Striking of Philadelphia's wage inquiry law might deter other cities from passing similar legislation

By Ryan Croft | May 22, 2018

The U.S. District Court for the Eastern District of Pennsylvania recently struck down part of a Philadelphia ordinance that prohibited employers from asking job applicants about their pervious salaries.

PHILADELPHIA — The U.S. District Court for the Eastern District of Pennsylvania recently struck down part of a Philadelphia ordinance that prohibited employers from asking job applicants about their previous salaries.

In January 2017, Philadelphia enacted an ordinance that barred employers from asking applicants about their prior wages. It also kept employers from setting current wages based on applicants’ past wages. The ordinance was passed to respond “to the problem of wage inequality for women and minorities,” according to the court’s decision.

However, the court on April 30 found that the first part of the ordinance violated the First Amendment. The second part is still in effect. 

“[W]e view the Philadelphia ordinance as a serious infringement on First Amendment rights,” Richard Samp, chief counsel of the Washington Legal Foundation, told the Pennsylvania Record. “Philadelphia seeks to prevent employers from communicating truthfully with job applicants.”

Samp called the court’s decision “a significant victory” because other cities that are considering similar legislation.

“These types of laws are being considered in numerous jurisdictions and have already been adopted in several states and at least six or seven major cities,” he said. “Cities are far less likely to pass speech restrictions if they think it is likely that a court will find a First Amendment violation and will award substantial attorney’s fees against the city.”

The Philadelphia Chamber of Commerce filed on April 6, 2017, a complaint and a motion for a preliminary injunction against the city Philadelphia and the Philadelphia Commission on Human Relations, stating the ordinance violates the employer’s first amendment rights. 

Judge Mitchell S. Goldberg based his decision on the fact that employers and potential employees discussing previous wages fell under the First Amendment’s protection of free speech and that interfering to determine specific provisions for those conversations violated that free speech.

The court considered that discussing job applications possibly fell under the provision of “commercial speech,” and commercial regulation is usually more regulated by the government, according to the court document.

The court is allowed to more strictly regulate commercial speech as it would commercial activities. However, the Chamber of Commerce argued a conversation between an applicant and employer was not commercial speech because it was more complex than simply enabling a business transaction.

Philadelphia has not yet announced a plan to appeal the ruling, but Samp said he expects it will happen by May 31, when the judge and attorneys hold a status conference about the case.

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