The Illinois Equal Pay Act of 2003 (EPA) already prohibits employers from paying unequal wages to men and women for doing the same or substantially similar work. (820 ILCS 112/1 et seq.) It also prohibits employers from paying African American employees less than other employees under the same circumstances.
On September 29, 2019, Illinois will join a short list of progressive states when a recent amendment to the EPA goes into effect to prohibit employers from asking job applicants about their salary history. (Public Act 101-0177.)
Broad Prohibitions In The New EPA
It will prohibit all Illinois employers from:
- Using wage or salary history to screen job applicants or condition offers of employment – and this includes information about benefits or other compensation;
- Asking an applicant about his or her wage or salary history;
- Seeking an applicant’s wage or salary history from a current or former employer; or
- Discharging an employee or discriminating against any individual because that individual fails to comply with any wage or salary history inquiry.
Limited Exceptions
An employer may still seek wage or salary history, including
benefits or other compensation, when:
- A current employee applies for a position
with the employer; - The information is a matter of public record
under the Freedom of Information Act or any other equivalent state or federal
law; - The applicant’s current or former employer
already made the information available to the public in a document; or - The applicant’s current or former employer
submitted or posted the information to comply with state or federal law.
What Can Illinois Employers Do?
Provide salary and benefits information to applicants and
then ask if that falls within their expectations. They can even discuss the
applicant’s salary and benefits expectations without first disclosing
the contemplated range or package for the position. And there’s no prohibition
to job applicants voluntarily (and without prompting) disclosing current
or prior salary history.
But this is where it gets tricky: the new EPA prohibits the
employer from even considering that voluntary disclosure in making any
hiring decision about any applicant for the position or even in
determining the salary and benefits package for the position. How can an
employer protect itself from this sort of speculative liability?
This leads us to recommend, as a best practice for all
Illinois employers, to take reasonable precautions to actually prevent
an employee from volunteering this information in the first place. Because once
an employer knows it – for even one applicant – then every single decision that
employer makes about every single applicant for the position becomes a
potential legal dispute.
And this speculative liability will be even more difficult
to manage where some of the applicants to a position have a work history that
includes public employment. Will the fact that some (not even all)
salary history of some of the applicants (again, not even all of them)
may already be in the public domain now be imputed to the employer? And if it
is, will that imputed knowledge now be used against them in a claim that the
employer considered that information in deciding to hire one applicant over
another? Probably so. Which essentially turns the new EPA into a “Don’t Look,
Don’t Tell” regime!
In addition to the recommendation above, by September 29,
2019, all Illinois employers should remove any questions on employment
applications requesting salary history and also stop discussing it during
interviews. They also should develop policies, practices and procedures that
demonstrate they don’t even consider the salary history of applicants for a
position when either making hiring decisions about that position or developing
salary and benefits packages for it.
What’s The Risk For Failing To Comply?
A civil action brought by any aggrieved employee or (most likely) applicant, who stands to recover: any damages incurred (think “pain and suffering” and “emotional distress,” but punitive damages also may be available here); special damages (which includes lost wages and medical bills) not to exceed $10,000; injunctive relief when appropriate; costs; and reasonable attorney’s fees. If special damages are available, then recovery of compensatory damages may be had only to the extent that those damages exceed the number of special damages.
In addition, the Director of the Illinois Department of
Labor may bring “any legal action necessary” to recover amounts owed to
affected employees, obtain injunctive relief and enforce civil penalties in an
amount up to $5,000 for each violation for each employee affected.
A five-year statute of limitations applies to all claims
under the new EPA.
If you have any questions about the new provisions to the Illinois Equal Protection Act, please feel free to contact your Tressler attorneys.
For more information about this article, contact Tressler attorney Scott Stewart at scottstewart@tresslerllp.com.