California updates laws around salary and criminal histories of job applicants | Hacker News Reader

California updates laws around salary and criminal histories of job applicants

justworks.com

186 pointsmanigandham236 comments

> Salary history may be discussed if an applicant “voluntarily and without prompting” discloses salary history to a potential employer.

People who believe they're highly paid might find it advantageous to disclose that: they'd avoid an accidental lowball, companies that can't afford them, etc. So there should be three types of people: (1) those who disclose and are highly paid, (2) those who disclose and think they're highly paid but aren't, and (3) those who don't disclose.

If being in group 1 is advantageous, then not disclosing (group 3) could be taken as a signal that the person thinks their salary is low and doesn't want to be anchored--but isn't that the information this law is supposed to be hiding? Even though they haven't named a price, it's still a signal that they might accept an offer under market.

On the other hand, that makes it harder for employers to calculate an offer that's more than they're making but still under market. And the gap should shrink with every job change, in theory.

Is there any data (maybe from other states) on how the game theory shakes out here?

Edit: another provision makes it more complicated.

> (c) An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.

Everyone fails to disclose, then waits for an offer, then negotiates.

Given the first offer people in group #1 (paid highly) still have an advantage when negotiating ("I'm paid more now"). People in #2 will learn that they're not paid as much as they think they are if the offer is good. People in #3 remain the same and should have +EV.

All groups can still negotiate.

I think there's something called 'anchoring' in negotiation where the first number dropped is usually what people dance around afterwards. Waiting for the offer and then negotiating is letting the hiring manager do the anchoring. Where as I think what the root comment is saying is for you to set the anchor first.

This means that negotiation actually begins much earlier than when the offer happens. In that case then everyone is considered negotiating.

It feels like there's some value in disclosing that's greater than the risk of leaving money on the table if the other groups behave as expected, but I can't put my finger on it. Maybe just one of those economic fallacies.

Whoever says a number first loses. That's some piece of wisdom that I don't recall the source of, but I believe it addresses what you're feeling.

I think it's the opposite: it feels like this law might create an incentive for certain people to go first and thereby change the meaning of not going first for everyone else.

But I can't support it, so I'm probably wrong.

I hear that all the time but I have had decent success by giving a high number first. I have never had a company offer more than I expected.

Not true. It goes against price anchoring. Lowballing is as much risk as highballing for eiter side.

An incorrect meme.

Plus there is no perfect information. People in category #1 may not necessarily believe they are highly paid. The grass is always greener...

How much you made previously is somewhat irrelevant. How much you'd like to make is much more relevant. That conversation can still happen. The only difference is that applicants don't have to be anchored by their previous salary. They can ask for whatever they want.

I'm not sure I see why the same dynamics that you describe wouldn't still play out using the applicant's desired salary instead of their current/previous salary.

(4) those who disclose and lie, because there is nobody in the recruiting chain who'll ever bother to check

HN counts to 3:

  1, 2, 3, 4, 4/1, 8/2...

I figured it was common enough for employers to check since they can buy the data, but I have no idea.

They can kind-of sort-of somewhat buy some of the data but the data sources they can buy from have errors, don't account for stock compensation, often misaccount for money going into 401K's or stock purchase plans, healthcare and other payroll deductions. They sometimes mishandle bonuses as well. If the data you buy has these errors you might reject a candidate whose not lying because their total comp was half stock and they maximized their 401K and stock purchase plans making the bank underestimate their salary.

What data can they buy, and how do they buy it?

Equifax has a salary lookup service. https://krebsonsecurity.com/2017/11/equifax-reopens-salary-l...

They only have data for those employers who opt into it though. It's mostly entry-level-type positions (supermarkets, convenience stores, temp agencies, etc) but there are some larger clients in that pool too.

Well, you missed group 4.

Group 4 is "people who aren't doing game theory in their head, and don't even think to give their salary, if they weren't asked it".

And group 4 likely makes up the vast majority of people.

Group 4 is not highly paid.

Those people are still in 3, but as you point out, being in 3 is not a reliable signal of anything if they're the majority. That's a good point.

I believe that is still functionally equivalent to Group 3.

I guess I don't see how C makes things any more complicated. The employer has a budget in mind when creating the position.

Disclosing your salary no matter how high or low is disadvantageous to increasing it; it sets an anchor

The ban is not on asking about criminal history. It's a ban on asking about criminal history before a conditional offer is made. Quote from article:

Under this law, employers will no longer be allowed to ask applicants about their criminal conviction histories until after a conditional offer of employment has been made.

> Under this law, employers will no longer be allowed to ask applicants about their criminal conviction histories until after a conditional offer of employment has been made.

So they are making employer waste the time interviewing someone that they will not hire because he or she has a conviction.

If they decide to reject a person after knowing their history, they have several legal issues to jump through unless they're in an exempted industry. They have to tell the person explicitly what about their criminal background keeps them from getting the job, and the applicant has some recourse if they disagree with that reasoning.

The theory being: employers will think twice about rejecting a candidate based on a criminal conviction if everything else pointed to a qualified candidate.

Offers are always conditional on the passing of a background check.

It is a theory that came from those who do not hire people.

So they're just making it more clear to potential employees that if you don't lie now, you'll lose the offer?

Seems either pretty useless and will just waste more of a company's time, or will just encourage more people to lie about prior convictions (as it will be literally spelled out that they'll rescind the offer if they have a criminal history).

I think the point is to encourage companies to go through the initial assessment of a potential employee in the hopes that they will find the candidate to be the best option, and then have to actively choose not to employ the person because of a prior conviction. In addition, they will have to evaluate (and it sounds like document) whether they feel the conviction would impact the candidate's ability to perform that specific job for that specific company.

Today, many employers have a blanket "no convicts" check-box on their application forms. This makes it very hard for convicts to find work.

Yes, many companies will continue to have this practice, and some for very good reason, but this creates the potential for a little more sanity to be applied.

Consider sunk costs. As an employer, you've found a brilliant person to fill a position. You've gone through days of interviews, and this is clearly the best candidate. You put out the offer, and then ask for a criminal background check.

At that point, the candidate says "When I was 19 I got into a fight in a parking lot and was convicted of assault, had three years probation".

Now you've gone to all this trouble and you like the guy, but have to decide whether that history matters or not.

