Question: I heard there have been some changes to laws prohibiting employers from asking job applicants about their prior salary and criminal history. What do I need to know about these laws as an employer?
Answer: Effective January 1, 2019, two laws clarify what California employers can say and do when asking job applicants about prior salary and criminal history.
Salary History Restrictions
Since January 2018, California employers have been prohibited from seeking salary history information from or about a job applicant. Employers cannot consider an applicant’s salary history in determining whether to extend an offer of employment or in deciding what salary to offer. Employers are also required to provide a pay scale for the position to applicants upon request.
Effective January 1, 2019, AB 2282 clarifies that employers can ask applicants about their salary expectations for the job for which they are applying. The pay scale provided need only be given to external applicants (not current employees), and only after the applicant has completed an initial interview. The term “pay scale” is now defined as a salary or hourly pay range.
AB 2282 also clarifies that the employer can consider salary history information disclosed by the applicant voluntarily (without prompting) when determining the salary for that applicant. Employers may also make compensation decisions based on a current employee’s existing salary (e.g., for giving raises or bonuses) if justified by one or more specified factors, such as a seniority system.
Restrictions on Criminal Background Inquiries
Also effective January 1, 2019, SB 1412 amends the restrictions on considering an applicant’s criminal history in the hiring process. Since 2018, employers have generally been prohibited from considering judicially sealed or expunged convictions when making hiring decisions. Exceptions exist for certain employers and applicants, i.e. an applicant for a bank teller job cannot have any prior convictions for fraud or money laundering, even if the conviction is sealed or expunged. SB 1412 addresses the Legislature’s concern that employers were using information received in background checks to exclude employees with any expunged conviction on their record, rather than only considering crimes having a direct impact on the applicant’s ability to do his or her job. Now, employers may only consider a “particular conviction” relevant to the job when rejecting applicants.
SB 1412 permits employers to ask an applicant or seek information about a particular conviction (after a conditional offer of employment is made) if, pursuant to federal law or regulation, or state law: (1) the employer is required to obtain information regarding the particular conviction of the applicant, even if the conviction has been expunged, judicially ordered to be sealed, statutorily eradicated, or judicially dismissed following probation; (2) the applicant would be required to possess or use a firearm in the course of employment; (3) an individual with that particular conviction is prohibited by law from holding the position sought; or (4) the employer is prohibited by law from hiring an applicant with that particular conviction.
This law does not prohibit employers from conducting criminal background checks for employment purposes, restricting employment based on criminal history, or seeking an applicant’s criminal history report, but employers must be careful to follow the particular procedures stated in the law, including obtaining the individual’s written authorization prior to running a criminal background check, before excluding applicants with criminal convictions.
Employers should check their existing employment applications and hiring processes to ensure compliance with these new laws.