By Tom M. Cramer, J.D.
That delicate question about compensation that occurs in some job interviews is a thing of the past now thanks to an amendment to the Illinois Equal Pay Act that was signed last summer by Illinois Governor J.B. Pritzker. It generally prohibits employers in Illinois from inquiring about a job applicant’s compensation history, and it imposes severe penalties for violations of the amendment.
Beginning September 29, 2019, Illinois employers must remove all questions on employment applications requesting salary or wage history and should have trained their recruiters and others who interview applicants not to make such inquiries.
What does the amendment prohibit?
Specifically, the amendment makes it unlawful for an employer with employees in Illinois to do any of the following:
Review job applicants based on their current or prior wages or salary histories, including benefits or other compensation. This extends to requiring that the wage or salary history of an applicant satisfy minimum or maximum criteria.
Ask for or require a wage or salary history under a variety of conditions:
- as a condition of being considered for employment;
- as a condition of being interviewed;
- as a condition of continuing to be considered for an offer of employment; or
- as a condition of an offer of employment or an offer of compensation.
Request or require that an applicant disclose wage or salary history as a condition of employment.
Ask for the wage or salary history, including benefits or other compensation, of a job applicant from any current or former employer.
In any way, discharge or otherwise discriminate against an individual because that individual fails to comply with a wage or salary history inquiry.
Are there exceptions to seeking wage or salary history?
Yes, limited exceptions do exist. An employer may seek the wage or salary history, including benefit or other compensation information, for the following:
If the applicant is seeking a position with the current employer.
If the 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. It may also be asked of an applicant if the salary is contained in a document completed by the job applicant’s current or former employer and then made available to the public in some fashion by the employer, or posted by the employer to comply with state or federal law. This type of exception generally applies if the applicant is or was an employee in the public sector.
Other Situations that Aren’t Violations
The following do not constitute violations of the amendment:
The applicant can be asked by the employer if the wages, benefits, compensation or salary offered for a particular position are within the applicant’s expectations.
The applicant can discuss with an employer about the applicant’s expectations concerning wage or salary, benefits, and other compensation, even without first informing the applicant about the compensation/benefits range or package being contemplated for the position.
The applicant can voluntarily and without prompting disclose his or her current or prior wage or salary history, including benefits or other compensation. However, the employer cannot consider or rely on 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.
What happens when violations occur?
Violations of the Equal Pay Amendment subjects the employer to a civil action by either the applicant or an 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 to make the employee whole.
The Act has a five-year statute of limitations.