Before, you'd have simply filtered his resume from the pile at the start and never even interviewed him.

As I said, seems like it's going to waste a lot of company money. Maybe small businesses will take the risk, but big company lawyers are going to be telling their people to eat the cost. Now you're even setting the basis of the argument that would be used in court, that the company only hired the felon because it was cheaper than finding a new candidate.

Imagine if a cashier, who had previously been convicted of assault for the fight you mentioned, gets into a fight with a customer for whatever reason. If you want past criminals to be able to be hired, you need to have the civil legal system fixed so that a company couldn't be sued for hiring one. That's most of the reason why a company doesn't hire past criminals.

Man, that is incredibly refreshing.

So you make it clear up front that while they will not be asked about any criminial convictions, they will be asked after and will simply have wasted their time.

Plus you usually don't have just one good candidate, you typically have a couple, different people might even prefer different candidates. If you really only have on qualified candidate, what will you do if they quit?

however there are jobs subject to state regulations that forbid those with criminal history from obtaining said job or even the certification.

this is just feel good do nothing regulation. it benefits no one because the end result will be the same.

For a subset of jobs.

By the time a company makes a conditional offer they've generally invested the equivalent of several thousand dollars into the search, if not more. So they're much less likely to reject someone for a conviction then, as opposed to when filtering resumes.

Yeah, I think both laws are right steps in the right directions. But I don't know if they are big steps.

The hope is by the time a company has invested enough to make a conditional offer that they are more willing to forgive a conviction history.

>>will just encourage more people to lie about prior convictions

What is the point in lying about conviction? All convictions from every location are recorded into central databases run by companies like Lexis Nexus, so unless the employer is not using any kind of quality back ground check service lying is pointless as your criminal history is about 2 clicks away on a keyboard.

Most companies are not spending the thousand of dollars each on a real background check that is very likely to find "all" the things.

> All convictions from every location are recorded into central databases

This simply isn't true. Perhaps the overwhelming majority of cases are? But definitely not all. Plenty of court systems do not provide free electronic access, and you must show up in person to do a search. Companies of course have existed forever to do this work for you, but it's not a simple SQL query.

The standard $35/ea background check is effectively a credit check. Even the next "tier" up that costs $500+ simply does a credit check to pull known addresses, and then sends someone in to those counties to check them individually. If you committed your crime in a county you never lived in, you have a pretty decent chance of it not coming up on a background check.

I would say if you have a conviction in your past that is keeping you from employment by disclosing it, there really is nothing to lose by lying about it. It can really only help you. The vast majority of background checks are simply checking a compliance box using the lowest cost provider, and have a fairly high likelihood of a false negative. I assume they do fairly well at federal felonies and major crimes committed in major metropolitan areas. Beyond that it gets spotty quick.

I guess that is just more reasons to live in a rural area then a Urban one then. Less likely though courts will be creating databases of ruin on their citizens

I've had three background checks and theyve come back missing information I gave directly to the company doing the background check. A lot of companies seem to be no better than 10 minutes with Google and are just for show. The only companies I know of that do actual, accurate background checks go through state services. Doing that as a regular part of your business makes you fall under extra regulations though, so many companies skip it to save money

Same experience. Commercial background checks as used by companies today are useless except as checklist liability-limitation.

If you actually care about finding out what a person might not be disclosing with any reliability, that costs a fair bit more.

You'd be surprised at the number of places that say they check but never do, especially small businesses. Some just don't want to spend the money.

So I guess employers will now consider anyone who does not come in saying "I have a clean rap sheet" to be former criminals, and not make the conditional offer.

99% of people aren't going to go to the company they are applying to and say "oh, by the way, I know you didn't ask, but I have no criminal history".

If a company doesn't ask a question, they almost certainly aren't going to recieve the answer unprompted.

You underestimate the value of ascertaining such answers to an employer. The Wiz, a big box electronics store on the Eastern Seaboard was wiped out of existence by employees selling truckloads of inventory out the back door. The criminal history screening matters.

"If an employer does decide to deny an applicant the position solely or in part because of the conviction history, the employer must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position."

You could drive a semi through that loophole

It's not really a "loophole", per se. It would be ludicrous to say that a bank should not be able to exclude someone from hiring if they have been convicted of a serious financial crime, or that a day care should not be able to exclude a convicted child molester.

Now, will other companies take advantage of this so that they defeat the spirit of the law? Perhaps. But the fact that they need to make an assessment means that might be subject to review at some point.

It's amazing we need to explicitly say this. This should be obvious, yet by many comments you wouldn't realize it.

It is obvious: I'm stunned that people on HN still use uninformed “but who will think of the children?!“

So to make it clear: as a day-care owner, you do not need to refuse employment to a previously convicted child-molester after they’ve successfully applied. You don’t because they violated their life-long-parole-like control and are in back in jail.

It's a fully intentional loophole. You can still ban convicted criminals from employment. The law is trying to make sure that you do so after meeting the person, interviewing them, and convincing yourself that you want to hire them. Then you're free to withdraw the offer if the criminal history changes your mind.

Yes, but every time you make such a decision to deny, you are opening yourself to a lawsuit. it just isn't worth it.

The exclusion clause will likely find more use as a loophole ...

> [Does not apply] to a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization

You're not opening yourself to a lawsuit, it's still perfectly legal to refuse to hire felons because "I don't like felons." You just can't avoid meeting them and interviewing them.

I strongly suggest that anyone considering denying someone employment for the reason "I don't like felons" seek legal counsel before putting this reason in writing to the rejected applicant.

Indeed.

"It's relevant to ask the candidate their conviction history because they might steal our router, which would compromise our business".

Alternative would be allowing people convicted of violence towards children to be teachers, for example.

"Oh, I see you spent four years in jail for molesting a 7 year old. Oh well, we certainly wouldn't want to discriminate, so please accept this offer to work in our day care"

It's not at all unreasonable to exclude certain people for certain jobs based on their criminal history.

I'm pretty sure that would be an allowed reason to reject.

But what if you are a small business and don't want the person there because you don't want the reputation of having someone with that particular criminal past working for you? Say you are a construction company that specializes in large play areas. Technically a child should never be on site while building the play area, and your workers will be gone before it is open for kids to play on, but the mere reputation association being made could cost business.

