AccuSource Blog

New Development in Salary History Bans

Federal Judge Rules Portion of Philadelphia Salary History Ban Violates Constitutionally-Protected Free Speech

 

 

constitution-book-with-gavelOn April 30, 2019 United States District Court Judge Mitchell S. Goldberg in Chamber of Commerce for Greater Philadelphia v. City of Philadelphia issued an opinion ruling a major element of the City of Philadelphia ordinance banning employers from asking job applicants about their prior salary history violates the U.S. Constitution’s First Amendment free speech clause. In his opinion, Judge Mitchell concisely explains the “Inquiry Provision” of the ordinance infringes on protected free speech because “it forbids employers from asking questions on a specific topic.” However, he further determined the “Reliance Provision” does not violate the constitution. Enacted in January 2017, the provisions in the City of Philadelphia ordinance prohibiting inquiries into wage history are as follows:

It is an unlawful employment practice for an employer, employment agency, or employee or agent thereof:

(i) 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, or retaliate against a prospective employee for failing to comply with any wage history inquiry or for otherwise opposing any act made unlawful by this Chapter.

(ii) To rely on the wage history of a prospective employee from any current or former employer of the individual in determining the wages for such individual at any stage in the employment process, including the negotiation or drafting of any employment contract, unless such applicant knowingly and willingly disclosed his or her wage history to the employer, employment agency, employee or agent thereof.

It is probable there will be further action in the case by one or both parties in terms of appeals. AccuSource will provide further updates as they develop. Employers in Philadelphia should consult their legal counsel prior to utilizing salary history information to ensure they are compliant with current law. Since the “Reliance Provision” remains intact, employers may still encounter challenges in lawfully utilizing salary history information obtained in the hiring process in employment decisions.

 

Read more about salary history ban legislation here:

Bucking Trends, Michigan Passes Bill Banning Salary History Bans

• Philadelphia Clarifies Ordinance Banning Salary History Questions

• Salary History Cannot Justify Gender Pay Gap

• San Francisco Bans The Use Of Salary History In The Hiring Process

• Updating Hiring Practices In Light Of Salary History Bans

FILED UNDER: News, Compliance, Salary
Cynthia Woods

Cynthia Woods

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