Over the past few years, Congress has operated at a deadlock, preventing major new federal workplace legislation from being adopted. Although in its infancy, it seems increasingly unlikely that this congressional term will see a wave of new workplace legislation. Despite this congressional deadlock, federal workplace law continues to evolve as the courts and agencies interpret, and sometimes make, policy.
States and municipalities throughout the country have increasingly stepped in to regulate new areas of workplace law. Pennsylvania's legislature and governor have recently been unwilling or unable to come together to adopt significant new workplace laws. However, Pennsylvania's municipalities have not been immune from the trend toward increased local workplace regulation. Indeed, Philadelphia is a nationwide leader in adopting stricter workplace regulations. Pittsburgh and other Pennsylvania municipalities have attempted to follow suit, but have been limited by state law. In this fast-moving regulatory environment, employers who operate throughout the commonwealth may find it difficult to keep up with the multitude of local workplace laws. This article provides an overview of local workplace laws in Pennsylvania and previews what could be next given trends from other states.
As Pennsylvania's only city of the first class, Philadelphia has broad and unique authority to enact its own workplace regulations. For decades, Philadelphia's Fair Practices Ordinance has provided for increased workplace regulation. The ordinance mimics Title VII and the Pennsylvania Human Relations Act in that it prohibits discrimination against employees on the basis of enumerated characteristics, creates the Philadelphia Commission on Human Relations, and allows affected workers to bring civil causes of action after exhausting administrative remedies. Most provisions apply to all private employers in Philadelphia. In the 1980s, it banned discrimination on the basis of sexual orientation and it has continued to add other protected classes not explicitly set forth in Title VII or the Pennsylvania Human Relations Act, such as gender identity and victims of domestic/sexual violence.
Over the past few years, there has been a flurry of amendments to the Fair Practices Ordinance. In 2014, the ordinance was amended to expressly ban pregnancy discrimination and require employers to make reasonable workplace accommodations for female employees "affected by pregnancy," even if they are not disabled. Under federal laws, such as the Pregnancy Discrimination Act and the Americans with Disability Act, pregnancy, alone, does not constitute disability or require accommodation. In June 2016, an amendment to the ordinance banned most employers from procuring or using "credit information" in connection with employment decisions, such as hiring, discharge, tenure, promotion or discipline. In December 2016, another amendment banned Philadelphia employers from asking about an applicant's wage history at any stage in the hiring process and from relying on that salary history in determining compensation, unless the applicant "knowingly and willingly" discloses such information.
This May, Philadelphia Mayor Jim Kenney signed an amendment to the Fair Practices Ordinance that gives the commission authority to order businesses to cease business operations in the city for a specified period of time upon a finding that the business engaged in "severe or repeated violations without effective efforts to remediate the violations." Prior to its enactment, the commission's authorization to impose penalties was limited to injunctive or equitable relief to a discriminated against individual, payment of compensatory and punitive damages, and payment of reasonable attorney fees and hearing costs.
In addition to the Fair Practices Ordinance, Philadelphia also has a "Ban the Box" ordinance and paid sick leave requirements. Under the current "Ban the Box" ordinance, adopted in December 2015, employers are prohibited from asking any questions about criminal records on job applications and from asking at any time about arrests or criminal accusations that did not lead to conviction. Employers may only conduct a criminal background check after a "conditional offer of employment" has been made. With a few exceptions, the Ban the Box ordinance applies to employers with one or more employees in Philadelphia.
In February 2015, Philadelphia adopted the Promoting Healthy Families and Workplace Ordinance, which requires employers with 10 or more employees to provide an employee with up to one hour of paid sick time for every 40 hours worked, approximately five days a year. Exempt employees under the Fair Labor Standards Act accrue sick time based upon their normal work week, or a 40 hour work week, whichever is less. Unless the employer allows more, employees can accrue a maximum of 40 hours of sick time in a calendar year. Employers with fewer than 10 employees will be required to provide unpaid sick leave under the same terms.