Is merely the possibility of a bad reputation reason to reject? If so, the law is effectively pointless.

Common sense would say that it should be an allowed reason to reject an applicant but the law says what it says, not what it should say.

You're gonna have to prove that it wouldn't be.

Not sure they would be allowed to apply, so that argument might be a little sophistic.

Isn't there an even bigger loophole, where a non-California recommendation company can recommend hire/not-hire and suggest a salary. The hiring company never looks it up, the non-California company does, but they never give the information to the company so the company never violates the law. Of course, you'll have to wrap it up a little better (have the verification company also check skill sets and such), but effectively all you have to do is outsource the vetting process to somewhere outside of California to get around this.

An article that explains the perverse results of "Ban the Box", and then attempts to rebut it:

https://onlabor.org/ban-the-box-and-perverse-consequences-pa...

> Ban the Box interacts with racial profiling because, unless it checks or asks, an employer has no information one way or the other about an applicant’s criminal record.

> Without individualized information, employers apply racial stereotypes that place applicants of color under a cloud of suspicion.

> But when employers check, they confirm not only who does have a record but also who does not, enabling employers to target the former for more accurate exclusion.

> The racial exclusion from stereotyping when employers don’t check could exceed the racial exclusion from accurate screening when they do check.

> That is exactly what happens, according to the studies.

Wow I am impressed at this analysis and finding.

I am currently debating with myself about the cost of hiding information, and cases where there is a deliberate attempt at hiding it are the ones that are more likely to counter my intuition that information truly should be absolutely free.

Thanks for the contribution!

It needs more upvotes. I'm confused at how it's at the bottom of the comments here. It's an excellent one.

Tl;dr Since employers cannot ask about criminal history, they use stereotypes to make there decision instead. Studies show the stereotype filtering leads to worse outcomes for PoC.

I came here to say this, thank you for finding the souce.

Thanks, that data is useful.

How are they determining race? Names? Is "ban the name" a sensible policy proposal? (Hold the name in escrow with someone who will contact references, do background checks, etc., until you're ready to make the offer.)

I personally don't find "ban the name" to be a sensible policy.

I google and LinkedIn anyone whom I'm about to interview. I want to be equipped with information to make that hour together as productive as possible for both sides.

I get that my personal preference to do homework and be prepared prior to an interview might not outweigh a societal reason to prevent that.

Yeah, I think that is extremely likely to lead to subconscious bias. In the good case, you find something worth talking about with that person, and you have a productive conversation where you go deep onto a topic they should be familiar with and you figure out whether they're actually familiar or not, yes.

In the not-so-good case, you find that they were accused and then cleared of charges for something odious, or that they sued their former employer for entirely justifiable reasons, or that they're an ardent supporter of a political party or religious view you just can't stand, or that they just tweeted that they're pregnant, or whatever.

And even in the good case, you're asking this person something very different from what you're asking other candidates, which means you're likely to be influenced by something as irrelevant as other candidates not having a public record. (e.g., one candidate worked somewhere with an oppressive OSS policy, one didn't, you got to have a good conversation about a project the second candidate's GitHub but did not get as far talking about an internal project the first candidate did.) Which doesn't actually seem that good.

I am incredibly curious to see data, if anyone has it, about who interviews most effectively (in the sense of saying "yes" to candidates that do well, being the one "no" on candidates who left the company quickly, being the one "yes" to candidates whose LinkedIn implies they ended up being successful, etc.) I suspect - but have no data - that asking consistent questions to each candidate leads to higher accuracy. But perhaps you miss out on the rare, extraordinary candidates.

> I think that is extremely likely to lead to subconscious bia

I agree, but wonder if that process makes the interview more effective rather than less effective overall, bias notwithstanding.

It's not like the average unbiased one hour interview has a stellar track record of predicting success, and attempts to create a standardized interview track break down beyond the mid-senior individual contributor or junior manager levels, IME. If I'm interviewing for a Director or VP, I want to have some background information on the candidate to ask specific questions rather than a generic, "Tell me about a time when..." that works at more junior levels.

Note that, as part of this same law, pay scales for jobs must be provided to applicants, upon request. Effective January 1 2018.

Is there an example payscale somewhere? Does this apply to remote employees if a company is headquartered in California?

Or more importantly, to non-California companies with California employees.

If you have a physical presence in a state, you must be incorporated in that state. You'll then have to follow the laws of that state for the business conducted there. This includes what are otherwise considered remote employees.

Most likely yes, if the employer has employee's in the state, they have a legal nexus thus must follow that states laws

Some companies may do it anyway but I doubt it would be required of them, Most of the time employees are governed under the laws in the location where they work, there are exceptions but they are rate

For example California has different Overtime requirements than say Kentucky, employees of a CA firm in KY do no get overtime based on CA law but based on KY law

I was surprised by that too. It's really unclear whether companies can just say "$50k - $500k" though.

I'm guessing that pay scale would cover base salary, but not necessarily equity/bonuses?

Also notably,

> An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.

So not only can they no longer ask you for salary history, they must tell your about their salary practices if you request the information.

How would that work if you don't have a set scale? IE you will pay depending on what you can get away with? "We are willing to pay upto 300 thousand for this SE position, but we will negotiate that with the other applicants and take their offers into account".

What is to stop people from just lying about their salary information?

Haven’t read the law, but what’s to stop people from lying on their tax returns? Upfront notice via the law, and backend enforcement via IRS auditing. Same principle could apply here.

I mean, you can find quite a bit of public data to back it up, so them lying about it won't really do that much good. IE Glassdoor, H1B database, etc.

I didn't see anything about payscale disclosure in the body of the article, but at the end it mentions, "Prepare payscale information for applicants that may request it." Is there anything to this?

It does seem to be the case ...

> (c) An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...

Congratulations California. You just capped everyone's salaries.

All you had to do before was say "It doesn't matter. My price is $x." I've done it many times and still been offered the job.

Not everyone is in your position, and feels they have a strong enough bargaining position to do that. Nothing in this law changes things for you, but it can change things for the better for many other people.

Yes, actually, everyone is in a strong enough bargaining position to do that.

You can teach people they're helpless or you can teach people how to negotiate. California seems intent on teaching people to be helpless.

No, they're not. To say otherwise betrays either an enormous ignorance of other people's situations, or a complete lack of empathy for them.

