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Illinois Revives "Don't Ask, Don't Tell" With its Equal Pay Act Amendment

Updated: Sep 6, 2020

(August 21, 2019)

Thomas Scott Stewart, a St. Louis attorney & counselor at law, focuses the power, precision and passion of one lawyer at work to fix your labor, employment and business law problems (licensed in Illinois, Missouri and Nevada).

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:

  1. Using wage or salary history to screen job applicants or condition offers of employment – and this includes information about benefits or other compensation;

  2. Asking an applicant about his or her wage or salary history;

  3. Seeking an applicant’s wage or salary history from a current or former employer; or

  4. 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:

  1. A current employee applies for a position with the employer;

  2. The information is a matter of public record under the Freedom of Information Act or any other equivalent state or federal law;

  3. The applicant’s current or former employer already made the information available to the public in a document; or

  4. 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.

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