In July 2016, Philadelphia's Wage Theft Ordinance went into effect, providing covered employees and authorized organizations with another avenue to pursue wage claims. Under the Wage Theft Ordinance, an employee or labor organization may file a complaint alleging wage theft with the city's newly created wage theft coordinator, who may then investigate the allegations. In addition to this administrative process, the ordinance creates a private cause of action for covered employees or authorized organizations and a complainant may file a court claim without exhausting the administrative process. A complainant may recover unpaid wages, costs, attorney fees and penalties.
Unlike Philadelphia, which is uniquely situated as the only city of the first class, other municipalities' authority to enact workplace regulation is far more limited due to restrictions set forth in Pennsylvania's Home Rule Charter Law and the various municipal codes. For example, the Home Rule Charter Law provides that "a municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, ... except as expressly provided by statutes which are applicable in every part of this commonwealth or which are applicable to all municipalities or to a class or classes of municipalities."
Despite these restrictions, Pittsburgh has attempted to adopt its own workplace regulations, although not to the same extent as Philadelphia. In August 2015, Pittsburgh adopted the Paid Sick Days Act, which, as enacted, required employers to provide employees a minimum of one hour of paid sick leave for every thirty-five hours they work. However, in May of this year, the Commonwealth Court upheld the Allegheny Court of Common Pleas' decision striking down the Paid Sick Days Act. The Commonwealth Court reasoned that Pittsburgh did not have the authority to adopt this ordinance because, under the Home Rule Charter Law, Pittsburgh is not authorized to impose the affirmative duty of offering paid sick leave on employers. Pittsburgh has appealed this matter to the Pennsylvania Supreme Court. This case could have wide implications for Pennsylvania municipalities' ability to adopt paid sick leave ordinances.
Although it has been stymied in efforts to impose paid sick leave, Pittsburgh and other Pennsylvania municipalities have successfully adopted ordinances prohibiting workplace discrimination and added protected classes beyond those in the state and federal discrimination laws. In Hartman v. Allentown, 880 A.2d 737 (Pa. Commw. Ct. 2005), the Commonwealth Court held that the Home Rule Charter Law and the Pennsylvania Human Relations Act do not prevent municipalities from enacting their own ordinances prohibiting discrimination on the basis of sexual orientation and gender identity. Scores of Pennsylvania municipalities, including the city of Pittsburgh, Allegheny County, Allentown, Abington, Bethlehem, Cheltenham, Easton, Erie, Harrisburg, Haverford, Lower Merion, Reading, Scranton and York, have adopted ordinances prohibiting this type of discrimination by private employers.
Furthermore, Pennsylvania municipalities have adopted Ban the Box ordinances, which prohibit the municipality from requesting criminal information on their own job applications, but do not apply to private employers located within those municipalities. For example, the city of Lancaster passed a Ban the Box ordinance for city workers in September 2014, and Allentown passed a similar ordinance in April 2015.
As a result of campaigns like the Fight for $15, municipalities throughout the country, including Seattle and Cook County, Illinois, have been adopting their own minimum wage laws. In 2006, Pennsylvania's Minimum Wage Act was amended to explicitly "pre-empt and supersede any local ordinance or rule concerning the subject matter of this act," 43 P.S. Section 333.114a. Therefore, we will not see any enforceable minimum wage ordinances in Pennsylvania until Harrisburg acts again. Indeed, there has been a backlash against the proliferation of local employment regulations. Increasingly, state legislatures are proposing and passing pre-emption laws that further constrain the ability of municipalities to regulate the workplace. Pennsylvania's Republican legislators have introduced bills that would preempt many of Philadelphia's ordinances described above, including a bill from January of this year, which would pre-empt Philadelphia's paid leave ordinance. This tug and pull between state and local regulation of employment should continue and employers must be aware as new workplace regulations arise.