I'm going to assume you are not employed as a cleaner.

Not anymore. But I have been. I've also been a day-laborer. A retail clerk. A Christmas elf. A soldier. And a developer.

When somebody is trying to hire you, you are the one with the negotiating power.

On the other hand, when CEO salaries were made public, the trend -- contrary to expectations -- was for them to rise rather than be capped.

Story time!

A friend of a friend got an offer from CHG healthcare. She checked Glassdoor and found her pay to be at the lower end of the position. She countered with a number near the higher end. Instead of negotiating, CHG Healthcare rescinded her offer. And that's how you perpetuate the wage gap!

>>And that's how you perpetuate the wage gap!

That is the only possible reason. Sexism.

There could be no other explanation as to why her counter offer was rejected including but not limited to completely inaccurate data on Glass Door...

I've seen a similar thing happen before. I think at some point the burden of proof becomes on those claiming that it's not sexism to explain why it overwhelmingly happens only to one gender. (Obviously it doesn't happen 100% to one gender; there's bell curves and all that. But it happens more to one gender, which means that it's statistically implausible that the effect is uncorrelated with gender.)

It happens to both gender. Many companies have arbitrary caps for positions, they will withdraw if you ask for a penny more than it.

Why is it rational to withdraw the offer instead of saying "no, we will maintain our original offer"?

Posturing? Pettiness? Punishment for daring to negotiate? Companies invent policies to the disadvantage of employees.

Then again, I wouldn't want to work for someone who doesn't understand basic negotiations.

I mean, what I was going for is that none of those are rational. None of those benefit the employer; they just indulge the base human instincts of the person giving the job offer.

And once we've expanded our model to include base human instincts over rational economic behavior, sexism isn't an implausible explanation at all.

Maybe they had many many candidates wanting the position, depending on the counter they may have felt it was not worth the time to negotiate when they could just get one of the other qualified people for the offer on the table.

Personally I hate negotiation, that is one the worst things about Human society IMO, offer me a fair wage, offer me a fair price, I do not understand people that want to haggle and negotiate over everything

The more I advance into higher and higher roles, and the more salary negotiation becomes a thing more I long for the days where it was just a job, the company was Paying $xx/hr and has 100 openings, if you wanted to work for XX/hr great if not there are 300 other people waiting to do the job.

And then those companies go on to whine and moan that they can't find qualified candidates.

>> I think at some point the burden of proof becomes on those claiming that it's not sexism to explain why it overwhelmingly happens only to one gender.

That is interesting... I am sure the world would be a much simpler place if people can just make claims with out having to offer any proof of those claims...

Science for example would be much better if one could simply offer a hypothesis with no backing data, tests, or any research at all, just a wild thought enters your head and the burden in on others to disprove you....

I for one would love to see your source(s) and under lying data to where you have come to the conclusion that is "overwhelmingly happens only to one gender". I am an aware of any data sources on the level of rescinded job offers by sex in the market place. I would question how such data could even be collected...

> Science for example would be much better if one could simply offer a hypothesis with no backing data, tests, or any research at all, just a wild thought enters your head

That's exactly how forming hypotheses work. You run into a couple of isolated, non-rigorously-acquired observations / anecdotes, you form a hypothesis, then you formulate a way to test the hypothesis and gather data. Until you've run the experiment, your hypothesis is just a hypothesis, not concluded fact. https://en.wikipedia.org/wiki/File:The_Scientific_Method_as_...

> * I would question how such data could even be collected...*

Well, that's the problem, right? If it's genuinely hard to gather data that would rigorously demonstrate either A or not-A, on what basis do we believe either A or not-A? It's sound to say, "I have no belief." It's less sound to say "A is the default; the burden of proof is on those claiming not-A."

>>Well, that's the problem, right? If it's genuinely hard to gather data that would rigorously demonstrate either A or not-A, on what basis do we believe either A or not-A? It's sound to say, "I have no belief." It's less sound to say "A is the default; the burden of proof is on those claiming not-A."

Let me guess, you are a religious person...

That is the basic foundation of a religion, you can not disprove god there for god exists...

Sorry... no

>>That's exactly how forming hypotheses work. You run into a couple of isolated, non-rigorously-acquired observations / anecdotes, you form a hypothesis, then you formulate a way to test the hypothesis and gather data. Until you've run the experiment, your hypothesis is just a hypothesis, not concluded fact

Well that is a complete bastardization of the scientific method.... You completely discount the "way to test the hypothesis and gather data." part of it. If you can not test and gather data to support your hypotheses then your hypotheses has no merit and should be dismissed completely by any rational thinker. You the individual will entertain your own hypotheses privately until you devise a method of testing and proving your hypotheses with rational thought to others.

Not simply posting it out there and claiming anyone that can not disprove your hypotheses means your hypotheses is correct. Simply because it can not be disproven does not mean it is proven

> f you can not test and gather data to support your hypotheses then your hypotheses has no merit and should be dismissed completely by any rational thinker.

No, this is neither scientific nor rational.

If you cannot gather data to prove your hypothesis, nor can you gather data to disprove your hypothesis, concluding that the hypothesis is false is exactly as unjustified as concluding that the hypothesis is true. "I have no informed opinion in on this" is a position you can take.

> Simply because it can not be disproven does not mean it is proven

I agree with this. But you keep conflating "not proven" and "should be assumed to be false."

Hi folks, I don't think you should downvote syshum. Of course there are multiple possibilities. And getting an offer rescinded happens to men too. Heck, it happened to me. It's impossible to know if any individual case is due to sexism. But when there is a pattern established at CGH Healthcare then something is wrong.

Glassdoor is generally lower than the real salaries.

What about looking up their salary at a credit agency?

You can opt out of that particular piece of info being available.

"Ban the box" laws have a pretty horrible track record. In practice, they unsurprisingly generally result in higher levels of discrimination against demographics with higher crime rates, especially low-skilled Blacks and Hispanics.

Here's a decent article on the topic.

https://www.theatlantic.com/business/archive/2016/08/consequ...

Meanwhile, Wisconsin just moved in the opposite direction. A bill has been introduced which grants employers the right to ask job candidates for salary information.

http://dailyreporter.com/2017/11/17/bill-would-prevent-local...

