THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY B. BOYLE, K. BOYLE, BRADFORD, BRENNAN, V. BROWN, BROWNLEE, BURNS, BUXTON, CALTAGIRONE, CARROLL, D. COSTA, DALEY, DAVIS, DeLUCA, DERMODY, DONATUCCI, D. EVANS, FABRIZIO, FRANKEL, GEORGE, GERGELY, GOODMAN, HALUSKA, HANNA, HARHAI, HORNAMAN, JOSEPHS, KAVULICH, W. KELLER, KORTZ, KULA, LONGIETTI, MAHONEY, MANN, MARKOSEK, McGEEHAN, MUNDY, MURPHY, M. O'BRIEN, PASHINSKI, PAYTON, QUINN, SANTONI, STURLA AND YOUNGBLOOD, JANUARY 31, 2012

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JANUARY 31, 2012  

AN ACT

Prohibiting discrimination against persons based on unemployment

status; providing for powers and duties of the Department of

Labor and Industry; and imposing penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Pennsylvania

Fair Employment Opportunity Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Department."  The Department of Labor and Industry of the

Commonwealth.

"Employer."  An employer as defined in the act of January 17,

1968 (P.L.11, No.5), known as The Minimum Wage Act of 1968, or

any person acting, directly or indirectly, in the interest of

any employer in relation to an employee.

"Employment agency."  An employment agency licensed under the

act of July 31, 1941 (P.L.616, No.261), known as the Employment

Agency Law, or any person regularly undertaking with or without

compensation to procure employees for an employer or to procure

for individuals opportunities to work as employees for an

employer and includes an agent of such a person, and any person

who maintains an Internet website or print medium that publishes

advertisements or announcements of job openings for employees.

"Unemployment status."  An individual's present or past

unemployment regardless of the length of time the individual was

unemployed.

Section 3.  Prohibited acts.

(a)  Employers.--It shall be unlawful for an employer to:

(1)  refuse to consider for employment or refuse to hire

an individual because of the individual's unemployment

status; or

(2)  publish or circulate, in any medium, an

advertisement or announcement for a job vacancy that includes

any provision stating that an individual's unemployment

status disqualifies the individual for a job or any provision

stating that an employer will not consider an individual for

employment based on the individual's unemployment status.

(b)  Employment agencies.--It shall be unlawful for an

employment agency to:

(1)  refuse to consider or refer an individual for

employment based on the individual's unemployment status;

(2)  limit, segregate or classify individuals in any

manner that may limit their access to information about jobs

or referral for consideration of jobs because of their

unemployment status; or

(3)  publish or circulate, in any medium, an

advertisement or announcement for a job vacancy that includes

any provision stating that an individual's unemployment

status disqualifies the individual for a job or any provision

stating that an employer will not consider an individual for

employment based on that individual's unemployment status.

(c)  Employment assessment.--Notwithstanding any other

provision of this section, this act shall not preclude:

(1)  an employer from circulating an announcement for a

job vacancy that limits hiring to the employer's existing

work force; or

(2)  an employer or employment agency from considering an

individual's employment history or factual and objective

reasons underlying an individual's unemployment status in

assessing an individual's ability to perform the vacant job.

An employer or employment agency may assess whether an

individual's employment in a similar or related job for a

period of time reasonably proximate to the consideration of

the individual for employment is consistent with industry

practice and necessary to successful performance of the

vacant job.

Section 4.  Enforcement.

(a)  Duties of department.--The department shall enforce and

administer the provisions of this act and may promulgate

regulations necessary to implement this act.

(b)  Investigations.--The department shall investigate

credible complaints made to the department alleging violations

of this act.

(1)  For the purposes of investigating complaints and

ascertaining whether an employer or employment agency is in

compliance with this act and regulations issued under this

act, the department shall have the authority to:

(i)  enter and inspect a place of business to examine

and copy any records of an employer or employment agency

that the department deems necessary for the investigation

of a violation of this act, or to require production of

records that are regularly stored outside this

Commonwealth within a reasonable time, as determined by

the department, following written notice from the

department;

(ii)  require production of records by an employer,

employment agency or media source that has circulated or

published the job announcement or advertisement;

(iii)  require statements in writing; and

(iv)  interrogate individuals.

(2)  The department shall provide a written response to

the complainant at the conclusion of the investigation

stating the department's determination related to whether a

violation of this act has occurred.

(c)  Subpoenas.--The department shall have investigatory

subpoena power. Application may be made to the Commonwealth

Court to enforce a subpoena. However, nothing in this section

may be construed to excuse a person from producing documents and

records as requested by the department under any other provision

of law.

Section 5.  Penalties.

(a)  Fines.--The department shall levy administrative

penalties on an employer or employment agency that violates this

act or any regulation issued under this act.

(1)  For a first offense, the fine shall be not less than

$1,500 nor more than $3,000 for each violation of this act.

(2)  For a second or subsequent offense, the fine shall

be not less than $3,000 nor more than $6,000 for each

violation of this act.

(3)  In the case of advertisements or announcements that

are in violation of this act, each medium, publication or

circulation source of an advertisement or announcement shall

constitute a separate violation of this act.

(b)  Corrective action.--The department may order an employer

or employment agency to take any action that the department

deems necessary to correct a violation of this act.

(c)  Procedure.--This section is subject to 2 Pa.C.S. Chs. 5

Subch. A (relating to practice and procedure of Commonwealth

agencies) and 7 Subch. A (relating to judicial review of

Commonwealth agency action).

Section 6.  Retaliation prohibited.

(a)  Unlawful acts.--It shall be unlawful for an employer or

employment agency to:

(1)  interfere with, restrain or deny the exercise of any

rights provided under this act; or

(2)  discharge, discriminate or take adverse action

against a person in retaliation for exercising rights

protected under this act. Rights protected under this act

include:

(i)  making a complaint to or informing the

department or any person about an employer's violation of

this act;

(ii)  participating in investigations or proceedings;

and

(iii)  informing any person of his or her potential

rights and assisting the person in asserting those

rights.

(b)  Civil actions.--An individual who in good faith alleges

a violation of this section may bring a civil action in a court

of competent jurisdiction against an employer or employment

agency within two years from the date upon which the violation

occurs. Taking adverse action against an individual within 90

days of the person's exercise of rights protected under this act

shall raise a rebuttable presumption of having done so in

retaliation for the exercise of those rights.

Section 7.  Effective date.

This act shall take effect immediately.