Tuesday
Jan312017

January 31, 2017 - Philadelphia Prohibits Employers From Asking Job Candidates For Salary History

In early December, Philadelphia City Council passed a “wage equity” bill prohibiting Philadelphia employers from asking job candidates about their salary history. Mayor Kenney signed the bill today. As a result, it is scheduled to take effect May 23, 2017.

As with other provisions of Philadelphia’s Fair Practices Ordinance, coverage is broad – the bill applies to employers with one or more employees in the City of Philadelphia and generally prohibits covered employers from seeking information about a prospective employee’s wage history. Covered employers may not:

  • inquire about wage history;
  • require disclosure of wage history; or
  • condition employment or consideration for employment on disclosure of wage history

The term “wages” is defined to include all earnings of an employee (including commissions and fringe benefits).

The bill also prohibits covered employers from relying on wage history information to determine the wage offered “at any stage in the employment process, including the negotiation or drafting of any employment contract,” unless the applicant “knowingly and willingly” discloses such information. 

Finally, employers may not retaliate against a prospective employee for failing to comply with an inquiry about their wage history.

The one exception to the law is if an employer is acting “pursuant to any federal, state or local law that specifically authorizes the disclosure or verification of wage history for employment purposes.”

In light of the new law, employers who use standard paper or electronic applications that include questions about wage history will need to revise those to comply with these restrictions. Moreover, because these restrictions apply during all phases of the hiring process, employers will need to educate interviewers and others about the new law. Perhaps most challenging, employers who have relied on workers’ salary histories in setting starting wages for some or all positions will need to rethink their approach.

Wednesday
Nov232016

November 23, 2016 - Texas Federal Court Blocks New Overtime Regulations

As we reported to you earlier this year, the United States Department of Labor issued new overtime regulations which were scheduled to take effect on December 1 of this year. The new regulations would have substantially increased the minimum salary required to classify employees as exempt from overtime. In September, 23 states filed suit in the Eastern District of Texas, arguing the regulations were unlawful and seeking an injunction to stop them going into effect. Late yesterday, we learned that suit was successful (at least for the moment).

A federal district court entered a nationwide preliminary injunction preventing the Department from implementing and enforcing the new regulations. For any of you who may be curious about the court’s reasoning, very briefly, it was persuaded by the states’ argument that the new regulations effectively (and unlawfully) displace the statutorily-mandated duties tests with a pure salary test.

Although the injunction issued yesterday is not permanent, the pending change in administration may affect how the Department chooses to proceed in the case going forward. We will keep you updated on any further developments but, for now, employers do not need to comply with the new regulations next week. 

Wednesday
Mar302016

March 31, 2016 - Are You Ready For The New FLSA Regulations?

Back in July 2015, we told you about the proposed new Department of Labor regulations which would dramatically affect employee eligibility for overtime under the Fair Labor Standards Act. After reviewing more than 250,000 comments on the proposed regulations, the DOL has now sent its changes to the Office of Management and Budget, which is expected to complete its review process fairly quickly. Experts in the area anticipate that the final regulations may be issued in early July – possibly even sooner. Once issued, the new regulations would take effect in 60 days.

Although a bill was recently introduced in Congress seeking to nullify the regulations, at this point, the bill does not seem likely to pass both houses (or to survive a presidential veto, even if it were to pass). And while there has been some speculation about how long the new regulations might survive following November’s elections, employers cannot just ignore them in hopes of their eventual repeal. Nor can employers wait for the final regulations to be issued before starting to take action. Although it’s not possible to complete the compliance process before the final regulations are issued – since some elements of the proposed regulations may be changed in the final version – employers who wait until the final regulations are issued to begin the process are likely to find themselves struggling to do all that needs to be done in just 60 days. Accordingly, while the regulatory process is wrapping up, employers who have not already done so should:

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Thursday
Dec172015

Philadelphia’s Fair Criminal Records Screening Standards or “Ban the Box” ordinance

Philadelphia’s Fair Criminal Records Screening Standards or “Ban the Box” ordinance, which restricts employment-related inquiries into criminal history, was amended this week. The amendment, which is to take effect March 15, 2016 (90 days from December 15, 2015) greatly expands the impact of the ordinance.

First, the amended ordinance will restrict even further an employer’s ability to make inquiries into criminal convictions during the application/interview process. Previously, employers were prohibited from asking applicants about criminal convictions on an application or otherwise before an initial interview. Under the amended ordinance, employers will be prohibited from asking applicants about criminal convictions at any time during the “application process,” which is defined to begin with an applicant’s inquiry about a position and to end with a conditional offer of employment. The amended ordinance defines “conditional offer of employment” as follows:

An offer by an employer to hire an applicant, which may be withdrawn only if the employer subsequently determines that the applicant (i) has a conviction record which, based on an individualized assessment . . . would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or (ii) does not meet other legal or physical requirements of the job.

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Wednesday
Mar042015

March 4, 2015 - Philadelphia Enacts Sick Leave Ordinance

 

Last week, Mayor Nutter signed into law Philadelphia’s new “Promoting Healthy Families and Workplaces” ordinance. The ordinance, which will take effect May 13, 2015, has components which affect all employers with Philadelphia workers.

First, the ordinance requires private employers with 10 or more employees to offer paid sick leave and employers with fewer than 10 employees to offer unpaid sick leave. An employer meets the threshold for paid leave if it has 10 or more employees for at least forty (40) weeks in a calendar year. Notably, all employees – full-time, part-time and temporary – count for this purpose. Also covered by the ordinance are “chain establishments” regardless of the number of employees. A “chain establishment” is one doing business under the same trade name used by 15 or more establishments, regardless of whether all of those establishments are located in Philadelphia and regardless of the ownership of each establishment.

“Employee,” in turn, is defined to mean an individual performing work in the City of Philadelphia for at least 40 hours a year. Specifically excluded from the definition of “employee” are “independent contractors, seasonal workers, adjunct professors, employees hired for a term of less than six months, interns, pool employees, State and Federal employees, and employees covered by a bona fide collective bargaining agreement.” Seasonal workers, interns and pool employees are all narrowly defined terms under the ordinance.

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