Just in case you weren't sure how corporations feel about this issue. ;-)

Is this Constitutional? People with a criminal history are not, as far as I understand, a protected class. So it's not clear to me why the government can forbid speech about prior convictions.

Second, as an at-will state, these protections on behalf of the convicted seem pointless. How does this prevent companies immediately firing people with a criminal record?

On the part about prior salary, at least the State can attempt to claim that it is connected to age-discrimination (a protected class) and prior sex-discrimination (also a protected class). It's not clear to me whether that will work, but at least there's an attempt to provide a Constitutionally-permitted reason.

The government is not forbidding speech - you can disclose your prior convictions and your salary if you like. (If you look at it with a reductionist-enough lens, it forbids speech on behalf of the employer, but there are plenty of cases where you can't do that, e.g., trademark infringement, copyright infringement, fraud, claiming that your patent medicine cures certain diseases, etc.)

Also, the bill bans "the box" - the question on the initial application form. It does not ban inquiring into criminal history once you're ready to extend an offer, and requires that you consider whether the history is relevant. It seems to me that the motivation is to force employers to actually think about whether it's relevant instead of blanket refusing to consider people with a criminal history: once you've put time into interviewing candidates and preparing an offer, you're much less likely to give up on that sunk cost for irrational reasons, and the policy is betting that blanket refusal to hire people with a criminal history is only rational if you use it as an initial filter.

So there's no need to prevent immediately firing people: that's expensive, and you're going to think twice about doing that, and that's enough.

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...

Asking questions is speech.

That's what I said about a reductionist enough lens. Sure, asking questions is speech. So is saying "we are an official Microsoft support provider" or "we are the FBI" or "we have a guaranteed cure for cancer" or "if you invest in our company, you will definitely get 200% returns". Do you believe that corporations have a constitutional right to the latter forms of speech? If not, what differentiates the two cases?

It has nothing to do with being a corporation.

You do have a right to say you have a guaranteed cure for cancer -- if that is in fact true, definitely.

> You do have a right to say you have a guaranteed cure for cancer -- if that is in fact true, definitely.

I mean, that's ... not true in the US. The burden is on you to prove it in a way the government is happy with first. You can't say it and simply be prepared to prove it if called out on it; you certainly can't say it and know it's true and not have public proof.

If your position is "things widely acknowledged in the US as perfectly normal are actually unconstitutional prior restraint on free speech," that's fine, but please say that up front so we understand that you're taking an unexpected position.

> The burden is on you to prove it in a way the government is happy with first.

A jury, actually, and it's not "first," it's after the fact, if you get charged. As far as I can tell the law in CA is that you have to be able to substantiate it with scientific evidence. Granted, I was thinking about statements advertising your services as a doctor, not a drug company.

As a drug company, in many environments you still have a right to flat-out state you've got a pill that will cure cancer -- go ahead and say it when giving a talk somewhere. Edit: which is losing the plot a bit, yeah, because you could ask salaries in a different environment too.

It does have to do with a corporation because we're discussing about hiring for a business.

If the statements are false, does that mean the individual/corporation won't get any repercussion from the gov't? No. When it comes to the matter of doing business, there's a level of restriction and punishment on the things they say.

Sole proprietorships can hire people too. Free speech rights in America aren't categorically different between corporations and individuals.

So is asking someone's age, religion, marital status, sexual orientation, etc. Many of those are also banned.

You're wrong. It isn't banned to ask these questions.

I mean, sure, if you want to be that pedantic, you (both as an individual, and as a company) definitely have a free speech right to ask those questions. You expose yourself to so much liability of a discrimination lawsuit that the practical effect is that you do not have a right to ask those questions.

If you're okay with it being technically legal but impractical to ask these questions around salary or criminal history without legal liability, I suspect the rest of us are, too.

The difference with salary is that it's going to be illegal to ask in CA.

Yes. I agree that these are different. I'm curious if you think the difference matters - would you be okay with (or more precisely, would you think it's constitutional to have) a law that says, sure, you can ask for salary, but if it comes out that your offer was influenced by the quoted salary number and you would have paid a higher salary if you heard a higher quoted number, you are liable for back pay plus damages?

I'd be fine with such a law (and I also think the current law gives slightly more freedom in practice).

Absolutely not, regulating people's economic behavior like that is pure evil.

And I disagree. I cannot believe that is regulating someone's economic behavior in any way. For one, the budget you have for a job opening is set before you interview anyone. Whatever you price that job at, it has nothing to do with what I'm making now.

It's not protected speech however.

A company is free to say they will reject someone if they have a criminal background, they can't ask if you have a criminal background.

What makes you think it's not protected speech?

It's a sliding scale at a high level:

"Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression."

Critically, an interview process is almost by definition not a public forum and the bar is thus significantly lower. With various questions about protected classes being barred considered completely reasonable. Further, this prohibits time/manor but not content.

Granted, some view free speech as nearly absolute, but with current case law this is rather far from the edge.

Whatever you're quoting is talking about it being okay to restrict speech in a public forum. They went out of their way to say time/place/manner apply to public forum speech. Why do you think that implies non-public speech would have a lower bar?

Would it also be constitutional for the government to prohibit fellow employees from asking each other what their salary is?

That's just about the legal question.

For the more cosmic sort of question, asking questions is definitely part of free speech. Free speech includes the right to have a conversation.

> Why do you think that implies...

Because that's the law. https://en.m.wikipedia.org/wiki/Forum_(legal)

"A nonpublic forum is not specially designated as open to public expression. For example, jails, public schools, and military bases are nonpublic forums (unless declared otherwise by the government). Such forums can be restricted based on the content (i.e., subject matter) of the speech, but not based on viewpoint. Thus, while the government could prohibit speeches related to abortion on a military base, it could not permit a pro-life speaker while denying a pro-choice speaker (or vice versa)."

PS: I get that people have strong opinions about this, but IMO if you care it's worth looking up the details. It's more reasonable than you might think.

Yeah. The question is WHY is it not protected speech.

They can still reject people before employment based on a criminal background. They simply need to make a good faith offer of employment before asking for a criminal background check. Thus preventing companies from simply rejecting people with a criminal background for ~zero cost.

> a protected class

I hate this effing phrase. I mean, I know that it's never been true that we don't have clearly-stratified "classes" of humanity in American society no matter what the founding fathers were aiming for, but this phrase just makes it all the more apparent.

