A guest column from a Pennsylvania attorney specializing in labor law
Guest Columnist Emily H. Edmunds is Special Counsel with Saul Ewing LLP, providing employer counseling regarding the employment relationship—from hiring to firing—and defending employers in employment litigation before the EEOC, PHRC, and federal and state courts. She can be reached at 717-257-7576 or [email protected]
Pay equity continues to be a hot issue in Pennsylvania and across the U.S. Although Pennsylvania has had an Equal Pay Law since the 1950s, there has not been much-related litigation. The statute applies equally to males and females and generally prohibits discrimination based on paying employees of one gender more than employees of the opposite gender for equal work that requires equal skill, effort, responsibility, and that is performed under similar working conditions, except where payment is based on a seniority system, merit system, a system that measures production, the level of education, training, or experience, or a differential other than gender.
A bill currently pending in the legislature, Senate Bill 241, seeks to amend the Equal Pay Law to prohibit an employer from retaliating against an employee for making a complaint under the Equal Pay Law or because an employee inquires about or discusses the wages of him/herself or another employee.
SB 241 also would forbid an employer from prohibiting employee disclosure of the amount of his or her wages and would prohibit an employer from requiring an employee to sign a document waiving the employee’s right to disclose the amount of his or her wages. Interestingly, this protected discussion of wages already exists for employees in both unionized and non-unionized workforces under the federal National Labor Relations Act as well as for employees of federal government contractors subject to Executive Order 11246 (which also includes a posting provision). Finally, SB 241 provides that it preempts and supersedes any local ordinance concerning the subject matter of the Equal Pay Law.
The strong suspicion is that the inclusion of the preemption provision is a back-door way of getting around a recently-signed Philadelphia ordinance that prohibits employers from asking job applicants about their prior salary or requiring disclosure of salary history as a condition of employment. That ordinance is set to go into effect on May 23, 2017. If SB 241 becomes law, the effect of the preemption provision could be to invalidate Philadelphia’s ordinance in some circumstances under an argument that the Pennsylvania Equal Pay Law supersedes the Philadelphia ordinance.
With pay equity issues continuing to dominate the news and policy decisions, it is a good time for employers to take a look at their payroll practices by performing a compensation audit designed to analyze whether there are pay disparities between male and female employees. If you or anyone in your organization would like to discuss compensation audits, we can help you navigate the analysis.