5 ms·

There's a case to be made for an employee protection preventing an employer from firing an employee for refusing to produce pay stubs from a past employer. Howe

by lend000 10y ago

There's a case to be made for an employee protection preventing an employer from firing an employee for refusing to produce pay stubs from a past employer. However, I've said it before -- preventing a question from being asked is state overreach and constitutes a violation of the first amendment, in my opinion.

teej 10y ago
There are already loads of questions that employers aren't allowed to ask. Are you married? Are you pregnant? How many kids do you have? Is your significant other black? When was the last time you went to church? So, you're about 50, is that right?
- TulliusCicero 10y ago
  Technically they can ask those things, they're just not allowed to discriminate based on the answers, so asking them is a bad idea.
- pc86 10y ago
  A) They can legally ask all of these. B) All of these are in reference to one or more protected classes, which is why it's not legal to discriminate based on one's answer(s) or refusal to answer. C) Last I checked, "previously made {less,more} than a certain salary" is not a protected class.
  - marcosdumay 10y ago
    About (C), it has just become one.
fuzzybeard 10y ago
While it's a smart move not to disclose your prior salary during negotiations, I really don't want there to be legal implications for the back and forth during this process. It's great in theory, but micromanaging businesses like this is over reach, though typical for NYC.
- anigbrowl 10y ago
  Contract bargaining is great in theory as well, because in theory bargains are made on a level playing field between free agents. In practice employment bargaining is usually highly asymmetrical and employees are held to contracts of adhesion rather than being able to negotiate the conditions of their work. Why is it overreach when government promulgates policies that support the interests of citizens, presumably at the request of those citizens? Businesses are constantly lobbying government to change the rules in their favor, but any time rules are changed in the ways that don't benefit them they howl about government overreach. The government is not some meddling entity that barged into a happy marriage between you as employer and your workers as employees. In theory - though governmental behavior is also flawed in the real world - it exists to serve the interests of all, individual or organizational. It's apparent that a majority of people dislike answering questions about pay and do not wish to be pressured into revealing such information, but as soon as they formalize that preference by making it into a rule folks like yourself are labeling it as overreach.
sjg007 10y ago
I mean, they could fire you or just demote your pay otherwise. So your best bet is multiple offers.
anigbrowl 10y ago
How is it state overreach but employers aren't engaged in corporate overreach? The state is not there to look after only the interests of the employed, but also of the employees. You don't have a right to know that information, and as an employer you potentially exert significant economic leverage over the potential employee, so the question has great potential to be coercive. It's none of your business how much a potential employee earned in their previous employ. Your only reason for asking is to improve your own negotiating position by making it easier to guess what the employee will settle for. The only question you should be asking the employee about pay is how much they want in exchange for what you want them to do. As for your first amendment argument, that's total nonsense. You are not engaged in speech to promote your views, nor are you being prevented from expressing your views in any way. If this should be protected speech then so should 'your money or your life' when uttered by a highwayman, who by your logic is merely proposing a bargain that the recipient is free to decline.
- lend000 10y ago
  > you potentially exert significant economic leverage over the potential employee The keywords here are 'potentially' and 'significant' -- the difference is that the state has absolute power over you and the fundamental rule of law protects your right to free speech in a public context. Private, consensually entered job offer negotations are a different thing altogether. Certainly, answering a question does not strip you of any of your rights. You can say whatever you want. As I said in my original comment, discriminating based on refusal to produce prior pay stubs is a completely different category and has nothing to do with the first amendment. > You are not engaged in speech to promote your views, nor are you being prevented from expressing your views in any way. If this should be protected speech then so should 'your money or your life' when uttered by a highwayman, who by your logic is merely proposing a bargain that the recipient is free to decline. The first amendment doesn't come with the 'strings attached' that you seem to think. There's a nice outline here: https://en.wikipedia.org/wiki/United_States_free_speech_exceptions#Fighting_words_and_offensive_speech https://en.wikipedia.org/wiki/United_States_free_speech_exce... Your hyperbolic example of "your money or your life" is clearly in the 'Fighting words' category, constituting a threat or intimidation, if used as such.
ramblenode 10y ago
> preventing a question from being asked is state overreach and constitutes a violation of the first amendment, in my opinion. IANAL, but asking about salary as part of an interview seems likely to fall under commercial speech. > Commercial speech, such as advertisments, has been ruled by the Supreme Court to be entitled to less protection under the First Amendment than noncommerical speech. [0] [0] https://www.law.cornell.edu/wex/commercial_speech https://www.law.cornell.edu/wex/commercial_speech
- lend000 10y ago
  Commercial speech clauses do not apply to everything a business (or person engaged in business) does or says -- certainly not private employment negotiations where it's unclear which party would be the 'customer' and which the commercial seller. From your link, I think it makes it clear that the commercial speech distinction is almost exclusively used for advertising.
s73ver 10y ago
If we want to prevent discrimination based on the answer, then why should we allow the question to be asked? In that case, those that either are new and lack experience, or don't feel they have a strong enough position to say no to answering are still going to feel the negative effects of it. Ban the question entirely, and everyone is equally protected.

by lend000 10y ago

teej 10y ago

There are already loads of questions that employers aren't allowed to ask. Are you married? Are you pregnant? How many kids do you have? Is your significant other black? When was the last time you went to church? So, you're about 50, is that right?