So I guess I shouldn't hate it after all. At least it's honest.

Some animals are more equal than others.

You are conflating class, as in a stratified privilege hierarchy within a society, with the more usual use "a group of items with a thing in common."

For example, in a class-action lawsuit, the "class" means "people who claim to have been wronged in the same way by the defendant."

A "protected class" in US Law is a group of people you may not discriminate against based upon the "thing they have in common." For example, you if a job requires lifting a 50lb object, you may not eliminate an prospective employee for simply being female. But you may eliminate a prospective employee for being unable to lift a 50lb object.

In my experience for "good" salaried jobs, background checks come with or after the job offer (in NY it's after). Do these kinds of laws affect that? If I had a record, I'd rather know up front than accept an offer and then have it rescinded because of a background check.

I've actually had friends with a record accept offers, work at place for a few days or even weeks, and be asked to do a background check (and then told to leave!).

I wonder if this would put higher paid experienced people at a disadvantage as companies often use your previous salary as a reference for how much you are worth. Maybe you are not so good on your interviews but in the actual job you perform well so you are paid a higher salary.

Google does credit checks, at least they did.

While I can see some science behind that - I'm weary about it.

It's pretty easy to get in a whack credit situation for all sorts of reasons - 1/2 of issues are healthcare related.

Then to have to have people say 'I refuse sign' or whatever and risk their jobs.

Uncool.

Some roles have regulations requiring a credit checks (IRCC).

I think this is most relevant for government jobs with security clearance. If a person has serious money issues, they might be more easily influenced or bribed.

Credit Checks at Google are an effort to mitigate bribery ... what sorts of positions are likely to have this as a possibility? I'm genuinely curious.

> what sorts of positions are likely to have this as a possibility?

all the ones with access to the personal data of millions of people?

"all the ones with access to the personal data of millions of people?"

So most Google employees who own homes are carrying bazillions in mortgage loans are 'less risk' than others?

I understand the motivation, but it's a tricky thing.

Again - 1/2 of bankruptcies are due to healthcare issues.

It's these kind of systematic things that keep the underprivileged in down, while those with parents who can 'bail them out' get to move on unscathed.

I'm fully not a 'SJW' type of person, weary of it - but I have parents of at least 'reasonable' means (not rich by any stretch) and there were a few times where my life may have turned out very differently. Specifically with respect to employment.

> So most Google employees who own homes are carrying bazillions in mortgage loans are 'less risk' than others?

did you mean to reply to someone else? i'm just pointing out which google positions are the ones who have access to things worth trying to get illegally. i've taken no position on what makes a person risky.

Meant for Sova.

That said, most people at G probably have access to sensitive data.

So many jobs have that these days.

Google does credit checks for employment? That's bizarre.

If that’s bizarre consider the fact that Microsoft does credit check on employees every two years, as a condition of employment, and you can be fired if something really bad shows up. This is for employees that work in the Azure division and the purpose is to reassure customers who host their data on Azure.

That's not uncommon. I've had credit checks done a couple times.

Went on a few days with an HR professional. The reason why some companies do credit checks is to account for risk of fraud.

If someone has debts, they may be willing to do unethical things to quickly pay them off.

Would it be unconstitutional for a law to prohibit employees from asking each other what their salaries are?

If so, it's hard to see how this could survive scrutiny.

I wonder if this applies to services that connect workers with employers (e.g. caregivers, etc.) and premptively do background checks. People have been unconditionally blocked from those over things like tiny mariajuana possession charges that are years old (and in a state where such a charge wouldn't even be filed now).

If California doesn't want people to be judged on their criminal history, then perhaps California should look into the unjust laws they've enacted which place so many otherwise functional members of society into prison in the first place.

The problem is not unjust laws. The problem is companies' "Once a criminal, always a criminal" mentality that fails to allow for the possibility that rehabilitation can happen.

hard to blame companies when they can be sued if a person with a criminal record, say for assault, gets hired and later assaults somebody while on the company's time/premises/etc.

Can you give an example of an unjust law?

Like who? Or are you just presuming we're all intimately familiar with state law in California?

Can you name some of these unjust laws?

Banning asking about criminal history seems silly. It's not like you accidentally become a criminal. Your criminal history directly reflects your judgment and character.

In a country where nearly 100% of charges never go to trial. Where most such charges are for possessing drugs that are now legal in the state in question. Where cruel and unusual punishment is unconstitutional, but apparently lifetime exclusion from respectable employment is fair game. I think this comment says more about your character than anyone else's.

This regulates WHEN you ask about criminal history and requires individual assessment. There's loop holes, but I suspect you're not getting at anything nearly that nuanced.

That's a fair point with regards to drug convictions.

However, I wish you hadn't insinuated that I could only hold the opinions I do because of a character deficiency. I wrote my comment in good faith, and am perfectly willing to change my mind if given reason to. I think it's worth reflecting on your part that there are people who don't share your views and that maybe we have reasons for doing so besides being bad people. Even if my reasons are misguided, I'm still capable of being reasoned with, but attacking people's character is a quick way to polarize people who might be sympathetic to your point of view if engaged with in a more civil manner.

> but attacking people's character is a quick way to polarize people

That's funny because in your original comment you did just that to all people with a criminal record. Now somebody pushed you a little and you suddenly feel that it's unjust. Think about it a little.

My point was that treating people as enemies makes it nearly impossible to win them over to your side.

I apologize for implying that your belief that anyone whose ever plead guilty or been convicted of a crime has suspect character an hour earlier was a reflection of your own character. I didn't realize that made us feel like enemies.

>> but attacking people's character is a quick way to polarize people

You explicitly state all criminals intentionally demonstrated poor character, and implied they should be judged for that in perpetuity without legal protections. And I said that reflects on your character. If you've changed your mind, great, but I hardly think your comment demonstrates good faith at all, let alone compared to your issue with mine.

"However, I wish you hadn't insinuated that I could only hold the opinions I do because of a character deficiency."

Your post did the exact same thing regarding individuals with a criminal history. If someone got into a drunken bar fight when they were 19, should that really affect their job chances when they're 35? Or, better yet, someone who was arrested for protesting? Should a criminal conviction for essentially doing nothing but exercising your constitutional rights bar you from earning a living?

