Public Act 103-0539
HB3129 EnrolledLRB103 30957 SPS 57530 b HB3129 Enrolled LRB103 30957 SPS 57530 b
HB3129 Enrolled LRB103 30957 SPS 57530 b
AN ACT concerning employment.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Equal Pay Act of 2003 is amended by changing
Sections 5, 10, 15, 20, and 30 as follows:
(820 ILCS 112/5)
Sec. 5. Definitions. As used in this Act:
"Director" means the Director of Labor.
"Department" means the Department of Labor.
"Employee" means any individual permitted to work by an
employer.
"Employer" means an individual, partnership, corporation,
association, business, trust, person, or entity for whom
employees are gainfully employed in Illinois and includes the
State of Illinois, any state officer, department, or agency,
any unit of local government, and any school district.
"Pay scale and benefits" means the wage or salary, or the
wage or salary range, and a general description of the
benefits and other compensation, including, but not limited
to, bonuses, stock options, or other incentives the employer
reasonably expects in good faith to offer for the position,
set by reference to any applicable pay scale, the previously
determined range for the position, the actual range of others
HB3129 Enrolled LRB103 30957 SPS 57530 b
currently holding equivalent positions, or the budgeted amount
for the position, as applicable.
(Source: P.A. 99-418, eff. 1-1-16.)
(820 ILCS 112/10)
Sec. 10. Prohibited acts.
(a) No employer may discriminate between employees on the
basis of sex by paying wages to an employee at a rate less than
the rate at which the employer pays wages to another employee
of the opposite sex for the same or substantially similar work
on jobs the performance of which requires substantially
similar skill, effort, and responsibility, and which are
performed under similar working conditions, except where the
payment is made under:
(1) a seniority system;
(2) a merit system;
(3) a system that measures earnings by quantity or
quality of production; or
(4) a differential based on any other factor other
than: (i) sex or (ii) a factor that would constitute
unlawful discrimination under the Illinois Human Rights
Act, provided that the factor:
(A) is not based on or derived from a differential
in compensation based on sex or another protected
characteristic;
(B) is job-related with respect to the position
and consistent with a business necessity; and
(C) accounts for the differential.
No employer may discriminate between employees by paying
wages to an African-American employee at a rate less than the
rate at which the employer pays wages to another employee who
is not African-American for the same or substantially similar
work on jobs the performance of which requires substantially
similar skill, effort, and responsibility, and which are
performed under similar working conditions, except where the
payment is made under:
(1) a seniority system;
(2) a merit system;
(3) a system that measures earnings by quantity or
quality of production; or
(4) a differential based on any other factor other
than: (i) race or (ii) a factor that would constitute
unlawful discrimination under the Illinois Human Rights
Act, provided that the factor:
(A) is not based on or derived from a differential
in compensation based on race or another protected
characteristic;
(B) is job-related with respect to the position
and consistent with a business necessity; and
(C) accounts for the differential.
An employer who is paying wages in violation of this Act
may not, to comply with this Act, reduce the wages of any other
employee.
Nothing in this Act may be construed to require an
employer to pay, to any employee at a workplace in a particular
county, wages that are equal to the wages paid by that employer
at a workplace in another county to employees in jobs the
performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions.
(b) It is unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise
any right provided under this Act. It is unlawful for any
employer to discharge or in any other manner discriminate
against any individual for inquiring about, disclosing,
comparing, or otherwise discussing the employee's wages or the
wages of any other employee, or aiding or encouraging any
person to exercise his or her rights under this Act. It is
unlawful for an employer to require an employee to sign a
contract or waiver that would prohibit the employee from
disclosing or discussing information about the employee's
wages, salary, benefits, or other compensation. An employer
may, however, prohibit a human resources employee, a
supervisor, or any other employee whose job responsibilities
require or allow access to other employees' wage or salary
information from disclosing that information without prior
written consent from the employee whose information is sought
or requested.
(b-5) It is unlawful for an employer or employment agency,
or employee or agent thereof, to (1) screen job applicants
based on their current or prior wages or salary histories,
including benefits or other compensation, by requiring that
the wage or salary history of an applicant satisfy minimum or
maximum criteria, (2) request or require a wage or salary
history 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, as a condition of
an offer of employment or an offer of compensation, or (3)
request or require that an applicant disclose wage or salary
history as a condition of employment.
