A Guide to California’s Latest #MeToo Laws for Employers

Talking to Job Applicants About Pay

In January 2018, AB 168 took effect and forbade employers from asking job applicants about their past salaries or wages. It also required employers to provide pay scales “upon request” to applicants. The ostensible goal of this law, codified as Labor Code section 432.3, was intended to halt gender-based pay disparities that arose when employers based pay for new applicants on their previous salaries. However, it failed to define key terms and contained several ambiguities.

AB 2282, Effective as of January 1, 2019, Clarifies at Least Some of the Questions the Previous Law Raised.

One of the most significant criticisms of the AB 168 was that it made no distinction between brand-new applicants and current-employee applicants. The California Equal Pay Act now explicitly allows employers to consider a current employee’s wage or salary with the company in deciding how much to pay them for a new internal position.

Another source of confusion with AB 168 was that it required employers to disclose their “pay scale” to applicants “upon reasonable request.” Yet the law failed to define “pay scale” as well as “reasonable request,” leaving many employers frustrated. With the recent amendment, these ambiguities were fixed. “Pay scale” was defined to mean a range – either for salary or for an hourly wage. And “reasonable requests” were defined as requests applicants could make only after they had completed an initial interview.

But, the most important amendment under AB 2282 was that employers were allowed to ask an applicant for their “salary expectations”.

Forbidden Confidentiality, Non-Disparagement, and Waiver Agreements

As of January 1, 2019, new Civil Procedure Code prohibits employers from including a requirement that forces employees to keep facts confidential in settlements of sexual harassment and discrimination cases. Nevertheless, settlements may still forbid the employee from disclosing the amount paid, as well as forbid the employer from disclosing the plaintiff-employee’s name, if he or she chooses to remain anonymous.

However, a different law allows settlements of other (non-sexual) discrimination cases to include confidentiality provisions. SB 1300 prevents employers from requiring employees to sign “non-disparagement” agreements that prevent disclosure of any harassment or discrimination (e.g., based on race, gender, age) as a condition of employment, raises, or bonuses. Yet this law specifically allows settlements of discrimination claims to include such non-disparagement clauses.