Under a new law set to take effect September 29, 2019, Illinois employers will be prohibited from, among other things, asking for an employee’s wage history during the hiring process. The law, which amends the Illinois Equal Pay Act, is designed with the intent of avoiding future pay disparity between men and women based on prior wage differences.
Under the new law, Illinois employers are prohibited from the following:
- Screening job applicants based on current or prior wages or salary histories (including benefits or other compensation) by requiring an applicant’s wage or salary history satisfy minimum or maximum criteria.
- Requesting a wage or salary history as a condition of being considered for employment, being interviewed, or continuing to be considered for an offer of employment.
- Requesting that an applicant disclose wage or salary history as a condition of employment.
- Seeking wage or salary histories (including benefits or other compensation) about a job applicant or from any current or former employee (this does not apply where the information is a matter of public record or if the applicant is a current employee applying for a position within the same company).
- Requiring an employee to sign a contract or waiver that prohibits the employee from disclosing information about the employee’s wages, salary, benefits or other compensation.
- Discharging any employee who fails to comply with any wage or salary history inquiry.
The new law provides some guidance as to what an Illinois employer can discuss with respect to a prospective employee’s compensation expectations. Specifically, the new law permits employers to do the following:
- Provide information about the wages, benefits, compensation or salary offered in relation to a specific position.
- Engage in discussion with an applicant about the applicant’s wage, salary or compensation expectations.
The new law also addresses situations where an applicant discloses otherwise prohibited information during the hiring process. Should that occur, an employer is not in violation of the law unless the employer relies on the information for any of the following:
- Determining whether to offer the applicant employment.
- Determining whether to make a specific offer of compensation.
- Determining future wages, salary, benefits or other compensation.
The new law provides that an individual may bring a civil action against an employer who violates the law anytime within five (5) years of the alleged violation. The employee is entitled to recover any damages actually incurred, along with “special damages” up to $10,000, injunctive relief and reasonable attorneys’ fees and costs. Employers are also subject to civil penalties of up to $5,000 for each violation of the law and for each employee affected.
In light of the new law, Illinois employers should consider the following:
- Do your job application forms request information about an applicant’s wage or salary history at prior places of employment? If so, your job applications need to be updated.
- Employees involved in the hiring process need to be brought up to speed with the requirements of the new law.
- Employee handbooks/policies should be reviewed to ensure compliance with the new law, in particular any restrictions on employees discussing wages or compensation.