Potential Ban on Questioning Job Applicants on Wage History Gaining Momentum

On December 8, 2016, Philadelphia City Council passed new legislation, Bill No. 160840, which would make it illegal for Philadelphia employers to ask an applicant any questions regarding their salary history and fringe benefits history. The Bill would amend Philadelphia’s Fair Practices Ordinance and prohibit both employers and employment agencies from questioning potential employees about their wage history.

Under the Bill, an “Employer” is defined as “any person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse, Life Partner or children, including any public agency or authority; any agency, authority or other instrumentality of the Commonwealth; and the City, its departments, boards and commissions.” It’s certainly important to note that in order to be deemed an “Employer”, one only needs to employ one person and the definition is broad enough to include those who do business in the City of Philadelphia even if they’re not headquartered there.


The Bill
certainly has teeth, including an anti-retaliation provision which precludes employers from taking any sort of retaliatory action against a prospective employee for refusing to offer wage history information. Under this new piece of legislation, employers will be prohibited from inquiring about a prospective employee’s past earnings and basing employment or interviewing decisions on an employee’s disclosure of wage history.

There are, of course, certain scenarios where a potential employee would want to disclose their wage history in efforts to entice a higher offer from a potential employer. Bill No. 160840 does have an exception for such a scenario which permits a potential employee to knowingly and willingly disclose their wage history. In such a scenario, this information may be relied upon by an employer in making an offer.

The Bill will take effect 120 days from Philadelphia Mayor Jim Kenney’s signing it into law. Assuming this Bill is indeed signed by Mayor Kenney, with all signs indicating that this is the likely outcome, employers in the City of Philadelphia covered by this legislation would be wise to remove questions on their application forms which inquire into an applicant’s current or past wage information and to train their hiring or HR Department to avoid questions which could be viewed as attempting to uncover past salary information of a potential employee.
It is worth noting that the Philadelphia Chamber of Commerce has strongly voiced their opposition to this legislation.


Legal Disclaimer
: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell, LLP, nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

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Federal Law Provides Clearer Protection for Pregnant Workers

The United States Equal Employment Opportunity Commission (“EEOC”) recently published a guidance piece that is useful for both employees and employers. One particular article of interest is a description of the legal rights for pregnant workers under federal law. If you’re an employer, it’s important to recognize that you may be required to provide further accommodations now than in the past to your pregnant employees.

The EEOC’s guidance article has three major directives. First, an employer cannot discriminate on the basis of a past or present pregnancy, an ability or intent to become pregnant, a medical condition related to pregnancy, or an abortion. Similarly, an employer cannot harass an employee based on these same considerations. Finally, and potentially most importantly, the employer appears to now be under a heightened expectation to make accommodations for a pregnant employee.

In providing guidance on the issue of a heightened right to accommodations, the EEOC delivered its message in the form of a hypothetical question and answer format as reproduced below:

Q: What if I am having difficulty doing my job because of pregnancy or a medical condition related to my pregnancy?

You may be able to get an accommodation from the employer that will allow you to do your regular job safely.”  Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home.

–           –           –

You don’t need to have a particular accommodation in mind before you ask for one, though you can ask for something specific.  However, you should know that the Americans with Disabilities Act (“ADA”) doesn’t require your employer to make changes that involve significant difficulty or expense.  Also, if more than one accommodation would work, the employer can choose which one to give you.

Q: What if I can’t work at all because of my pregnancy?

If you can’t work at all and you have no paid leave, you still may be entitled to unpaid leave as an accommodation.  You may also qualify for leave under the Family and Medical Leave Act.

Q: What should I do if I need an accommodation, light duty, or leave because of my pregnancy?

Start by telling a supervisor, HR manager, or other appropriate person that you need a change at work due to pregnancy.  You should inform your employer if the source of your problem at work is a pregnancy-related medical condition, because you might be able to get an accommodation under the ADA.  An employer cannot legally fire you, or refuse to hire or promote you, because you asked for an accommodation, or because you need one.  The employer also cannot charge you for the costs of an accommodation.  Because employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, it may be better to ask for an accommodation before any problems occur or become worse.

Under the ADA, your employer may ask you to submit a letter from your health care provider documenting that you have a pregnancy-related medical condition, and that you need an accommodation because of it.  Your health care provider might also be asked whether particular accommodations would meet your needs.

