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Legal Update: California makes it unlawful to ask potential hires about salary

What’s new?

New ground-breaking laws banning employers (or agencies on behalf of employers) from asking job applicants about current/previous salary are being implemented across the United States.

These laws are already effective in Puerto Rico and New York, and will go live across California from January 1 2018.

Delaware, Massachusetts and Oregon will also implement these laws and it is expected that other States and municipalities will adopt these laws in the foreseeable future.

What roles/candidates will this new law apply to?

From January 1, 2018, this new law will apply to any role based in California – regardless of where the candidate is from.

Robert Walters will not ask candidates applying for roles in California (or any of the other cities/States where the laws apply) about current/previous salary.

If you would like us to impose a US nationwide ban on asking candidates about current/previous salary, please let us know.

man discussing new salary law

Where this new law applies, what am I/ Robert Walters allowed to do?

  • Make statements about the anticipated salary, salary range, bonus and other financial benefits of a role. You are legally required to disclose the pay scale for a role if a candidate asks for this.
  • Ask a candidate what their expectations or requirements are in terms of salary, benefits, bonus, or commission structure (e.g. “what are you looking for?” “what would you accept?” “what would it take for you to accept?”).
  • Ask about objective indicators of a candidate’s performance in their current/prior roles e.g. profits/sales/revenue generated and books of business.
  • Ask a candidate’s current or former employer or search on-line to verify non-salary related information e.g. length of service, responsibilities, achievements. (If you accidentally discover any salary or benefits details, you must not rely on this information in making salary or benefits decisions.)
  • Ask to see a candidate’s current contract of employment to review any relevant restrictive covenants. The candidate should be instructed to redact any salary, bonus, benefits and other remuneration benefits provisions.

What am I/Robert Walters NOT allowed to do?

  • Ask a candidate what their current salary (or other financial benefits/comp) is.
  • Ask a candidate to confirm previous salaries (or other financial benefits/comp).
  • Make statements intended to solicit information about a candidate’s current or previous salary or benefits.
  • Ask a candidate’s current or former employer to confirm the candidate’s salary (or other financial benefits/comp).
  • Search public records to learn about a candidate’s current or previous salary or benefits (unless such salary history is disclosable to the public pursuant to federal or state law – like the California Public Records Act).
  • Make an offer based solely on salary information a candidate has voluntarily provided – e.g. if your company has a standard salary range for a particular role, you should not suggest a salary below that range simply because the candidate has voluntarily confirmed that they are currently earning below it.

What happens if you breach the new law?

Each State/city implementing the new laws will have different remedies, penalties, or fines for breaching the laws, sometimes reaching into the thousands of dollars.

If you would like to discuss any changes to our current practices as a result of this new law, please do not hesitate to contact us by emailing getintouch@robertwalters.com.