as long as any wage differential resulting from that compensation decision is justified by one or more of the lawful factors specified in Labor Code section 1197.5 (e.g., a seniority system, merit system, or bona fide factors other than sex such as education, training, or experience). This legislation provides a limited carve-out for using prior salary in a compensation decision in the case of a current employee (for purposes of giving employee raises or bonuses, for example).

What AB 2282 Means for Employers

The clarification in AB 2282 allows employers more flexibility in applicant interviews. While employers are still prohibited from asking what an applicant currently earns or what they earned in prior jobs, employers may discuss what a job candidate expects in pay for a particular job. Only individuals who have interviewed with the employer can request pay scales, although public employers’ pay schedules are typically available online and are public records. And the prohibition on salary-history questions applies only to new applicants, not currently employed internal candidates. 

If you have questions concerning the application of these requirements, please contact one of our AALRR Education Law attorneys.

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