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Amendments to the Illinois Equal Pay Act

Last week, Illinois Governor J.B. Pritzker signed into law several amendments to the Illinois Equal Pay Act that are certain to have wide-ranging impacts. Most significantly, Illinois will join the growing number of states that prohibit employers from asking about or considering a job applicant’s prior salary history when making hiring decisions. The amendments will also modify an exception to the equal pay requirement that, in certain circumstances, allows employers to pay different wages to employees who work substantially similar jobs, and the amendments will expand the types and amounts of damages that are available for equal pay violations.

The new laws take effect on September 29, 2019, leaving little time for employers to adjust. Here’s what you need to know.

Disclosure of Salary History

With Governor Pritzker’s seal of approval, Illinois now prohibits employers and employment agencies from:

  • Screening job applicants based on their current or prior wages or salary histories

  • Requesting or requiring salary history as a condition of being considered for employment, interviewed, or receiving an offer of employment

  • Requesting or requiring that an applicant disclose salary history as a condition of employment

Perhaps unsurprisingly, the prohibitions do not apply to applicants whose salaries are a matter of public record, or to current employees applying for an internal position. Additionally, an employer may still discuss salary expectations with applicants. And while it would not violate the law for an applicant to voluntarily disclose their salary history without prompting, if an applicant voluntarily discloses salary history, the employer still must not consider that information as a factor in determining whether to offer employment or in determining compensation.

Definition of “Factors Other Than Sex/Race”

The amendments also narrow the exceptions to the act, which allow employers in certain circumstances to pay different wages to employees who work similar jobs. Currently, employers are permitted to pay different wages to employees working similar jobs if the difference is based on either (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) any other factor other than sex or race. While the text of the fourth exemption is broad, the new amendments aim to narrow that exemption. The new amendments establish that a “factor other than sex” or a “factor other than race,” for purposes of demonstrating permissible salary disparities, (1) must not be based on a differential in compensation based on sex or another protected characteristic, and (2) must be job-related with respect to the position and consistent with a business necessity.

Damages

Finally, the new amendments will significantly expand the potential damages that are available to employees who establish that their employer violated the act. Damages for equal pay violations will now include compensatory damages if the employee demonstrates that the employer acted with malice or reckless indifference when they violated the act, and punitive damages and injunctive relief where appropriate. Additionally, if an employer violates the salary history disclosure provisions, the employee or applicant may also recover special damages up to $10,000. The statute of limitations under the new law will remain five years from the date of each violation.

© 2019 Schiff Hardin LLP

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About this Author

Gregory Dickinson Products Liability Attorney Schiff Hardin Law Firm
Associate

Greg Dickinson has worked on litigation matters in a wide range of practice areas. As a former judicial clerk, he has experience drafting memoranda and orders on motions to dismiss, remand, class certification, summary judgment, discovery disputes, and relief from judgment.

During law school, Greg worked as student attorney with the Federal Civil Rights Clinic, for which he was provisionally admitted to practice in federal court where he represented clients in civil rights cases. He drafted and filed all trial motions, responses, and pre-trial documents, and has experience...

312.258.5631
Lauren Novak Labor Law attorney, Schiff Hardin law firm, Chicago
Partner

Lauren S. Novak handles labor and employment law matters for clients in a diverse range of industries, including food and beverage, construction, gaming, manufacturing, outsourcing companies, educational institutions, and municipalities. Clients contact her to answer their day-to-day employment questions, review employee handbooks and employment policies, as well as to handle their more complex legal matters. Whether she is defending an unfair labor practice charge before the National Labor Relations Board, guiding employers through the union election process, or litigating a discrimination case, Lauren makes client communication a priority. Her primary goal is to resolve these matters in a fast and efficient way so that her clients can return their focus to their businesses.

Having previously served as in-house counsel for a labor union, Lauren has the unique ability to see both sides of each case. She uses this insight to successfully guide clients through employee contract negotiations, terminations, leave of absence issues, and settlement conferences. She also assists employers in responding to audit requests from union pension funds. When the time comes to litigate, Lauren calls upon her experience handling over a dozen labor arbitrations as well as her experience resolving discrimination, harassment, and retaliation claims to vigorously defend her clients.

Prior to joining Schiff Hardin, Lauren was an associate at a Midwest law firm representing public and private sector employers in labor and employment matters. Previously, she served as Associate General Counsel for the International Union of Operating Engineers, Local 150. She is currently an active Executive Committee member of the Chicago Bar Association Alliance for Women and the Community Outreach Committee for the Women’s Bar Association of Illinois. Lauren is also the founder of a networking group for Chicago-area female labor and employment attorneys.

Lauren  counsels employers in all aspects of labor and employment law including:

  • Reductions in force
  • Employee discipline issues
  • Labor relations
  • Policies and practices
  • Employment agreements
  • Settlement agreements
  • Severance matters
  • Collective bargaining
  • Federal and state employment discrimination matters
312-258-5540