(b-10) It is unlawful for an employer to seek the wage or
salary history, including benefits or other compensation, of a
job applicant from any current or former employer. This
subsection (b-10) does not apply if:
(1) the job 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, or is
contained in a document completed by the job applicant's
current or former employer and then made available to the
public by the employer, or submitted or posted by the
employer to comply with State or federal law; or
(2) the job applicant is a current employee and is
applying for a position with the same current employer.
(b-15) Nothing in subsections (b-5) and (b-10) shall be
construed to prevent an employer or employment agency, or an
employee or agent thereof, from:
(1) providing information about the wages, benefits,
compensation, or salary offered in relation to a position;
or
(2) engaging in discussions with an applicant for
employment about the applicant's expectations with respect
to wage or salary, benefits, and other compensation,
including unvested equity or deferred compensation that
the applicant would forfeit or have canceled by virtue of
the applicant's resignation from the applicant's current
employer. If, during such discussion, the applicant
voluntarily and without prompting discloses that the
applicant would forfeit or have canceled by virtue of the
applicant's resignation from the applicant's current
employer unvested equity or deferred compensation, an
employer may request the applicant to verify the aggregate
amount of such compensation by submitting a letter or
document stating the aggregate amount of the unvested
equity or deferred compensation from, at the applicant's
choice, one of the following: (1) the applicant's current
employer or (2) the business entity that administers the
funds that constitute the unvested equity or deferred
compensation.
(b-20) An employer is not in violation of subsections
(b-5) and (b-10) when a job applicant voluntarily and without
prompting discloses his or her current or prior wage or salary
history, including benefits or other compensation, on the
condition that the employer does not consider or rely on the
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.
(b-25) It is unlawful for an employer with 15 or more
employees to fail to include the pay scale and benefits for a
position in any specific job posting. The inclusion of a
hyperlink to a publicly viewable webpage that includes the pay
scale and benefits satisfies the requirements for inclusion
under this subsection. If an employer engages a third party to
announce, post, publish, or otherwise make known a job
posting, the employer shall provide the pay scale and
benefits, or a hyperlink to the pay scale and benefits, to the
third party and the third party shall include the pay scale and
benefits, or a hyperlink to the pay scale and benefits, in the
job posting. The third party is liable for failure to include
the pay scale and benefits in the job posting, unless the third
party can show that the employer did not provide the necessary
information regarding pay scale and benefits. An employer
shall announce, post, or otherwise make known all
opportunities for promotion to all current employees no later
than 14 calendar days after the employer makes an external job
posting for the position, except for positions in the State of
Illinois workforce designated as exempt from competitive
selection. Nothing in this subsection requires an employer to
make a job posting. Posting of a relevant and up to date
general benefits description in an easily accessible, central,
and public location on an employer's website and referring to
this posting in the job posting shall be deemed to satisfy the
benefits posting requirement under this subsection. This
subsection only applies to positions that (i) will be
physically performed, at least in part, in Illinois or (ii)
will be physically performed outside of Illinois, but the
employee reports to a supervisor, office, or other work site
in Illinois. Nothing in this subsection prohibits an employer
or employment agency from asking an applicant about his or her
wage or salary expectations for the position the applicant is
applying for. An employer or employment agency shall disclose
to an applicant for employment the pay scale and benefits to be
offered for the position prior to any offer or discussion of
compensation and at the applicant's request, if a public or
internal posting for the job, promotion, transfer, or other
employment opportunity has not been made available to the
applicant. This subsection shall only apply to job postings
that have been posted after the effective date of this
amendatory Act of the 103rd General Assembly.
(b-30) An employer or an employment agency shall not
refuse to interview, hire, promote, or employ, and shall not
otherwise retaliate against, an applicant for employment or an
employee for exercising any rights under subsection (b-25).
(c) It is unlawful for any person to discharge or in any
other manner discriminate against any individual because the
individual:
(1) has filed any charge or has instituted or caused
to be instituted any proceeding under or related to this
Act;
(2) has given, or is about to give, any information in
connection with any inquiry or proceeding relating to any
right provided under this Act;
(3) has testified, or is about to testify, in any
inquiry or proceeding relating to any right provided under
this Act; or
(4) fails to comply with any wage or salary history
inquiry.
(Source: P.A. 101-177, eff. 9-29-19; 102-277, eff. 1-1-22.)
(820 ILCS 112/15)
Sec. 15. Enforcement.
(a) The Director or his or her authorized representative
shall administer and enforce the provisions of this Act. The
Director of Labor shall adopt rules necessary to administer
and enforce this Act.
