By Stacey Sommerhauser, SPHR, PHRca
Last year we wrote about the ban on asking applicants about their salary history (AB 168) prior to employment. This CA law was based, in part, on the belief that pay based exclusively on prior wages can be risky as it further perpetuates wage disparity, even if motivated by a non-discriminatory business purpose. At that time and throughout 2018 we had several questions from our clients regarding this law.
The good news is that now we have clarification from the CA Legislature. Assembly Bill 2282 defines and clarifies the terms “pay scale,” “reasonable request” and “applicant,” and specifies that an employer is not prohibited from asking an applicant for employment about salary expectations for the position being interviewed.
The bill clarifies that a pay scale (a salary or hourly range) need only be provided by the employer after a reasonable request (after an applicant has completed the initial interview with the employer) and isn’t required to be posted in the job posting or made available prior to the first interview. Current employees cannot request pay scales for other current employees as the term “applicant” has been defined to mean an individual who is seeking employment with the employer and is not currently employed. You may be thinking, “But I don’t have a pay scale. Do I need to create one?” Unfortunately, the law is silent as to whether employers must create pay scales where a pay scale doesn’t currently exist.
As you are aware, under the California Fair Pay Act employers are prohibited from paying wage rates less than rates paid to employees of the opposite sex or another race or ethnicity for substantially similar work. The measures addressed in AB 168 help allow that employers and workers are able to negotiate and set salaries based on requirements, expectations, and qualifications of the person and the job in question, rather than on an individual’s prior earnings. While it is now clear under AB 2282 that employers are permitted to ask applicants’ salary expectations (but never salary history), it is important to remember that “prior salary only shall not justify any disparity in compensation.
We recommend managers and supervisors who interview applicants for employment are properly trained in pre-employment inquiries. We also recommend providing the Department of Fair Employment and Housing’s (DFEH) Guide to Pre-Employment Inquiries to managers and supervisors who interview applicants. A copy of this guide can be found by clicking here.