San Francisco’s “Parity in Pay Ordinance,” prohibiting employers from inquiring about a job applicant’s salary history, took effect on July 1, 2018. This post discussed significant provisions of the ordinance as well as key considerations for employers to ensure compliance with the new regulation.

The San Francisco measure follows several states’ and cities’ enactment of similar regulations designed to address wage disparities. See Considerations for Employers in Massachusetts, Countdown to New Jersey’s Diane B. Allen Equal Pay Act, and Connecticut Bans Inquiries into Applicants’ Wage and Salary History. Following the passage of San Francisco’s Parity in Pay Ordinance, California’s Equal Pay Act (EPA) was amended in 2017 to prohibit employers from asking job applicants about salary history.  The California salary history prohibition largely mirrors the San Francisco ordinance with some differences, as noted below.

What employers are affected?

  • Employers who conduct business in San Francisco are governed by the ordinance.

What types of inquiries are prohibited?

  • Employers may not inquire about or consider the current or prior salary history of a job applicant in determining whether to hire the applicant or the salary to offer them.

What if an applicant volunteers his or her salary history information?

  • The bar applies even if an applicant voluntarily discloses his or her prior salary history. Employers are prohibited from using the information, regardless of whether it is voluntarily disclosed, when making hiring or promotion decisions.

What if I am asked by another employer to share a former employee’s salary information?

  • Under the ordinance, employers are prohibited from disclosing a current or former employee’s salary history without authorization from the employee, unless the salary history is publicly available or the disclosure is required by law. Employers should exercise caution when responding to salary history inquiries to ensure compliance with this prohibition. Employers may conduct background checks that may disclose salary information, but are prohibited from using such information in considering the applicant for the position.

As an employer, am I required to notify employees of this change in the law?

  • Employers are required to post notice of the ordinance at the job or on the worksite.

What happens if I am accused of violating the ordinance?

  • Employers have a one-year grace period – until July 2019 – in which they will be issued a warning and notice to correct any suspected violations. Employers may also appeal Office of Labor Standards Enforcement (OLSE) determinations to a hearing officer.

Can I discuss salary expectations with potential applicants?

  • Notably, the San Francisco ordinance differs from California’s Equal Pay Act in that it specifically states that employers may engage in discussions with applicants about salary expectations, as long as all other provisions of the ordinance are followed. California’s EPA, similar to the ordinance in most other regards, is silent on this issue.

What should I do now?

Employers should stay up to date on pay equity developments and regularly revisit and revise their hiring practices and policies to ensure compliance with the law. Consider retraining all employees involved in the hiring process on the provisions of the law. Consult with a member of Jackson Lewis’ Pay Equity Group for assistance with evaluating and revising your policies.