San Francisco employers can no longer include salary history inquires on job applications because of “historical patterns of gender bias & discrimination.”

In July 2017, San Francisco joined New York City, Philadelphia, Delaware, Massachusetts, and Oregon in prohibits employers from inquiring about an applicant’s salary history.  The “Parity in Pay Ordinance” prohibits San Francisco employers from using an applicant’s salary history in the hiring process or in determining what salary to offer an applicant.

Earlier this year, the New York City Council amended the New York City Human Rights Law when it added a provision making it an “unlawful discriminatory practice” for an employer to inquire about the applicant’s salary history from either the applicant, the applicant’s current employer, the applicant’s former employer or a current or former agent of the applicant’s current or prior employer.  This law even makes it illegal for an employer to search for information relating to the applicant’s salary history from publicly available information.

Likewise, the City of Philadelphia earlier this year passed a similar law.  On April 9, 2017, the Chamber of Commerce for Greater Philadelphia filed a suit in federal court challenging this law and seeking an injunction, which was granted.  The suit alleges that the Philadelphia law deprives businesses of their First Amendment Rights.

In 2016, Massachusetts became the first state to pass a law prohibiting employers from inquiring about a prospective employee’s wage and salary history.  The Massachusetts law also requires employers to state the compensation for a vacant position at the beginning of the hiring process.  The Massachusetts law will go into effect in 2018.

The San Francisco ordinance broadly defines an “applicant” as a person applying for a job to be performed in the geographic boundaries of the city and whose application, in whole or part, will be processed or considered, whether or not through an interview, in the city.  An “employer” is any individual, firm, corporation, partnership, labor organization or other organization that is or should be registered to do business in the city.

Prohibited Inquiries

An employer is prohibited from:

• Directly or indirectly inquiring about an applicant’s “salary history” using any mode of communication, including application forms and interviews.  The ordinance defines “salary history” as the applicant’s current and past salary (compensation, commission, and/or benefits) in the applicant’s current position or in a prior position.
• Considering an applicant’s former pay as a factor in determining what salary to offer an applicant – even if the applicant voluntarily discloses his or her salary to the potential employer.
• Refusing to hire, disfavoring, injuring, or retaliating against an applicant for not disclosing his or her salary history.
• Releasing a current or former employee’s salary history to another employer without the employee’s written authorization.

An applicant may volunteer his salary after an employer’s initial salary offer in order to negotiate a different salary.