Amendments to Illinois’ Equal Pay Act (EPA) go into effect on September 29, 2019, leaving employers little time to adjust their hiring practices.
No Inquiries into Salary History. Under the amended EPA, employers and employment agencies may not:
- Screen applicants based on their current or prior wage or salary history, including benefits or other compensation;
- Request or require an applicant’s salary history as a condition of being considered for employment; or
- Request or require that an applicant disclose his or her salary history as a condition of employment.
Employers also are prohibited from seeking an applicant’s salary history from an applicant’s current or former employer.
Employers are not prohibited however, from (i) providing information about the compensation or benefits of a position, or (ii) discussing an applicant’s expectations about compensation or benefits. An employer also would not violate the EPA if a job applicant voluntarily discloses his or her current or prior compensation, provided the employer does not consider the voluntary disclosure in deciding whether to offer the applicant employment or in setting compensation.
An employer found to have violated the law may be subject to:
- Special damages not to exceed $10,000;
- Injunctive relief;
- Costs and reasonable attorney’s fees; and
- Civil penalty not to exceed $5,000 for each violation for each employee affected.
In order to avoid fines and lawsuits, companies recruiting in Illinois should remove any questions about an applicant’s previous pay or benefits from their job applications and any related documents, both on-line or in hard copy.
No Restrictions on an Employee’s Own Disclosure. The new law prohibits employers from requiring employees to sign contracts or waivers preventing them from disclosing information regarding their own wages, salary, benefits, or other compensation. Employers, however, may prohibit Human Resources personnel from disclosing other employees’ wage information without first obtaining written consent.
Broader Definition for “Comparators.” The new law expands the definition of applicable comparators. Previously, the Act prohibited pay discrimination where employees were performing substantially similar work on jobs that required “equal skill, effort and responsibility.” The amended Act refers to employees who are performing substantially similar work on jobs requiring “substantially similar skill, effort, and responsibility.”
Limited Exceptions to Equal Pay Treatment. Under the previous law, exceptions for pay differentials mirrored the federal Equal Pay Act and could be based on: i) seniority; ii) merit; iii) measures of earning based on quantity or quality of production; or iv) a factor other than sex, race, or unlawful discrimination. Under the amended law, any factor other than sex, race, or a factor that would constitute unlawful discrimination must also: (i) not be derived from a differential in compensation based on sex, race, or another protected characteristic; (ii) relate to the job or business needs; and (iii) actually account for the differential.