Following the lead of many states and cities through the country, Illinois is on the verge of amending its Equal Pay Act to prohibit employers from asking job applicants about their salary history, screening job applicants based on wage history or requiring past salary meet a certain criteria. A copy of the draft amended Equal Pay Act is available for review here. This amendment is aimed at eliminating the practice of “low balling” compensation for female applicants during the recruitment process and salary negotiations by offering them compensation based on their previous salary.
Significantly, the amended Illinois Equal Pay Act provides that it is unlawful for an employer to: (1) screen job applicants based on their wage or salary history, (2) require an applicant’s prior wages -- which specifically includes benefits or other compensation -- to satisfy minimum or maximum criteria or (3) request or require the disclosure of an applicant’s prior compensation as a condition of being interviewed, being considered for an offer of employment, or as a condition of employment. An employer is also prohibited from terminating an employee who fails to comply with a wage history inquiry. There are very limited exceptions to this prohibition, such as when the applicant’s wage or salary history is a matter of public record under the Freedom of Information Act, or any other equivalent State of federal law, or if the applicant is a current employee and is applying for a position with the same employer.
Among all the other remedies available under the Act, an employer who fails to comply with the salary history prohibition of the Act is subject to a civil action for any damages the employee suffers (e.g., compensatory damages reflecting the underpayment), injunctive relief, reasonable attorney’s fees, as well as special damages up to $10,000 per violation. The Act further clarifies that a civil action under the amended Act can be brought by the employee within five (5) years of the violation.
These proposed amendments reflect Illinois’ attempt to align itself with changes being made around the country to decrease the pay gap between men and women. To see how this trend has impacted employers outside of Illinois, please see our colleague’s recent WISE article here which summarizes similar laws passed in other jurisdictions.