Salary history bill will not apply to information available for public employees

2017 LEGISLATIVE SESSION

Gov. Jerry Brown signed Assembly Bill 168 last week, adding Section 432.3 to the California Labor Code primarily to preclude the use of salary history information in employment situations.

First, the bill prohibits an employer from relying upon salary history information for any applicant for employment when deciding whether to offer employment or what salary to offer to that job applicant. This provision is contained in Section 432.3(a).

Second, an employer is prohibited from seeking any salary history information, which is defined to include compensation and benefits, about any applicant for employment. This prohibition applies personally or through an agent, whether orally or in writing. This provision is contained in Section 432.3(b).

Third, an employer must provide a job applicant with a "pay scale for a position" if the applicant makes a "reasonable request" for such a pay scale. This provision is contained in Section 432.3(c).

Fourth, this Labor Code section does not apply to salary history information that is otherwise disclosable to the public pursuant to federal or state laws, such as the California Public Records Act or the federal Freedom of Information Act. As such, this provision would not apply to salary information available for public employees who are seeking a new position. This provision is contained in Section 432.3(e).

Fifth, this Labor Code section applies to all public and private employers, and specifically includes state and local governments as well as the Legislature. This provision is contained in Section 432.3(f).

Sixth, nothing in this new law prohibits a job applicant from "voluntarily and without prompting" disclosing his or her salary history information to any prospective employer. In such a case, an employer is not prohibited from considering or relying on that voluntarily disclosed salary history information in determining that job applicant's salary. These provisions are contained in Sections 432.3(g) and (h).

Finally, the new law reiterates existing state law found in Labor Code Section 1197.5 that prohibits prior salary, by itself, to justify any disparity in compensation. This provision is contained in Section 432.3(i).

As new provisions of the Labor Code, they are subject to private enforcement through the Private Attorneys General Act. PAGA allows representative actions for violations of the Labor Code. Even though the governor vetoed an earlier version of this bill, this year he signed it in a ceremony with the Legislative Women's Caucus despite strong objections by the California business community.