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PRINTER'S NO. 1392
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1169
Session of
2017
INTRODUCED BY DAWKINS, BOYLE, SCHLOSSBERG, SOLOMON, V. BROWN,
BULLOCK, McNEILL AND FRANKEL, APRIL 12, 2017
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, APRIL 12, 2017
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 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.
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"Employment agency." 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 a
person who maintains a publicly accessible 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
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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 may 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
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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 relating 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.
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(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
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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 in 60 days.
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