Search form

Business Group Challenges Constitutionality of Philadelphia Wage History Ordinance

By Stephanie J. Peet and Timothy M. McCarthy
  • April 13, 2017

The Chamber of Commerce for Greater Philadelphia is challenging the constitutionality of Philadelphia’s Wage History Ordinance in the U.S. District Court for the Eastern District of Pennsylvania. It also seeks a preliminary injunction of the Ordinance, which is scheduled to take effect on May 23, 2017.

The Ordinance prohibits employers in Philadelphia from inquiring about the wage history of prospective employees. It was passed unanimously by the Philadelphia City Council in December and signed into law by Mayor Jim Kenney on January 23. (For more on the Ordinance, see our article, Philadelphia to Restrict Wage History in Hiring Decisions, and blog post, Philadelphia Mayor Signs into Law Legislation to Ban Inquiries into Wage History.)

The Ordinance makes it an unlawful employment practice “for an employer, employment agency, or employee or agent thereof” to “inquire about a prospective employee’s wage history, require disclosure of wage history, or condition employment or consideration for an interview or employment on disclosure of wage history.”

It also includes an anti-retaliation provision, prohibiting employers from taking adverse action against an applicant or employee who does not comply with a wage history inquiry.

Employers who fail to comply with the Ordinance can be subject to a private court action once administrative remedies are exhausted. Employers found in violation of the Ordinance would face compensatory and punitive damages, attorneys’ fees, court costs, injunctive relief, and administrative penalties. In addition, employers with repeat, willful violations could face jail time that includes up to 90 days’ imprisonment.

The Lawsuit

The Chamber argues the Ordinance suppresses the free speech rights of employers in violation of the First Amendment to the United States Constitution. The Chamber of Commerce for Greater Philadelphia v. City of Philadelphia and Philadelphia Commission on Human Relations, No. 17-01548 (E.D. Pa. filed Apr. 6, 2017).

The Chamber contends the Ordinance only “indirectly” addresses the gender wage-gap, the legislation’s prohibitions are not narrowly tailored to achieve its overall goal, and there is no substantial basis for restricting speech. The lawsuit further alleges the employer penalty provisions, which allow punitive damages, fines, and jail time, violate the Due Process Clause of the Fourteenth Amendment.

In addition, the Chamber takes issue with the geographic reach of the Ordinance, which ostensibly applies to any employer doing business in Philadelphia. The Chamber argues generally that because the Ordinance regulates activity that may occur outside of Philadelphia, it violates the U.S. Constitution’s Commerce Clause, the Pennsylvania Constitution, and the Pennsylvania Home Rule Act. Along with its Complaint, the Chamber filed a motion for a preliminary injunction seeking to postpone the effective date of the Wage History Ordinance pending the outcome of the litigation.

Implications for Employers

Other localities to have passed laws banning inquiries into salary history include Massachusetts, Puerto Rico, and New York City. (See our articles, Massachusetts Governor Signs Tough Pay Equity Bill, Puerto Rico Enacts Equal Pay Law, Prohibits Employers from Inquiring about Past Salary History, and New York City Council Approves Legislation Limiting Prospective Employers’ Ability to Obtain and Use Salary History Information.) How the court decides in the case against the Ordinance likely will be watched closely.

Meanwhile, employers with operations in Philadelphia should continue to prepare for the new obligations and potential penalties by reviewing their policies and practices to ensure compliance by the May 23 effective date.

If you have any questions, please contact the Jackson Lewis attorney with whom you regularly work.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

September 13, 2019

Illinois Outlaws Questions about Job Applicants’ Prior Salaries

September 13, 2019

Beginning September 29, 2019, it will be against the law in Illinois for employers to ask job applicants about their prior salaries or wage history. In order to avoid fines and lawsuits, companies recruiting in Illinois should remove any questions about prior pay from their job applications and any related documents both on-line or in... Read More

September 13, 2019

California Supreme Court Rejects Claim for Unpaid Wages under PAGA

September 13, 2019

Putting an end to employees’ backdoor attempts to recover unpaid wages in Private Attorneys General Act-only actions under California Labor Code Section 558, the California Supreme Court has ruled against allowing such claims. ZB, N.A., et al. v. Superior Court, No. S246711 (Sept. 12, 2019). This is surprising, as the Court provided... Read More

September 13, 2019

California Worker Misclassification Bill Closer to Enactment

September 13, 2019

The California Assembly has passed a bill that would require workers to be classified as employees if the employer exerts control over how the workers perform their tasks or if their work is part of the employer’s regular business. Assembly Bill 5 (AB 5) passed by a vote of 61-16 in the Assembly. Governor Gavin Newsom has stated his... Read More

Related Practices