(b) An employee, or former employee , or, for the purposes
of a violation of subsection (b-25) of Section 10, any person
that claims to be aggrieved by a violation of that subsection,
may file a complaint with the Department alleging a violation
of this Act by submitting a signed, completed complaint form.
All complaints shall be filed with the Department within one
year from the date of the relevant violation underpayment.
(c) The Department has the power to conduct investigations
in connection with the administration and enforcement of this
Act and the authorized officers and employees of the
Department are authorized to investigate and gather data
regarding the wages, hours, and other conditions and practices
of employment in any industry subject to this Act, and may
enter and inspect such places and such records at reasonable
times during regular business hours, question the employees
and investigate the facts, conditions, practices, or matters
as he or she may deem necessary or appropriate to determine
whether any person has violated any provision of this Act, or
which may aid in the enforcement of this Act.
(d) The Department may refer a complaint alleging a
violation of this Act to the Department of Human Rights for
investigation if the subject matter of the complaint also
alleges a violation of the Illinois Human Rights Act and the
Department of Human Rights has jurisdiction over the matter.
When a complaint is referred to the Department of Human Rights
under this subsection, the Department of Human Rights shall
also file the complaint under the Illinois Human Rights Act
and be the agency responsible for investigating the complaint.
The Department shall review the Department of Human Rights'
investigation and findings to determine whether a violation of
this Act has occurred or whether further investigation by the
Department is necessary and take any necessary or appropriate
action required to enforce the provisions of this Act. The
Director of Labor and the Department of Human Rights shall
adopt joint rules necessary to administer and enforce this
subsection.
(Source: P.A. 98-1051, eff. 1-1-15.)
(820 ILCS 112/20)
Sec. 20. Recordkeeping requirements. An employer subject
to any provision of this Act shall make and preserve records
that document the name, address, and occupation of each
employee, the wages paid to each employee, the pay scale and
benefits for each position, the job posting for each position,
and any other information the Director may by rule deem
necessary and appropriate for enforcement of this Act. An
employer subject to any provision of this Act shall preserve
those records for a period of not less than 5 years and shall
make reports from the records as prescribed by rule or order of
the Director, unless the records relate to an ongoing
investigation or enforcement action under this Act, in which
case the records must be maintained until their destruction is
authorized by the Department or by court order.
(Source: P.A. 96-467, eff. 8-14-09.)
(820 ILCS 112/30)
Sec. 30. Violations; fines and penalties.
(a) If an employee is paid by his or her employer less than
the wage to which he or she is entitled in violation of Section
10 or 11 of this Act, the employee may recover in a civil
action the entire amount of any underpayment together with
interest, compensatory damages if the employee demonstrates
that the employer acted with malice or reckless indifference,
punitive damages as may be appropriate, injunctive relief as
may be appropriate, and the costs and reasonable attorney's
fees as may be allowed by the court and as necessary to make
the employee whole. At the request of the employee or on a
motion of the Director, the Department may make an assignment
of the wage claim in trust for the assigning employee and may
bring any legal action necessary to collect the claim, and the
employer shall be required to pay the costs incurred in
collecting the claim. Every such action shall be brought
within 5 years from the date of the underpayment. For purposes
of this Act, "date of the underpayment" means each time wages
are underpaid.
(a-5) If an employer violates subsection (b), (b-5),
(b-10), or (b-20) of Section 10, the employee may recover in a
civil action 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 and as necessary to make the employee whole. If special
damages are available, an employee may recover compensatory
damages only to the extent such damages exceed the amount of
special damages. Such action shall be brought within 5 years
from the date of the violation.
(b) The Director is authorized to supervise the payment of
the unpaid wages under subsection (a) or damages under
subsection (b), (b-5), (b-10), or (b-20) of Section 10 owing
to any employee or employees under this Act and may bring any
legal action necessary to recover the amount of unpaid wages,
damages, and penalties or to seek injunctive relief, and the
employer shall be required to pay the costs. Any sums
recovered by the Director on behalf of an employee under this
Section shall be paid to the employee or employees affected.
(c) Employers who violate any provision of this Act or any
rule adopted under the Act, except for a violation of
subsection (b-25) of Section 10, are subject to a civil
penalty for each employee affected as follows:
(1) An employer with fewer than 4 employees: first
offense, a fine not to exceed $500; second offense, a fine
not to exceed $2,500; third or subsequent offense, a fine
not to exceed $5,000.
(2) An employer with between 4 and 99 employees: first
offense, a fine not to exceed $2,500; second offense, a
fine not to exceed $3,000; third or subsequent offense, a
fine not to exceed $5,000.
