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24
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PENNSYLVANIA
RESTAURANT & LODGING
matters
•
Spring 2017
LEGAL
DOCKET
The Attorney
ask
Recent Developments in
Wage Equity Legislation
Erin R. Kawa, Esquire
SHUMAKER WILLIAMS, P.C.
General Counsel,
Pennsylvania Restaurant & Lodging Association
Erin R. Kawa
ON JANUARY 23, 2017,
Philadelphia
Mayor Jim Kenney signed into law
Bill No. 160840
, which amends the
Philadelphia Fair Practices Ordinance and
prohibits employers from inquiring about
prospective employees’ salary histories.
Following on the heels of the passage
of similar legislation in Massachusetts—
which became the first state to prohibit
employers from requiring employees to
disclose wage history as a condition of
employment—
Bill No. 160840
passed with
unanimous approval by the Philadelphia
City Council. This ordinance is the first of its
kind in a United States city; however, similar
legislation has been introduced in New York
City and at the state level in Pennsylvania
and New Jersey.
The amended ordinance makes it unlawful
for an employer, employment agency, or an
agent thereof to:
• Inquire about an applicant’s wage
history or require disclosure of an
applicant’s wage history;
• Condition employment, or consideration
for employment, on disclosure of wage
history;
• Rely on the wage history of an applicant
in determining that individuals at any
stage of the employment process,
unless the applicant knowingly and
willingly disclosed his or her wage
history to the employer; or
• Retaliate against an applicant for failing
to comply with an inquiry regarding
wage history or opposing an employer’s
alleged violation of the Ordinance.
“Employer” is broadly defined to include
entities that do business in Philadelphia,
and likely will apply to employers that hire
employees to physically or remotely work
at a location within the city. The ordinance
allows for enforcement by the Philadelphia
Human Relations Commission and a
private cause of action, with remedies
and penalties including compensatory
damages, punitive damages, injunctive
relief, attorney’s fees, and costs.
The objective of the ordinance is to
promote wage equity by curbing
discrimination in the hiring process.
Specifically, the original bill cites a 2015
U.S. Census Bureau report that found
that women in Pennsylvania earn 79
cents for every dollar a man makes, with
women of color typically earning even
less. Accordingly, the City Council found
that inquiring about wage history can
perpetuate that existing gap because
prior wages would serve as the basis for
setting the compensation for the current
position. Proponents of the bill argue that
the responsibilities of a position should
determine the appropriate compensation—
not the prior wages earned by an applicant.
The passage of the ordinance was not
without controversy, and its viability has
been called into question by members
of the business community and the
Pennsylvania Legislature. For example,
Comcast threatened to sue Philadelphia
for a purported violation of employers’ First
Amendment rights, claiming that there is
no evidence to suggest that inquiring about
wage history perpetuates discrimination,
and therefore Philadelphia cannot justify
curtailing employers’ rights to ask. The
Philadelphia Chamber of Commerce has
echoed Comcast’s concerns regarding
evidentiary support, and argues that
preventing employers from questioning
applicants about wage history will prevent
job growth and business expansion.
Philadelphia Becomes the First U.S. City to Ban
Employers from Inquiring About Wage History