Q: What if there’s no way that I can do my regular job, even with an accommodation?

First, if you are being told by a health care provider that you can’t do your job safely and, for example, need light duty or can’t do your job because of a limitation or restriction, you may want to make sure that it’s really true and that your provider has considered the option of an accommodation that would allow you to do your job safely.

If you really can’t do your regular job safely, even with an accommodation, you might be able to get altered job duties under the Pregnancy Discrimination Act (“PDA”).  Depending on how your employer treats non-pregnant employees with similar limitations, the PDA might require your employer to reduce your workload, remove an essential function of your job, or temporarily assign you to a different position if the employer does those things for non-pregnant employees with limitations similar to yours.

The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a strategy on how to ensure you are compliant with both the regulations of the Americans with Disabilities Act and the Pregnancy Discrimination Act, call now to arrange for a free consultation at 215-947-6240 or visit us online.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

Top Tips For Avoiding Claims Of Employment Discrimination

For businesses in today’s job market, avoiding claims of employment discrimination is a constant struggle. Whether based on race, sex, national origin, disability, religion, color, or age, discrimination claims are taken very seriously in both state and federal court. While you, as an employer, may have done absolutely nothing wrong, a great majority of employment discrimination claims cost employers money and always cost them time.

However, there are ways to limit your exposure to allegations by discharged or disgruntled employees. Today, we list 5 policies to consider implementing intended to prevent and subsequently defend claims of employment discrimination. Without further ado:

  • Have a Written Policy Defining Grounds for Termination in the Workplace: What do I mean when I say a “termination policy”? Provide your employees, in writing, with a pamphlet or document which explains your expectations and lays out the procedure for terminating an employee. If you have a “one-strike” policy, make it clear. If you base terminations on the number of warnings or suspensions, be sure to publicize it [perhaps post it in the break room] and rely upon it to justify an immediate termination. The only caution I will provide is that if you’re going to put a termination policy in writing, you better follow that process you describe in all cases!
  • Document the File: This tip ties in directly with the first policy listed above. Documenting employee performance and any instances of misconduct can be a critical piece of evidence if later accused of discrimination. If you’ve had problems with an employee, it should be reflected in performance reviews, and any performance deficiencies should be documented immediately. Some employers even go so far as avoiding performance reviews altogether and instead only putting to paper instances of misconduct or under-performance. Here’s the key: don’t think you can rely solely on what you’ve said to employees verbally, put it in writing!
  • Have a Fair Hiring Policy: People often believe discrimination claims come only from current or former employees. Au contraire my friends! The majority of federal statutes dealing with discrimination in the workplace define employees as those currently employed, formerly employed, and also job applicants. If you have a policy or pattern of refusing/failing to hire applicants from a certain protected class (age, disability, religion, race, color, etc.), expect a call from the Equal Employment Opportunity Commission. Be careful about asking any questions which could be viewed as an attempt to determine if the applicant is in a protected class, and be conscientious of all job postings to ensure they don’t demonstrate bias in your hiring process.
  • When Firing, Don’t Do It Alone: This is critical. While terminating an employee is often a difficult, emotional experience, having a third party witness who can attest to your version of the events can go a long way in discrediting an employee’s later version of the events. If you have a HR manager, they should be the first person you consider. Alternatively, unless there are union or contractual provisions dictating otherwise, do not allow an employee to bring anyone else into the meeting.
  • Be Careful in Not Heaping Too Much Praise on an Employee: While company and employee morale are both critical components to any successful business, good luck explaining to a judge that a now terminated employee has been a problem for years when he or she has in her hands glowing performance evaluations for the same time period. Avoid the temptation to exaggerate your review of your employees and be very careful in how often you hand out that “exceeds expectation” cookie!

protect-your-business

Five tips alone cannot possibly cover the myriad of ways to prevent and defend against claims for discrimination in the workplace. One thing is certain, however: every company with more three employees should have an employment policy manual. Creating an effective and legally sufficient manual is no easy task, so employers would be wise to consider seeking the assistance of competent legal professionals in the drafting process.

The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a policy to better insulate yourself from potential discrimination lawsuits, call now to arrange for a free consultation at 215-947-6240 or visit us online.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.