Comcast warns of costly legal battle if Kenney doesn't veto wage discrimination bill

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Mayor Kenney is being urged by Comcast to veto a bill that would bar employers from asking job applicants their salary history.

Comcast has urged Mayor Kenney to veto a bill that would bar employers from asking job applicants for their salary histories or risk a costly legal challenge.

The legislation, meant to combat wage discrimination, violates the First Amendment, an attorney hired by Comcast argues in a legal memo sent to the city and obtained by the Inquirer.

"While my client and others in the business community who are considering a legal challenge do not want to appear confrontational in any way, it is important to note that a successful challenge ... could make the City liable for a substantial award of attorney's fees," attorney Miguel Estrada wrote on behalf of Comcast.

David L. Cohen, a senior Comcast vice president, said the memo was drafted with the support of Greater Philadelphia Chamber of Commerce CEO Rob Wonderling. Both said the bill stoked growing frustrations in the business community about increased regulations out of City Hall.

The bill was passed last month in a 16-0 City Council vote and has been waiting for Kenney's signature since. On the day it passed, Kenney said he planned to sign it. His spokesman, Mike Dunn, said Monday he still supports the measure but has asked the city's law department to review the legal concerns.

The legislation, the first of its kind passed by a U.S. city, would make it illegal for employers to ask an applicant for their salary history or to retaliate against a prospective employee for failing to answer such a question.

Proponents of wage-gap legislation stress that women make 79 cents for every dollar made by men. They say the inequality starts when women and minorities are given lower salaries at their first jobs and is perpetuated when they are forced to state their salary histories when applying for new ones.

City Councilman Bill Greenlee modeled the legislation after a similar bill passed by the Massachusetts legislature in August.

He said he is open to hearing concerns - and plans to meet with representatives from the Chamber of Commerce on Tuesday - but not to withdrawing or amending the bill.

"I'm not changing anything," he said. "And I've already told them that."

Among many challenges raised in the 25-page memo, Estrada said the law would violate employers' First Amendment rights to ask about wage history. He said that to justify such a restriction, the city must prove it would advance its goal of reducing wage discrimination without restricting more speech than necessary.

That burden, he said, hasn't been met. In fact, he argues there is no evidence that asking for salary history perpetuates wage discrimination. Disparities could be due to legitimate factors, including "taking a 10-year absence from the workforce to 'see the world,' working fewer hours, or - to state the obvious - being a worse employee,' " he said

Putting legalese to the side, Cohen said the policy doesn't make sense in "corporate America."

For example, he said, Comcast has a pay scale for a technicians and call center workers and wouldn't ask an applicant for those jobs about their previous pay. There is no such scale at the senior executive level, he said.

"When I was hired, how was [Comcast CEO] Brian Roberts going to figure out what to pay me?" Cohen said, using himself as an example. "It's not like my job existed. It's not like there is a salary scale or a standard compensation package for an executive vice president with that portfolio of responsibilities. A critical data point in that negotiation was what was I making."

Beyond the legal and practical concerns, the legislation seems to have hit a nerve with Cohen and Wonderling.

"It sends a signal to folks: Gee, there's a hassle factor now in bringing my business to Philadelphia," Wonderling said.

He and Cohen both called the bill the proverbial "straw that broke the camel's back" for an industry frustrated with increased taxes and regulations.

Greenlee called the response "silly."

"Is it breaking anybody's back to push for people, all people, to be paid equitably?" he said. "That's what we're talking about here. And we're talking one question. One question. Not allowing them to ask, 'What did you make before?' "

He said the legal challenge caught him by surprise because he heard almost no concerns when the bill was introduced in September. He said Wonderling submitted testimony in opposition but did not testify at the hearing in November. A Comcast representative spoke to him about the bill once but never put any concerns on the record, Greenlee said.

"Comcast seems to be the only one that has said anything, obviously after the fact," Greenlee said. "... Quite frankly, I think this is being orchestrated by Comcast."

Wonderling and Cohen both said they have heard from many others in the business community who share their concerns.

Their legal challenges, however, appear to be new.

Daniel Smith, legislative director for Massachusetts Sen. Patricia Jehlen, one of that bill's sponsors, said no one opposing it ever raised a First Amendment claim.

He said that the effort was ultimately backed by the business community, including Boston's chamber of commerce, but that his office first started building support with individual businesses a few years ago.

"There wasn't that much surprise in the business community because they had been hearing about it for a while," he said. "By the time it passed, it didn't seem as novel as it actually was."

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