Loyola University Chicago School of Law, JD 2021
On July 31, 2019, Illinois Governor J.B. Pritzker signed House Bill 834 into law amending the Illinois Equal Pay Act of 2003. The law, which will go into effect on September 29, 2019, makes it unlawful for employers to ask applicants about their salary history. Governor Pritzker signed the Bill with the intention of eliminating the wage gap that exists between men and women in Illinois. In 2019, half of the Illinois workforce is women, but women working in Illinois earn 79 percent of what men earn. The wage gap is exacerbated for women of color. According to The American Association of University Women, Black women in the United States are paid 61 cents for every dollar paid to a white man. As a result of the amended law, Illinois employers will need to act quickly to make changes to their hiring procedures.
Salary history ban
According to the amended law, Illinois employers are prohibited from screening job applicants based on their wage or salary history, requiring that an applicant’s prior wages satisfy minimum or maximum criteria, and from requiring a candidate’s prior wages or salary as a condition for an interview. The salary ban also prohibits Illinois employers from seeking an applicant’s salary history from the applicant’s current or former employers, unless the individual’s salary history is a matter of public record. The salary history ban does not apply if the applicant is a current employee and applying for a position with the current employer.
However, the amended law provides a few situations in which salary may be discussed with an applicant:
- Employers can provide compensation or benefits information relating to the position offered to an applicant during the interview process.
- Applicants can discuss their salary and benefit expectations with employers.
- Applicants can voluntarily disclose their current or prior salary history, so long as the employer does not consider that information when making employment or compensation decisions.
Under the prior version of the Illinois Equal Pay Act, compensation discrepancies could be accounted for by a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any other factor other than sex or a factor that would constitute unlawful discrimination under the Illinois Human Rights Act. The amended law requires that the fourth factor is not based on or derived from a differential in compensation based on sex or another protected characteristic; is related to the job and consistent with business necessity; and accounts for the entire differential.
Previously, the Illinois Equal Pay Act stated that employers must pay equally for work that requires equal skill, effort, and responsibility. The amended law requires that employers pay equally for work that requires substantially similar skill, effort, and responsibility.
In the past, an employee who suffered from a violation of the Illinois Equal Pay Act of 2003 was entitled to lost wages and attorney’s costs and fees. Beginning on September 29, 2019, if an employer violates these new amendments, an employee may bring a civil action within five years and seek to recover “any damages incurred,” “special damages” up to $10,000, injunctive relief, costs and attorney’s fees. And, employers who violate the law are also subject to civil penalties of up to $5,000 “for each violation for each employee affected.”
Protection and pay transparency
The Anti-Retaliation Provision of the Illinois Equal Pay Act was amended in order to expand retaliation protections. Previously, the Illinois Equal Pay Act prohibited retaliation in response to filing a charge related to the Act, giving information in connection with any inquiry relating to any right under the Act, or testifying in a proceeding under the Act.
Beginning September 29, 2019, the amended Act will protect individuals who fail to comply with any wage or salary history inquiry. The Act also protects an employee’s right to discuss compensation with colleagues and prohibits employers from contractually restricting this right. However, employers may prohibit human resources employees, supervisors, or any other employee whose job responsibilities require or allow access to another employee’s compensation from discussing that information.
Compliance for Illinois employers
As September 29, 2019 is approaching quickly, Illinois employers should review their job applications, and other hiring materials, and make necessary changes in order to comply with the new law. Illinois employers should also make an effort to educate their employees, especially human resources professionals, about the new law to ensure that those involved in the hiring process comply accordingly.