Employers today are so focused on complying with hundreds of federal and state employment laws that they often overlook local ordinances, such as those found in the city of Philadelphia. While many of Philadelphia’s employment ordinances mirror federal and state laws and regulations, there are many that do not. Local and national companies that do business in Philadelphia need to keep abreast of these issues.
On April 3, Mayor Michael A. Nutter vetoed a bill that would require most large employers in the city of Philadelphia to provide their employees with paid sick leave. This is the second time Nutter has vetoed a bill requiring paid sick leave. His reasoning for these vetoes is that the imposition of paid sick leave on Philadelphia businesses alone — and not statewide or on a national basis — would create too great a burden on Philadelphia’s local businesses, would render Philadelphia uncompetitive in the global marketplace, and would cost Philadelphians jobs.
While paid family leave is one ordinance struck down by Nutter, there is a lesser-known paid leave law that he was unable to strike down. Philadelphia’s 21st Century Minimum Wage and Benefits Ordinance, enacted July 1, 2012, and passed by a 15-2 vote of the City Council, requires certain employers to provide their employees with sick leave. This ordinance applies to (1) for-profit service contractors and subcontractors with annual gross receipts in excess of $10,000 over a 12-month period; (2) nonprofit service contractors and subcontractors on contracts with the city in excess of $100,000 over a 12-month period; (3) recipients or subcontractors of city leases, concessions or franchises that employ more than 25 employees; (4) city financial aid recipients; and (5) employees of the city of Philadelphia (including all agencies and departments). Covered employers with at least 11 employees are required to provide at least 56 hours of paid sick time in a calendar year. Covered employers with at least five, but fewer than 11, employees are required to provide at least 32 hours of paid sick time in a calendar year. Any employer that fails to abide by this ordinance may be required to pay damages equal to the amount of unpaid sick time, plus actual damages suffered by the employee as a result of the violation, and reasonable attorney fees.
As of January 5, 2009, employers in Philadelphia are also required to provide unpaid leave to victims of domestic violence or their family members. This requires Philadelphia employers with more than 50 employees to provide up to eight weeks of unpaid leave for employees who have been victims of domestic or sexual violence. The ordinance also requires employers to extend such leave to close family members of victims of domestic or sexual violence, including same-sex partners.
Aside from paid leave laws, Philadelphia has many other employment ordinances that Philadelphia businesses may fail to consider, but are legally required to incorporate into their written policies. For example, many employers are unaware of Philadelphia’s “Fair Criminal Record Screening Standards,” which took effect July 12, 2011. Philadelphia was one of the first cities to pass this “ban the box” ordinance for private employers. Unlike most other jurisdictions throughout the country, employers in Philadelphia are required to remove questions about criminal convictions from their job applications. Employers that maintained uniform employment applications throughout the United States were required to change their applications for their employees located in Philadelphia. Any public or private employer with 10 or more employees within Philadelphia was affected. Employers are prohibited from requiring applicants to disclose their criminal history until after an employer has accepted the application and conducted the first interview either telephonically or in person.
Another law that frequently confounds employers is Philadelphia’s Fair Practices Ordinance. While the Fair Practices Ordinance prohibits discrimination on many bases similar to federal and state laws, there are several wrinkles that are not found in other jurisdictions. For example, on June 21, 2011, Philadelphia amended the Fair Practices Ordinance to expand the bases upon which discrimination is prohibited, prohibiting discrimination on the basis of familial status, domestic or sexual violence victim status, and genetic information. Many national companies with limited operations in Philadelphia are unaware of these laws. Often, they are caught by surprise when employees raise these issues or bring complaints to the Philadelphia Commission on Human Relations.
More recently, on April 25, the City Council passed a unique bill by a vote of 14-3 to amend the Philadelphia Code including the Fair Practices Ordinance to provide for equality of treatment for individuals regardless of gender identity or sexual orientation, including by further providing for the definition of “life partnership” and “life partner.” This bill provides a tax credit incentive to employers that offer employee health plans including same-sex partners. It also requires employers to allow employees to dress consistently in accordance with their gender identity.
For those employers that are frustrated with navigating these local laws and considering voluntarily leaving Philadelphia, the city has also passed an ordinance regulating their departure. This scenario is governed by Philadelphia Code Ch. 9-1500 (Mini-WARN Act), which provides requirements in addition to those required by the federal Worker Adjustment and Retraining Notification (WARN) Act. Eligible employers exiting Philadelphia must provide 60 days’ notice to the city, provide an impact study, and detail the employer’s intentions to move operations elsewhere. Failure to provide notice to the city may subject employers to potential injunctive relief and damages.
Despite Nutter’s recent expressions of concern about burdening local businesses with mandatory paid leave, the City Council continues to propose additional employment-related ordinances. On February 21, Councilman William Greenlee proposed to amend Title 9 of the Philadelphia Code to “add a new chapter, protecting social networking privacy, by prohibiting an employer from requesting or requiring access, in any manner, to an employee’s or prospective employee’s account or profile on a social networking site and providing for enforcement and penalties.” While these laws are very popular with legislators, in reality, very few employers are actually requiring employees to provide employers with their social media passwords. Nevertheless, several states have already passed similar laws and such bills are currently pending in dozens of other states, including Pennsylvania as well as in Congress. These bills, however, are not uniform and it is unclear whether the Philadelphia proposal will preclude requesting passwords during internal and/or external investigations of workplace harassment.
Employers who fail to consider local employment ordinances or fail to update their policies and procedures will certainly find themselves answering to local agencies, or, worse, in court.
Alexander Nemiroff is a shareholder in the Philadelphia office of Ogletree Deakins, an international labor and employment law firm representing management. Nemiroff regularly advises clients and litigates in the areas of employment discrimination, workplace technology law, social media, noncompetition and other related matters. Follow Nemiroff on Twitter @Alex_Nemiroff.