As we have written about previously, in 2016 the European Union (EU) approved a new privacy regulation called the General Data Protection Regulation (GDPR). It is a mandatory regulation that applies to all companies that collect the data and information of EU individuals.
The GDPR expands the privacy rights granted to European individuals and requires certain companies that process the personal data of European individuals to comply with its regulations.
The GDPR went into effect May 25, 2018, and all companies collecting or processing the personal data of EU individuals must be compliant.
If you want to find out more about the GDPR, additional information is available on the official GDPR website of the European Union.
If you are in need of an assessment to make sure data is processed and managed according to the GDPR instructions, or to ensure that your Terms of Use and Privacy Policy support GDPR requirements, please contact us at bds@sfcounsel.com or hgs@sfcounsel.com and we can direct you to a privacy professional to assist with your GDPR needs.
Employer Alert – Clarification on California’s Salary History and Equal Pay Statutes
Early this year in our New California Employment Laws for 2018 article, we alerted you to Assembly Bill (“AB”) 168 (codified at Labor Code § 432.2 and effective as of January 1, 2018), which places restrictions on information an employer may seek from job applicants concerning compensation or salary history. For example, Labor Code § 432.2(a) prohibits an employer from “rely[ing] on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.”
While the ink was still drying on AB 168, Governor Brown signed AB 2282, which sought to clarify some ambiguities in Labor Code §§ 432.2 and 1197.5 (California’s Equal Pay Act) created by AB 168 and other prior amendments.
Salary Inquiry (Labor Code § 432.2)
AB 2282 specifically states an employer may ask “an applicant about his or her salary expectation for the position being applied for” (emphasis added). The employer still cannot ask for an applicant’s salary history, though a nondiscerning applicant or employer may not realize the distinction between “salary history” and “salary expectation.”
Additionally, AB 2282 defined three terms that were left undefined in Labor Code § 432.3(c) with respect an applicant’s request for a pay scale for a position (“An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.”):
- “Pay Scale” means a “salary or hourly wage range.”
- “Reasonable Request” means a “request after an applicant has completed an initial interview with the employer.”
- “Applicant” or “Applicant for Employment” means “an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”
Current Salary in Compensation Decisions (Labor Code § 1197.5)
AB 2282 does not change the existing prohibition under Labor Code § 1197.5 of prior salary as the sole justification in compensation disparity; instead, AB 2282 clarifies that an employer may make a “compensation decision based on a current employee’s existing salary, so long as the wage differential resulting from that decision is justified” by one or more of the following factors: (a) seniority system, (b) merit system, (c) system that measures earnings by quantity or quality of production, or (d) bona fide factor other than sex, race, or ethnicity, such as education, training, or experience.
Takeaway
While AB 2282’s amendments to Labor Code §§ 432.2 and 1197.5 do not signal any dramatic change with respect to salary inquiries, these amendments clarify how to treat “salary history”:
- Employers cannot ask for an applicant’s salary history, but can ask for an applicant’s salary expectations.
- Employers can use an employee’s current salary in making compensation decision, but any wage differential cannot be based on sex-, race-, or ethnicity-based reason(s).
Please contact Denis Kenny at (dsk@sfcounsel.com), Ryan Stahl at (rws@sfcounsel.com), or John Lough, Jr. at (jbl@sfcounsel.com) for more information on upcoming laws that may affect your workforce, including best practices in assessing wage differentials, assessments of workers as either independent contractors or workers, scheduling a mandatory harassment training, or assessing and updating your workplace policies to ensure compliance with controlling law.
– Written by John Lough, Jr.