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Employers soon prohibited from asking about wage history

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This week’s question comes from Sharon in Santa Rosa, who writes:

Q: I am in the midst of a job search and I’m often asked for a salary history. As a woman, I feel uncomfortable with this question, as it seems to place me at an immediate disadvantage when negotiating my salary, especially in competing with male candidates. Are potential employers allowed to ask me that?

A: Currently, yes, but not for long. Salary history questions are very common, but as you point out, this practice can perpetuate the pay gap between men and women due to gender discrimination.

It has been well established that women have a significant disadvantage with respect to earning power as compared to men. In recent years, the California legislature has attempted to address this wage inequity by passing laws that would provide a more level playing field. The recent California Equal Pay Act amends the Labor Code to add section 1197.5, which states that an employer cannot pay any of its employees a wage less than the wage rate paid to employees of the opposite sex for “substantially similar work.” There are exceptions provided for wage differentials based on an established seniority system, merit system or a system that measures earnings by quantity or quality of production.

In April 2016, the Ninth Circuit Court of Appeals ruled on a case that challenged the Equal Pay Act. Attorneys representing the employee argued that basing a current wage on a past wage continued the long-standing and deeply ingrained gender bias that exists in the employment arena and perpetuated gender bias. The Ninth Circuit, however, held that it is not necessarily improper to use past salary when considering a new employee’s pay rate. This decision dealt a major blow to the spirit of the Equal Pay Act, but attorneys statewide have worked with legislators to find a workaround to this inconsistent decision.

California has now enacted a legislative response to the Ninth Circuit decision, which will hopefully put all genders on equal footing.

On Oct. 12, Gov. Jerry Brown signed a bill banning employers from asking about salary history. The new law, which goes into effect in January, prohibits employers from “orally or in writing, personally or through an agent,” asking about an applicant’s previous wage history. Because this addresses the issue at the very first contact with a potential candidate, this prevents access to salary information that could perpetuate gender discrimination. Naturally, this will not solve the issue of internal wage discrepancies between employees, but the law represents a significant victory for individual candidates seeking new employment at a competitive wage. It is important to note, however, that the current law does not protect an employee who voluntarily, and without prompting, provides information related to their previous earnings. In such cases, an employer may use this information in determining the salary for the applicant.

I wish you the best of luck in your job search and hope you have the fortitude to negotiate for yourself fiercely. You are your own best advocate and deserve to be paid every penny of what you’re worth.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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