Not to mention, if persons with criminal convictions, especially ones that are not serious are not allowed to find employment, what do you think they're going to do? Who, other than society, do you think will bear that burden?

For reasons of public policy, the state wants to rehabilitate offenders and make them into productive members of society. Making it harder for employers to discriminate against them serves that public interest even if it is against the interest of specific employers.

A persons judgement and character are flexible constructs that change over time. A criminal history is a small window into that timeline that doesn't necessary reflect the person at the time an interview is given.

Isn't it also reasonable to think that history suggests future behavior?

I never suggested it didn't. Only that it was capable of change.

I agree with you.

If a person does their time, the mistakes they made in the past shouldn’t haunt them forever.

If you do your time, you are square with the state. That doesn't and shouldn't mean private business or individuals should be forced to accept you. Should we make a law that says your friends and family have to accept you once you do your time?

I choose now to live as a corporation.

Doesn't mean tabula rasa. The news is filled with actors and politicians whose careers are in shambles due to past abusive behavior.

Bad publicity does not mean much see for example: https://en.wikipedia.org/wiki/Marion_Barry

"Barry was released from prison in 1992, and two months later filed papers to run for the Ward 8 city council seat in that year's election.[72] Barry ran under the slogan "He May Not Be Perfect, But He's Perfect for D.C." He defeated the four-term incumbent, Wilhelmina Rolark, in the Democratic primary, winning 70 percent of the vote, saying he was "not interested in being mayor",[73] and went on to win the general election easily."

On October 28, 2005, Barry pleaded guilty to the misdemeanor charges stemming from an IRS investigation. The mandatory drug testing for the hearing showed Barry as being positive for cocaine and marijuana. On March 9, 2006, he was sentenced to three years probation for misdemeanor charges of failing to pay federal and local taxes, and underwent drug counseling.[97][98]

He was then reelected.

I think in Barry's case (as his slogan suggests) his "bad publicity" was actually a strength to his electorate. Some are popular enough that bad press doesn't sway opinion (ie, Trump supporters). I'd argue those are extreme outliers. I don't think Harvey Weinstein or Kevin Spacey will be working any time soon.

You might be right, but I think older examples say from 2007 or before would be more relevant than recent outrage which might not last.

Would you ever hire a convicted paedophile as your babysitter?

Thankfully, the law agrees that you shouldn't have to, and allows for the following:

The rub though is that people probably wouldn't want to hire that kind of a person for any job. The law doesn't allow for that.

Very true, even though nearly everybody reading this are in a position where that type of history has no bearing on anything. I wouldn't hire that person to watch my kids, but there is nothing I do for work where it matters. Maybe you should tell me to look of my coworkers shoulder once in a while to make sure she is not looking at something she shouldn't. However even if the pictures she is looking at are legal it is still something my company would fire her for doing at work.

Do things like the job atmosphere (and hence people wanting to leave rather than work or be associated with that kind of felon) and the perceived increased likelihood of a criminal to commit the crime again (and hence you not wanting to be associated with that) not enter your equation?

In a lot of areas public urination can be considered a sex crime, one advantage of this law will be that instead of the employer getting a box ticked that indicates some kind of crime, they'll be required to actually look up the criminal history and make a reasoned judgement.

I wouldn't mind working with someone who got hammered one time in their youth, alcoholism is pretty easy to pick up on and if the person is sane and level-headed in the workplace that's perfectly alright with me.

Your criminal history reflects your conviction history, not your propensity to break the law. Most people who don't abstain from alcohol have driven over the legal limit, been publicly intoxicated, and been a minor in possession. Many have been in possession of illegal drugs. Many older high schoolers and college students have committed acts that should put them on national sexual offender registries. If you've done any of the above, kindly show yourself the door so your employer can hire someone with better judgment.

I drove and got arrested once for being on the BAC limit (not over, on). It was after a company party. I couldn't let my car parked for the night so I decided to drive. If I had known that I was going to be pulled over that night I would have chosen to take an uber and let my car be towed. Or better, drink water.

All it takes is one mistake. Who should care except me if I got convicted? As long as I know, this incident never prevented me from doing my software engineer job.

> Who should care except me if I got convicted?

Someone who is considering hiring you as a truck driver, delivery driver, or pilot probably would care.

> Your criminal history reflects your conviction history, not your propensity to break the law.

It's an imperfect correlation, not a non-existent correlation.

> It's not like you accidentally become a criminal.

https://www.nytimes.com/2016/02/04/us/record-number-of-false...

Better to let 10 guilty people go free than 1 innocent person be punished.

There are other ways to figure out someone's judgement and character. I've had a couple of interviews where I believe the interviewer was trying to trigger an anger response, I assume to see how people handle stress. I've had interviews where the question of views on sexual harrasment came up. I've applied at places that required passing drug tests before sending an offer letter. In other words, there are plenty of ways to detect bad behavior without discriminating against the 100 million Americans with a criminal conviction [0], especially considering this discrimination particularly effects certain minority groups.

0: https://www.brennancenter.org/blog/just-facts-many-americans...

> without discriminating against the 100 million Americans with a criminal conviction

Word "discrimination" has a negative meaning that's not always true. Wouldn't you discriminate against 200 millions Americans who can't write FizzBuzz when interviewing for coding position?

But what if those FizzBuzz-failing people are racial minorities? Surely we should then ban FizzBuzz because those people tend to be a certain skin color. \s.

That's all this criminal history check ban amounts to, IMO.

If you can't FizzBuzz, you can't code; if I need a coder, I don't need you.

Nothing to do with skin color, sexual orientation, or anything else relevant to me as an employer. I'm not following how a criminal background check ban is equivalent to a bonafide occupational qualification.

so you're saying that you should never have a second chance at life if you have criminal history?

better answer from the heart... what you despise today, you could become tomorrow. all it take is a moment for your life to change.

No, I didn't say that. But on reading the linked article more carefully I'm more inclined to be supportive of the change since it doesn't disallow background checks, just prevents criminal history from being used to screen at the application stage.

your talking semantics. you didn't directly say it, but you did directly mean it.

"It's not like you accidentally become a criminal. Your criminal history directly reflects your judgment and character."

sorry dude, but if you're going to expression your opinions and make statements, either stand by and defend them or just don't make them at all.

> It's not like you accidentally become a criminal.

