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Illinois House Set to Pass Tough Pay History Ban, Equal Pay Amendments

Once again, the Illinois Legislature is working to pass more aggressive equal pay laws. HB 834 includes not only a pay history ban, but also additional amendments to strengthen pay equity protections and pay transparency provisions.

Pay History

In 2017, and at the end of 2018, former Illinois Governor Bruce Rauner vetoed attempts to prohibit private employers from requesting applicants’ previous pay history. Having gained control of the governorship and commanding advantages in the Illinois House and Senate in the 2018 election, Democrats appeared poised to add Illinois the growing list of states barring all employers, public and private, from inquiring about an applicant’s salary history.

HB 834 would prohibit all employers, employment agencies, and agents (such as recruiters) from seeking the salary information of any applicant from any current or former employer. Additionally, the bill prevents employers from requiring that an applicant’s prior wage or salary “satisfy minimum or maximum criteria; or to request or require such wage or salary history as a consideration of being considered for employment.” The provision banning an employer from seeking pay history does not apply if the applicant’s salary is publicly available or subject to FOIA requests.

Expanded Comparators and Narrowed Affirmative Defenses

Similar to other state pay equity laws, the amendment would also change the Illinois Equal Pay Act’s requirement that employers pay equally for work that requires “equal” skill, effort, and responsibility and instead allow comparisons to those with “substantially similar skill, effort, and responsibility.

The amendment also would increase the employer’s burden of proof by requiring that any differences in pay:

  1. Not be based on or derived from a differential in compensation based on sex or another protected characteristic,
  2. Be job-related and consistent with business necessity, and
  3. Accounts for the entire differential in pay.

Pay Transparency

Finally, Illinois would join a growing number of states by codifying protections to employees’ right to discuss “wages, salary, benefits, or other compensation.” Employers would be prohibited from requiring employees to sign any contract or waiver of these rights.

HB 834 picked up 44 co-sponsors on its way through Committee, and House leaders have sent the bill for debate before the full House, where Democrats have a 74-44 advantage. If it passes, the salary history ban will proceed to the Illinois Senate.


Jackson Lewis P.C. © 2019


About this Author

James Mackey, Jackson Lewis Law Firm, Denver, Labor and Employment Law Attorney

James D. Mackey is an Associate in the Denver, Colorado, office of Jackson Lewis P.C. Mr. Mackey assists government contractors in creating affirmative action plans and defending clients during OFCCP investigations and audits.

During law school, Mr. Mackey interned with the Administrative Conference of the United States (ACUS), Human Rights Campaign, and in the Office of Equal Employment Opportunity Commission (EEOC) Commissioner Chai Feldblum. Mr. Mackey was a member of American University Law Review and...

Monica H. Khetarpal, Litigation Experience, Discrimination, Wage and Hour Violations, Jackson Lewis Law Firm

Monica H. Khetarpal is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. Her litigation experience includes cases involving claims for discrimination, harassment, wage and hour violations, FMLA violations, disability discrimination and requests for accommodation in both single plaintiff and class action matters. She regularly handles matters at all levels, from administrative agencies to appeals in both state and federal courts.

Ms. Khetarpal focuses a significant portion of her practice on representing higher education clients and serves as co-lead of Jackson Lewis' Higher Education Industry Group. She has experience defending denial of tenure cases, providing advice and counsel regarding high profile faculty and student matters, revising strategic policies and procedures, and conducting internal investigations. She has expertise in managing the student, faculty and media issues unique to the higher education setting.