Illinois Governor Bruce Rauner has vetoed amendments to the Illinois Equal Pay Act that would have removed wage and salary history from the equation for employers when considering job applicants. Employers are cheering the move, as the amendments also would have lowered the burden of proof for plaintiffs alleging equal pay violations under the statute and raised the defense bar for employers.
Had the bill been signed into law, Illinois employers would not have been permitted to:
- Require an employee to sign a contract in which they agree to keep their wages secret;
- Screen applicants based on their wage or salary history. This would have meant employers could not ask applicants to disclose their prior wages or salary at any step in the process, nor could they require that an applicant’s prior wages satisfy minimum or maximum criteria; or
- Ask an applicant’s current or former employer about their prior wages, unless the applicant was a current employee applying for a new position with the employer or the applicant’s wage or salary history was a matter of public record.
Additionally, the Illinois Equal Pay Act requires plaintiffs to show that they were being paid less than an employee of the opposite sex “for the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,” subject to certain exceptions (emphasis added). Had the amendments not been vetoed, plaintiffs would have been required to show only that the performance of the jobs in question required “substantially similar” skill, effort, etc.
The amendments also would have restricted employers’ ability to defend against equal pay claims on the grounds that the payment at issue was “made under a differential based on any factor other than (i) sex or (ii) a factor that would constitute unlawful discrimination under the Illinois Human Rights Act.” Had the bill become law, employers would have borne the additional burden of showing that the other factor was not related to a pay differential based on sex or another protected characteristic, was job-related and consistent with business necessity, and accounted for the entire differential in question.
Given the teeth that the amendments would have had in the form of the potential for fines, compensatory damages, punitive damages, injunctive relief, and attorney’s fees and costs, as well as its hefty five-year statute of limitations, Governor Rauner’s veto is good news for Illinois employers.