Well - that's debatable:

https://news.ycombinator.com/item?id=15846711

While the guy wasn't criminally charged or arrested (that last is also ingenuous, because being stopped for a traffic violation as he was is technically an "arrest"), things could have went far differently for him.

All for not wearing a seatbelt and for having his life savings in cash with him...

As it was, he lost that money for more than 8 months; he should get it back with interest earned or something (opportunity costs, etc).

Note that there is no ban on running a background check. This information will come out then. No reason to require people to disclose something you might not have cared about (as an employer) to begin with.

Good point. I didn't read that when I posted my comment.

Have you ever had sex with someone you're not married to? Which church do you go to?

Please don't respond to a bad comment with a worse one. Even if the other comment doesn't deserve better, the community does.

Yes, and I don't go to church. As far as I know neither is a crime in my state/country.

Giving your previous salary was a good way to help them offer you you a higher salary.

If there is a pay gap in any form, that's a way to perpetuate it. Suppose Group A is currently paid higher than Group B. Group A will be able to say, "I was paid this amount and I expect that much or more." Group B won't. Group A will get higher salaries than Group B. Next time they apply for jobs, the same thing will happen.

Yes, this potentially sucks for the people currently in Group A. A moral society cannot have "We will not make things worse for anyone" as an axiom, because that axiom would prevent taking power away from a tyrant. It's fine to say "We will not make things worse for people without a really good reason" - so the debate is just about whether fixing a pay gap is a good enough reason.

Seems like they can still ask "what Salary are you expecting?" Then you can quote them a higher salary. Or if your salary has previously suffered due to discrimination, you can quote a slightly higher salary than you should have received.

You can still volunteer it. They just can't ask up-front anymore.

How about background checks? Now that they can't go thru the door, they'll crawl up your window.

Or just job history.

If you were in jail, you have a gap in your resume. Seems like you could just filter out anyone with a gap in their resume of more than say a year.

The intentions are good on this bill. I worry it is going to be a challenge to actually implement.

There's other reasons you might have a gap on your resume.

Lots of women (and some men) take years off to have and raise kids. You might have an ailing parent who required care You might have worked several small, irrelevant 'odd jobs' to live off of while finding yourself on a journey of self-discovery You might have been a ski bum / surf bum.

Having a multi-year gap doesn't look good no matter what, but 'prison' isn't the only reason one might have such a gap :)

Sure, but if you wanted to exclude prisons, you could exclude anyone with a multi-year gap.

Would you hit some people that didn't go to prison? Sure. But it seems a close enough filter to discriminate on...

Where did you get the statistic that the majority of people who have been out of work for more than a year are criminals?

My statement does not say that. Perhaps you need to try reading it again.

One other thought - there are people who serve less than a year in prison.

One scenario is that they get out before serving their full sentence. (I'm not sure on the details of how that happens, but I've read news articles about so-and-so who served 9 months of their X year sentence, and then got out for good behavior, etc)

Are people in America legally bound to write the truth on their CVs? You could just say you worked for some made-up firm or for your friend's firm.

Legally bound? I don't think so. But most companies consider lying on your resume grounds for immediate termination.

Keep in mind that in the US, HR reps will sometimes forward the CV of an applicant to the prospective team that they'll be working with. So, while it may be possible to lie one's way past an HR rep with a non-STEM background, it may ultimately backfire on you. Your prospective coworkers have much more incentive to scrutinize your CV for accuracy.

Every "good job" I've applied for has had an explicit warning that lying during the interview process will result in automatic dismissal. It's perfectly justifiable.

If only they applied their guidelines to their own interviewers.

There have been some prominent cases of people beefing up their resumes (both public and private sector) and getting fired after the employer was made aware.

Given that the alternative if they don't lie is probably unemployment anyway, it sounds like lying is a winner.

True enough, but often times these embellishments were completely unnecessary. (it might have helped bootstrap a prev job, but now is an unnecessary appendage in the resume which they should have cleaned up).

That's a good way to be fired later.

Of course. Lies on your CV are committing fraud.

Do you have an actual legal reference for this?

If you ask me what my favorite food is and I say Fish (when it is really Pizza), I did not commit fraud.

If I testify before a court and lie, I commit a specific offense (perjury).

It is not actually clear to me what lying on a CV is in the United States. It may actually depend if you are applying to a government agency vs McDonalds....

https://en.wikipedia.org/wiki/Job_fraud

https://en.wikipedia.org/wiki/Fraud

"Although elements may vary by jurisdiction and the specific allegations made by a plaintiff who files a lawsuit that alleged fraud, typical elements of a fraud case in the United States are that:

1.) somebody misrepresents a material fact in order to obtain action or forbearance by another person,

2.) the other person relies upon the misrepresentation, and

3.) the other person suffers injury as a result of the act or forbearance taken in reliance upon the misrepresentation."

Example lie:

I'm CCNA certified.

1.) Yes

2.) Yes (I'm hired)

3.) The company loses a government contract after finding out that I'm not actually CCNA certified, and the bid required all engineers on the project are CCNA certified (alternately, I completely screw up the routers and take the companies infrastructure out of the global routing tables)

Basically, if the company relies on the lie to hire you, and then later suffers an injury from that lie, then a fraud has been committed.

Note that it works both ways[https://en.wikipedia.org/wiki/Employment_fraud]

4) You were CCNA certified. The certification expired around that time.

5) Sue the company?

If you are hired based on your experience, and your experience is a lie, and you get the job based on that lie, I thought that's sort of the definition of fraud.

But I'm not a lawyer, so I could be wrong.

One can have a criminal record, even a serious criminal record and never serve any time, or serve all the time under a work release program.

Plus all of the other non-criminal reasons for a gap that many have already stated

No this would not be a "good" way to eliminate criminals from your application pool

>> The ban applies to both oral and written inquiries, whether they’re made directly by an employer or through an agent.

So employers can't ask job applicants, but they can still ask Equifax, right? Your current employer may be sharing your salary with Equifax. (There is no law preventing employers from doing so.) Equifax offers various services using the salary info shared by your employer. For more info see: https://www.theworknumber.com/

Companies don't get data from Equifax without asking for it. So they would need to ask for salary data before getting salary data.

A more general rule is 'cute' interpretations of the law don't work.

Reply on news.ycombinator.com