Constitutionality of Legislative Restrictions on Inquiries into Past Compensation History

Our friend and former colleague Tim Holly has published a thoughtful piece on 19 Del. C. § 709B, which (along with similar restrictions passed and under consideration in other states) places restrictions on an employer's right to inquire about a prospective hire's past compensation history. In particular, Tim analyzes recent case law and considers whether such restrictions are constitutional:

Delaware’s General Assembly has demonstrated a propensity to pass legislation regarding hot topics of the day, sometimes seeming to place the value of being first or “progressive” above the value of careful deliberation, resulting in law that might not survive judicial scrutiny. 

That seems to be true of 19 Del. C. § 709B (the “Delaware Compensation History Law”), which might be unconstitutional due to a violation of First Amendment free speech rights of businesses, as perhaps suggested in a ruling dated April 30, 2018, regarding a Philadelphia ordinance that is similar to the Delaware Compensation History Law.  See Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, No. 17-1548, 2018 LEXIS 72758 (E.D. Pa. April 30, 2018) (the “Philadelphia Wage Case”).

The Delaware Compensation History Law applies to an employer or an employer’s agent (thus creating individual liability).  It apparently applies to employers having even one employee, though not expressly stated.  “Compensation” includes more than just wages, probably including vacation days, bonuses, health insurance, etc.  The law prohibits the mere “seeking” (which includes “requesting”) of compensation history; and it is a strict liability law, which means reasons for asking prohibited questions do not matter.

The piece may be found in its entirety here: "Delaware: The First State . . . to Pass a Law Unconstitutionally Infringing Free Speech of Employers?" An edited version was also published in Delaware Business Times.