In December 2016 Philadelphia’s City Council passed a Wage Equity Ordinance (“Ordinance”) prohibiting employers from asking applicants for their salary history or to retaliate against a prospective employee for failing to answer such a question. The law, which was to become effective May 23, 2017, has been stayed pending resolution of legal challenge by the Chamber of Commerce for Greater Philadelphia, alleging that the law violates employers’ First Amendment rights.
Nevertheless, on October 24, 2017, the Philadelphia Commission on Human Relations adopted a regulation (“Regulation”) implementing the Ordinance. The Regulation seeks to clarify what employers may and may not ask and to further define which employers and applicants are covered by the Ordinance.
Covered Employers and Applicants
The Regulation specifies that the Ordinance the term “Employer” applies only to persons who are interviewing applicants with the intention of filling a position located within the City.
Prohibited Inquiries
Under the Regulation, an employer “shall not include a question on paper or electronic applications asking Prospective Employees to provide their salary history at any previous position.” The Regulation also prohibits employers from asking current employees seeking a new position (located in Philadelphia) about the employee’s wage history from any previous employer.
Permissible Inquiries
Employers may inquire into the applicant’s salary expectations, skill level, and experience relative to the position sought. In addition, employers may use voluntary salary history disclosures an applicant makes “knowingly and willingly” during an interview, provided it is not in response to a question from an employer.
Action Items
Although the Ordinance is currently on hold, employers with positions or offices in Philadelphia may nevertheless wish to prepare for the possibility that the law will become effective by:
- Identifying jobs that are based in Philadelphia. This will be especially important for positions where an employee may work in more than one location.
- Preparing a Philadelphia-specific employment application that removes any request for salary history. The ordinance does not expressly state that it is sufficient to have an instruction on the employment application that directs Philadelphia applicants not to answer salary history questions.