California Bans Salary History Questions, Restricts Criminal History Inquiries

Author: David B. Weisenfeld, XpertHR Legal Editor

October 16, 2017

California Governor Jerry Brown has signed into law two measures that restrict employers from asking job applicants about salary and criminal history. Both laws are effective January 1, 2018.

The law banning salary history inquiries prohibits all employers from asking job applicants about their salary history both orally and in writing. The new law also bars employers from relying on an applicant's prior compensation in determining what salary to offer.

While an employer may consider salary history information if an applicant discloses it voluntarily and without prompting, the employer still may not rely solely on prior salary in determining what to offer. In addition, an employer must provide applicants with pay scale information for a position upon reasonable request.

Like other states' laws that restrict salary history inquiries, California's law aims to reduce wage inequality between men and women. According to the Bureau of Labor Statistics, the median weekly earnings of women working full-time in California in 2016 was 88% of their male counterparts.

The only other states that have enacted a salary history inquiry ban include:

The California law also has an exception for inquiries about salary history information disclosable to the public under federal or state disclosure laws, including the California Public Records Act and the federal Freedom of Information Act.

Banning the Box for Private Employers

The second new measure signed into law bans private employers with five or more employees from asking about or considering a job applicant's criminal history until after a conditional employment offer is made. The law also prohibits employers from considering convictions that have been sealed, dismissed, expunged or otherwise statutorily erased.

This measure is part of the nationwide "ban the box" trend. It means that many California employers must remove the box on job applications that prospective employees are often asked to check off if they have a criminal conviction. The law also bans criminal history questions from initial job applications. In addition, employers also will have to forego asking such questions during a job interview or conducting a background check before making a conditional employment offer.

Even after an employer lawfully conducts a background check and decides that an applicant's criminal history disqualifies the individual from employment, the employer must:

  • Make an individualized assessment of whether the applicant's conviction history relates to the specific job duties;
  • Notify the applicant in writing of the preliminary decision;
  • Grant the applicant at least five business days to respond before the employer makes a final decision; and
  • Give the applicant an additional five business days to dispute the accuracy of his or her criminal history record and seek evidence to support that contention.

Los Angeles and San Francisco already have broad "ban the box" laws, but this new measure makes the prohibition statewide. California becomes the 10th state with a "ban the box" law covering private employers.