November 2017 Newsletter – Community College Districts
Asking Salary History is now Off-Limits when Hiring
There already exist laws banning certain employment practices. For example, under the California Fair Employment and Housing Act (Govt. Code §§ 12900 et seq.) an employer cannot discriminate on the basis of factors including, but not limited to, race, religion, national origin and sex. A recently signed law has added another restriction. Specifically, Labor Code Section 432.3 now prohibits an employer from considering an applicant’s salary history as part of the hiring process.
Under the new law the employer cannot personally, or through an agent, make inquiries regarding the applicant’s salary history, including benefits. An employer is also prevented from considering salary history as a factor in whether or not to offer an applicant employment, or for determining what salary to offer an applicant. On the other hand the law requires that, on request, the employer provide the applicant the pay scale for the position for which that person is applying.
While the prospective employer cannot make inquiries about what the applicant was previously paid, the law has no bar to the applicant voluntarily, but without being prompted, disclosing his or her salary history to the employer. If the applicant does voluntarily provide this information, the employer is permitted to rely on and consider that history in determining the salary the applicant will be offered.
This new law applies to all employers including the state government, local governments and the legislature. However, it does not affect those instances under state and federal law, including the California Public Records Act and the federal Freedom of Information Act, where salary information is allowed to be disclosed to the public.
While under Labor Code section 433 certain discriminatory hiring practices are misdemeanors; this section does not apply to this new law. However, in line with Labor Code section 1197.5, which prohibits pay discrimination on the basis of sex, race and ethnicity, under section 432.3(i), prior salary alone cannot be a basis to justify any disparity in compensation for employees engaged in substantially similar work.
If you have any question or concerns, or if you wish to further discuss any of these issues, please feel free to contact our law firm.
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