6 ms·

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

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 9y ago
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?bill_id=201720180AB1008 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...
- SamReidHughes 9y ago
  Asking questions is speech.
  - Retric 9y ago
    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 9y ago
      What makes you think it's not protected speech?
      - Retric 9y ago
        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 9y ago
        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 9y ago
        > 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.
Retric 9y ago
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.
Cyberdog 9y ago
> 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.
- cjensen 9y ago
  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.

geofft 9y ago

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?bill_id=201720180AB1008 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...

SamReidHughes 9y ago
Asking questions is speech.
- Retric 9y ago
  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 9y ago
    What makes you think it's not protected speech?
    - Retric 9y ago
      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 9y ago
        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 9y ago
        > 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.

Retric 9y ago

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.

Cyberdog 9y ago

> 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.

cjensen 9y ago
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.