Can Calif employers ask job applicants about salary history? (2024)

When you are applying for a job in California, Labor Code 432.3 (a) prohibits the employer from asking you about your salary history and (b) requires the employer to provide a pay scale for the position if you request one.

Below, our Los Angeles labor and employment law attorneys discuss the following frequently-asked-questions:

• 1. Can employers ask about my salary history when applying for a job?
• 2. Why not?
• 3. Can I ask about an employer’s salary range for a position?
• 4. Can I tell an employer how much I made at my last job?
• 5. What happens if an employer asks about my salary history?
• 6. What if I get the job?
• Additional Reading

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Can employers ask about my salary history when applying for a job?

No. When you are applying for a job in California, employers cannot ask you about your salary history or the value of your benefits (such as health insurance policy limits). Nor can employers try to track down this information personally or through an agent or recruiter.¹

This has been the law in California since Assembly Bill 168 (signed by Governor Jerry Brown) went into effect in October of 2017.²This law applies to all public and private employers in California, including state and local government employers.³

2. Why not?

California employers may not ask about your salary history because they might misuse that information as a way to pay some employees less than others. Salary history can reinforce pay inequality based on sex, race, or other types of discrimination. Prohibiting questions about salary history is a way to compensate you based solely on job skills and experience.⁴

Equal Pay for Men and Women

California already has laws that prohibit pay disparity based on sex.⁵ Under the California Fair Pay Act and California Equal Pay Act, employers cannot pay men and women different salaries for similar work, except where the employer can demonstrate the wage differential is based on:

• A merit system,
• A seniority system,
• A system that measures earnings by quantity or quality of production, and/or
• A “bona fide factor” other than sex (such as education, training, or experience).⁶

If an employer is accused of violating the equal pay laws, the employer has to demonstrate that the “bona fide factor” is:

• Not based on or derived from a sex-based differential in compensation,
• Job-related with respect to the position in question, and
• Consistent with a business necessity, defined as “an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve.”⁷

Even if the employer is able to demonstrate that a “bona fide factor” other than sex was used to differentiate compensation, the defense does not apply if you can show that an alternative business practice exists that would serve the same business purpose without the wage inequality.⁸

Employers who violate the Equal Pay Act are liable to you for

• unpaid wages,
• interest, and
• an additional equal amount as liquidated damages.⁹

3. Can I ask about an employer’s salary range for a position?

Yes. If you make a “reasonable request” to an employer in California, they must provide the pay scale for a position you are applying for. Your request can be oral or written.

Note that California law already requires employers with 15 or more employees to include a pay scale in job postings.¹⁰

4. Can I tell my employer how much I made at my last job?

Yes. Although an employer in California may not ask you about your salary history, you are free to volunteer that information.¹¹For example, you may be able to use your prior salary as a way of negotiating for a higher salary at the new employer.¹²

Note that if you do voluntarily disclose your salary history to an employer, they may use that information as a factor – but not the only factor – in determining whether to hire you and what your salary would be.¹³

5. What happens if an employer asks about my salary history?

If an employer asks about your salary history in violation of California employment law, you may be able to:

• file a complaint with the Labor Commissioner, or
• file a lawsuit against the employer.¹⁴

You may be able to recover money damages or equitable relief along with the court costs associated with bringing the lawsuit, plus attorney’s fees.¹⁵

6. What if I get the job?

After you are offered a job in California, the employer can contact your prior employer to verify your prior salary. Though in certain jurisdictions like San Francisco, your former employer can only reveal your salary with your written authorization.¹⁶

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Blurry Limits of the Equal Pay Act’s “Factor other than Sex”: An Argument for Limiting the Use of Salary History and the Benefit to Employers – Wake Forest Law Review.
• Never Ask a Woman Her Wage: The Constitutionality of Salary-History Bans – University of Chicago Law Review.
• Closing the Wage Gap: Cities’ and States’ Prohibitions against prior Salary History Inquiries and the Implications Moving Forward – Seton Hall Law Review.
• Salary History Should Be Her Story: Upholding Regulations of Salary History through a Commercial Speech Analysis – William & Mary Law Review.
• The Ghost of Salary Past: Why Salary History Inquiries Perpetuate the Gender Pay Gap and Should Be Ousted as a Factor other than Sex – Minnesota Law Review.

Legal References: