San Francisco Bans Salary History Questions

Author: David B. Weisenfeld, XpertHR Legal Editor

July 12, 2017

California is often at or near the forefront when it comes to new developments affecting employers, and that's even more true at the municipal level. San Francisco has become the latest city to pass a measure prohibiting employers from asking prospective employees about their salary history. The new ordinance will ban employers, including city contractors and subcontractors, from considering a job applicant's current or past salary in deciding whether to hire them or what salary to pay them.

Effective July 1, 2018, the ordinance prohibits any questions about an applicant's current or past salary. It also bans employers from disclosing a current or former employee's salary history without the individual's authorization, unless the salary history is publicly available or is subject to a collective bargaining agreement.

There will be a one-year period for employers to adjust to the new law, during which San Francisco will issue written warnings and notices to offending employers, but will not otherwise penalize them. Effective July 1, 2019, however, San Francisco employers may be subject to fines, and the city attorney's office may file lawsuits for egregious violations.

California management-side employment attorney Anthony Oncidi, who heads the labor and employment practice group at the Los Angeles office of Proskauer, is concerned about both the San Francisco ordinance and the growing trend of cities expanding employment law. "This recent trend of letting a thousand flowers bloom, which results in every city and county in the state enacting its own workplace restrictions, is no way to run a railroad - law-abiding employers simply can't keep up," said Oncidi.

He noted that the California legislature already addressed this issue last year (albeit on a more limited level) with AB 1676, which says that an employer may not rely exclusively upon an applicant's salary history to justify a pay disparity.

Elsewhere, Delaware, Oregon and Massachusetts have enacted broad salary history inquiry bans. But at the municipal level, New York City and Philadelphia have passed salary history measures that go further than state law.

These measures aim to close the wage gap between male and female applicants for doing the same or similar work. The San Francisco ordinance noted that women in the city are paid on average 84 cents for every dollar a man makes while the numbers are even more stark for minority women. For instance, African-American women are paid only 60 cents for every dollar paid to men, and the number drops to 55 cents for Latina women.