2018 Brings Salary History Prohibition: Employers Beware

Chris Micheli

Attorney and Lobbyist at the Sacramento government relations firm of Aprea & Micheli, Inc.


Starting January 1, 2018, all California employers will be prohibited from asking about a job applicant’s prior salary history. This prohibition applies to both public and private employers, regardless of size. Governor Jerry Brown signed AB 168 (Eggman) on October 12 as Chapter 688. This bill adds Section 432.3 to the Labor Code.

The bill has a number of provisions that affect California employers. For example, AB 168 prohibits an employer from relying upon salary history information for any applicant for employment. In addition, AB 168 prohibits an employer from seeking any salary history information. Note that “salary” includes compensation and benefits.

And don’t think that you can rely upon any third parties to gather this information. AB 168 extends this prohibition against seeking any salary history to employers personally and through an agent, whether orally or in writing.

There are two specified instances where this prohibition does not apply: (1) it does not apply to salary information available for public employees who are seeking a new position; and (2) a job applicant can “voluntarily and without prompting” disclose his or her salary history. In either of these two exceptions, an employer can consider or rely upon the voluntarily disclosed salary history information in determining that job applicant’s salary.

AB 168 includes an additional burden on California employers. The bill requires an employer to provide a job applicant with a “pay scale for a position” if the applicant makes a “reasonable request” for such a pay scale.

As new provisions of the Labor Code, violating any of these laws could subject an employer to private enforcement through the Private Attorneys General Act (PAGA). 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 over the objections by the California business community.

What should employers do? Do not solicit any salary information from job applicants. Make sure that your supervisors and others engaged in interviewing and hiring, as well as any job recruiters you use, have written instructions on how to comply with the new laws contained in AB 168.

Employers should also change their job application form if they have any references to prior compensation. Employers should also be aware that several local jurisdictions, such as San Francisco, have salary history ordinances with which you will have to comply.

Chris Micheli is a Principal at the Sacramento governmental relations firm of Aprea & Micheli, Inc.

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