Illinois Equal Pay Act Amendment Prohibits Employers from Asking About Compensation History

Gov. J.B. Pritzker signed an amendment to the Illinois Equal Pay Act (EPA) on July 31, 2019, prohibiting Illinois employers from asking a job applicant about or otherwise inquiring about a job applicant's compensation history. The amendment is effective on Sept. 29, 2019. The EPA applies to all Illinois employers.

Prohibitions

As of Sept. 29, 2019, the EPA makes it unlawful for an employer with employees in Illinois to engage in any of the following acts.

1. Screen job applicants based on their current or prior wages or salary histories, including benefits or other compensation, by requiring that the wage or salary history of an applicant satisfy minimum or maximum criteria.
2. Request or require a wage or salary history a) as a condition of being considered for employment; b) as a condition of being interviewed; c) as a condition of continuing to be considered for an offer of employment; or d) as a condition of an offer of employment or an offer of compensation.
3. Request or require that an applicant disclose wage or salary history as a condition of employment
4. Seek the wage or salary history, including benefits or other compensation, of a job applicant from any current or former employer.
5. Discharge or otherwise discriminate against any individual because that individual fails to comply with any wage or salary history inquiry.

Exceptions

There are limited exceptions. An employer may seek the wage or salary history, including benefit or other compensation information, in the following situations.

1. The job applicant is applying for a position with the same current employer.
2. The job applicant's wage or salary history is a matter of public record under the Freedom of Information Act, or any other equivalent state or federal law, or is contained in a document completed by the job applicant's current or former employer and then made available to the public by the employer, or submitted or posted by the employer to comply with state or federal law. Typically, this exception will apply when the applicant is or was a public sector employee.

Permitted Activities

The following actions by the employer or other situations are not a violation of the EPA.

1. The employer may provide information about wages, benefits, compensation or salary offered for a particular position and ask the applicant if that is within the applicant's expectations.
2. The employer may engage in discussions with an applicant for employment about the applicant's expectations with respect to wage or salary, benefits and other compensation, even without first disclosing the compensation/benefits range or package being contemplated for the position.
3. There is no violation of the EPA if a job applicant voluntarily and without prompting discloses his or her current or prior wage or salary history, including benefits or other compensation, provided the employer does not consider or rely on the voluntary disclosures as a factor in determining whether to offer a job applicant employment, in making an offer of compensation, or in determining future wages, salary, benefits or other compensation.

Remedies

Violations of the EPA's prohibitions subject the employer to a civil action by the aggrieved applicant or employee. The applicant/employee may recover any damages incurred, special damages not to exceed $10,000, injunctive relief as may be appropriate, and costs and reasonable attorney's fees as may be allowed by the court and as necessary to make the employee whole. If special damages are available, an employee may recover compensatory damages only to the extent such damages exceed the amount of special damages. The Act has a five-year statute of limitations.

By Sept. 29, 2019, employers with positions in Illinois should remove all questions on employment applications requesting salary or wage history (i.e., salary/wages at current and prior employers). They should also cease all screening and other interview questions relating to salary or wage history.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.