Legal scholars now believe recently enacted California laws that prohibit employers from inquiring about an employment candidate’s prior salary history may be unconstitutional.

This April, the United States District Court for the Eastern District of Pennsylvania in Chamber of Commerce for Greater Philadelphia v. City of Philadelphia held that Philadelphia Ordinances that made it illegal for employers inquire of prospective employees about their wage history or to rely on wage history “at any stage in the employment process” to determine an employee’s salary, violated the First Amendment’s “free speech” clause.

Massachusetts and California have similar statutes to the Philadelphia Ordinance as do some municipalities, such as San Francisco and New York City. Based on the opinion in the Chamber of Commerce for Greater Philadelphia v. City of Philadelphia case, employers in these jurisdictions may now have a complete defense if they are sued for having asked prohibited past salary history questions or have used such information in setting salaries. However, if you are an employer, before you even ask the past salary history question, check with your legal counsel. You simply do not want to be the California employer that becomes the California test case.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.