(3) An employer with 100 or more employees who
violates any Section of this Act except for Section 11
shall be fined up to $10,000 per employee affected. An
employer with 100 or more employees that is a business as
defined under Section 11 and commits a violation of
Section 11 shall be fined up to $10,000.
Before any imposition of a penalty under this subsection,
an employer with 100 or more employees who violates item (b) of
Section 11 and inadvertently fails to file an initial
application or recertification shall be provided 30 calendar
days by the Department to submit the application or
recertification.
An employer or person who violates subsection (b), (b-5),
(b-10), (b-20), or (c) of Section 10 is subject to a civil
penalty not to exceed $5,000 for each violation for each
employee affected.
(c-5) The Department may initiate investigations of
alleged violations of subsection (b-25) of Section 10 upon
receiving a complaint from any person that claims to be
aggrieved by a violation of that subsection or at the
Department's discretion. Any person that claims to be
aggrieved by a violation of subsection (b-25) of Section 10
may submit a complaint of an alleged violation of that
subsection to the Department within one year after the date of
the violation. If the Department has determined that a
violation has occurred, it shall issue to the employer a
notice setting forth the violation, the applicable penalty as
described in subsections (c-10) and (c-15), and the period to
cure the violation as described in subsection (c-10).
(c-7) A job posting found to be in violation of subsection
(b-25) of Section 10 shall be considered as one violating job
posting regardless of the number of duplicative postings that
list the job opening.
(c-10) The penalties for a job posting or batch of
postings that are active at the time the Department issues a
notice of violation for violating subsection (b-25) of Section
10 are as follows:
(1) For a first offense, following a cure period of 14
days to remedy the violation, a fine not to exceed $500 at
the discretion of the Department. A first offense may be
either a single job posting that violates subsection
(b-25) of Section 10 or multiple job postings that violate
subsection (b-25) of Section 10 and are identified at the
same time by the Department. The Department shall have
discretion to waive any civil penalty under this
paragraph.
(2) For a second offense, following a cure period of 7
days to remedy the violation, a fine not to exceed $2,500
at the discretion of the Department. A second offense is a
single job posting that violates subsection (b-25) of
Section 10. The Department shall have discretion to waive
any civil penalty under this paragraph.
(3) For a third or subsequent offense, no cure period,
a fine not to exceed $10,000 at the discretion of the
Department. A third or subsequent offense is a single job
posting that violates subsection (b-25) of Section 10. The
Department shall have discretion to waive any civil
penalty under this paragraph. If a company has had a third
offense, it shall incur automatic penalties without a cure
period for a period of 5 years, at the completion of which
any future offense shall count as a first offense. The
5-year period shall restart if, during that period, an
employer receives a subsequent notice of violation from
the Department.
(c-15) The penalties for a job posting or batch of job
postings that are not active at the time the Department issues
a notice of violation for violating subsection (b-25) of
Section 10 are as follows:
(1) For a first offense, a fine not to exceed $250 at
the discretion of the Department. A first offense may be
either a single job posting that violates subsection
(b-25) of Section 10 or multiple job postings that violate
subsection (b-25) of Section 10 and are identified at the
same time by the Department. The Department shall have
discretion to waive any civil penalty under this
paragraph.
(2) For a second offense, a fine not to exceed $2,500
at the discretion of the Department. A second offense is a
single job posting that violates subsection (b-25) of
Section 10. The Department shall have discretion to waive
any civil penalty under this paragraph.
(3) For a third or subsequent offense, a fine not to
exceed $10,000 at the discretion of the Department. A
third or subsequent offense is a single job posting that
violates subsection (b-25) of Section 10. The Department
shall have discretion to waive any civil penalty under
this paragraph.
For the purposes of this subsection, the Department,
during its investigation of a complaint, shall make a
determination as to whether a job posting is not active by
considering the totality of the circumstances, including, but
not limited to: (i) whether a position has been filled; (ii)
the length of time a posting has been accessible to the public;
(iii) the existence of a date range for which a given position
is active; and (iv) whether the violating posting is for a
position for which the employer is no longer accepting
applications.
(d) In determining the amount of the penalty under this
Section, the appropriateness of the penalty to the size of the
business of the employer charged and the gravity of the
violation shall be considered. The penalty may be recovered in
a civil action brought by the Director in any circuit court.
(Source: P.A. 101-177, eff. 9-29-19; 102-36, eff. 6-25-21.)