
California updates laws around salary and criminal histories of job applicants - manigandham
https://justworks.com/blog/california-ban-job-applicant-salary-criminal-history
======
bulatb
> 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.

~~~
tonyhb
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.

~~~
bulatb
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.

~~~
otakucode
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.

~~~
bulatb
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.

------
kelukelugames
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._

~~~
ApolloFortyNine
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).

~~~
mabbo
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.

~~~
Shivetya
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.

~~~
lsaferite
For a subset of jobs.

------
Dowwie
"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

~~~
frankc
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.

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

~~~
bertil
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.

------
goialoq
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...](https://onlabor.org/ban-the-box-and-perverse-consequences-part-i/)

> 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.

~~~
conanbatt
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!

~~~
throwaway613834
It needs more upvotes. I'm confused at how it's at the bottom of the comments
here. It's an excellent one.

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

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

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

~~~
kingnothing
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.

------
RangerScience
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.

~~~
0xWilliam
What is to stop people from just lying about their salary information?

~~~
greenleafjacob
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.

------
perfmode
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?

~~~
_rpd
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...](https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB168)

~~~
maxk42
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.

~~~
s73ver_
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.

~~~
maxk42
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.

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

~~~
maxk42
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.

------
noja
What about looking up their salary at a credit agency?

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

------
DavidWoof
"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...](https://www.theatlantic.com/business/archive/2016/08/consequences-
of-ban-the-box/494435/)

------
analog31
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...](http://dailyreporter.com/2017/11/17/bill-would-prevent-local-
officials-from-setting-stricter-licensing-minimum-wage-standards/)

~~~
cmiles74
Just in case you weren't sure how corporations feel about this issue. ;-)

------
cjensen
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.

~~~
geofft
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...](https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1008)

~~~
SamReidHughes
Asking questions is speech.

~~~
Retric
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.

~~~
SamReidHughes
What makes you think it's not protected speech?

~~~
Retric
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.

~~~
SamReidHughes
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.

~~~
Retric
> Why do you think that implies...

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

------
sotojuan
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!).

------
pkaye
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.

------
alexasmyths
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.

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

~~~
whitefish
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.

------
SamReidHughes
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.

------
TallGuyShort
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).

------
AcerbicZero
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.

~~~
ryandrake
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.

~~~
trhway
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.

------
workthrowaway27
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.

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

~~~
frankc
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?

~~~
smhost
I choose now to live as a corporation.

------
randyrand
Giving your previous salary was a good way to help them offer you you a
_higher_ salary.

~~~
geofft
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.

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

~~~
brianwawok
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.

~~~
lordnacho
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.

~~~
_rpd
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.

~~~
user5994461
If only they applied their guidelines to their own interviewers.

------
interlocutor
>> 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/](https://www.theworknumber.com/)

~~~
Retric
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.

