PHILADELPHIA – Philadelphia may
become the first city in the nation to prohibit employers from asking
prospective employees how much they were paid at their last jobs.
The Philadelphia City Council has approved
amending its fair practice ordinance because of the discrepancy
between what women are paid compared to men. The
council based its action on 2015 census bureau report statistics
that say women are paid 79 cents for every dollar men make. The
census shows African-American women are paid just 68 cents for every
dollar men make.
In August, Massachusetts passed a
similar law banning employers from collecting a prospective
employee's wage history. The Philadelphia City Council says salaries should be based on the
responsibilities of the job, not a person's past wage history.
California has passed a similar law as well, but both in
Massachusetts and California the law was passed by states, not
“This is the first city that I'm
aware of nationwide that has passed any law prohibiting it,” W.
John Lee, a law partner at Morgan Lewis, told the Pennsylvania
Record. “New York City is considering a similar bill currently,
but it hasn't been passed yet. The mayor of New York has issued an
executive order prohibiting city agencies from inquiring about prior
The ordinance, which must be signed by
Philadelphia Mayor Jim Kenney before it becomes law, will basically
amend Philadelphia's Fair Practices Law to prohibit discrimination in
the work place, Morgan said.
If a person feels they have been
discriminated against for failing to reveal their past wages, they can
file a complaint with the Philadelphia Human Right Commission, which
would then investigate the claim, he said. If a violation is found
there are several actions that be taken.
“The Philadelphia Commission on Human
Rights can enforce the ordinance and can do so through issuing a
cease and desist order, or order injunctive relief and require the
payment of damages and attorney fees if they find a violation,” Lee
Lee said the laws are fairly
new in California and Massachusetts and he is not aware of any
challenges or interpretations regarding the provisions yet.
“I think the implications are that
employers who do business and recruit applicants within Philadelphia
need to be mindful of this and prepare for it going forward,” Lee
The law may put Philadelphia employers
at a disadvantage when it comes to recruiting new employees. Lee said
he would not be surprised if employers decided to challenge it if it
is signed into law.
“There may be some employers who want
to challenge the provision, it's obviously a sea change in terms of
how almost every company makes initial pay decisions,” Lee said.
“It's very commonplace, obviously, when you're trying to recruit
talent from another competitor or from a different industry that the
pay offer has to be competitive and this is obviously an impediment
The ordinance says it is unlawful for
an employer to take retaliatory action against a prospective employee
who does not reveal his or her previous salary. This is another
aspect of the proposed law that could be open to interpretation.
would have to be decided if an employer failing to offer a job to a
prospective employee who did not reveal a past salary is an act of
retaliation. This is something that the court would have to decide by
looking at the situation and past retaliation case law, Lee said.