TulliusCicero 10y ago
Technically they can ask those things, they're just not allowed to discriminate based on the answers, so asking them is a bad idea.
pc86 10y ago
A) They can legally ask all of these. B) All of these are in reference to one or more protected classes, which is why it's not legal to discriminate based on one's answer(s) or refusal to answer. C) Last I checked, "previously made {less,more} than a certain salary" is not a protected class.
- marcosdumay 10y ago
  About (C), it has just become one.

fuzzybeard 10y ago

While it's a smart move not to disclose your prior salary during negotiations, I really don't want there to be legal implications for the back and forth during this process. It's great in theory, but micromanaging businesses like this is over reach, though typical for NYC.

anigbrowl 10y ago
Contract bargaining is great in theory as well, because in theory bargains are made on a level playing field between free agents. In practice employment bargaining is usually highly asymmetrical and employees are held to contracts of adhesion rather than being able to negotiate the conditions of their work. Why is it overreach when government promulgates policies that support the interests of citizens, presumably at the request of those citizens? Businesses are constantly lobbying government to change the rules in their favor, but any time rules are changed in the ways that don't benefit them they howl about government overreach. The government is not some meddling entity that barged into a happy marriage between you as employer and your workers as employees. In theory - though governmental behavior is also flawed in the real world - it exists to serve the interests of all, individual or organizational. It's apparent that a majority of people dislike answering questions about pay and do not wish to be pressured into revealing such information, but as soon as they formalize that preference by making it into a rule folks like yourself are labeling it as overreach.

sjg007 10y ago

I mean, they could fire you or just demote your pay otherwise. So your best bet is multiple offers.

anigbrowl 10y ago

How is it state overreach but employers aren't engaged in corporate overreach? The state is not there to look after only the interests of the employed, but also of the employees. You don't have a right to know that information, and as an employer you potentially exert significant economic leverage over the potential employee, so the question has great potential to be coercive. It's none of your business how much a potential employee earned in their previous employ. Your only reason for asking is to improve your own negotiating position by making it easier to guess what the employee will settle for. The only question you should be asking the employee about pay is how much they want in exchange for what you want them to do. As for your first amendment argument, that's total nonsense. You are not engaged in speech to promote your views, nor are you being prevented from expressing your views in any way. If this should be protected speech then so should 'your money or your life' when uttered by a highwayman, who by your logic is merely proposing a bargain that the recipient is free to decline.

lend000 10y ago
> you potentially exert significant economic leverage over the potential employee The keywords here are 'potentially' and 'significant' -- the difference is that the state has absolute power over you and the fundamental rule of law protects your right to free speech in a public context. Private, consensually entered job offer negotations are a different thing altogether. Certainly, answering a question does not strip you of any of your rights. You can say whatever you want. As I said in my original comment, discriminating based on refusal to produce prior pay stubs is a completely different category and has nothing to do with the first amendment. > You are not engaged in speech to promote your views, nor are you being prevented from expressing your views in any way. If this should be protected speech then so should 'your money or your life' when uttered by a highwayman, who by your logic is merely proposing a bargain that the recipient is free to decline. The first amendment doesn't come with the 'strings attached' that you seem to think. There's a nice outline here: https://en.wikipedia.org/wiki/United_States_free_speech_exceptions#Fighting_words_and_offensive_speech https://en.wikipedia.org/wiki/United_States_free_speech_exce... Your hyperbolic example of "your money or your life" is clearly in the 'Fighting words' category, constituting a threat or intimidation, if used as such.

ramblenode 10y ago

> preventing a question from being asked is state overreach and constitutes a violation of the first amendment, in my opinion. IANAL, but asking about salary as part of an interview seems likely to fall under commercial speech. > Commercial speech, such as advertisments, has been ruled by the Supreme Court to be entitled to less protection under the First Amendment than noncommerical speech. [0] [0] https://www.law.cornell.edu/wex/commercial_speech https://www.law.cornell.edu/wex/commercial_speech

lend000 10y ago
Commercial speech clauses do not apply to everything a business (or person engaged in business) does or says -- certainly not private employment negotiations where it's unclear which party would be the 'customer' and which the commercial seller. From your link, I think it makes it clear that the commercial speech distinction is almost exclusively used for advertising.

s73ver 10y ago

If we want to prevent discrimination based on the answer, then why should we allow the question to be asked? In that case, those that either are new and lack experience, or don't feel they have a strong enough position to say no to answering are still going to feel the negative effects of it. Ban the question entirely, and everyone is equally protected.