HB0881 101ST GENERAL ASSEMBLY

LRB101 06243 TAE 51269 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB0881

Introduced , by Rep. Margo McDermed

SYNOPSIS AS INTRODUCED:

820 ILCS 112/10
820 ILCS 112/28 new
820 ILCS 112/30

Amends the Equal Pay Act of 2003. Provides that 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 the employee's wage or salary; however, an employer may 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 such information without prior written consent from the employee whose information is sought or requested. Provides that it is unlawful for an employer to seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer or to require that a prospective employee's prior wage or salary history meet certain criteria, with some exceptions. Provides that an employer against whom an action is brought alleging a violation of the Act's prohibition against gender-based wage differentials and who, within the previous 3 years and prior to the commencement of the action, has completed a self-evaluation of the employer's pay practices in good faith and can demonstrate that reasonable progress has been made toward eliminating wage differentials based on gender for the same or substantially similar work in accordance with that evaluation shall have an affirmative defense to liability. Provides that an employer who cannot demonstrate that the evaluation was reasonable in detail and scope shall not be entitled to an affirmative defense, but shall not be liable for any civil fine in excess of: (1) $500 per employee affected, if the employer has fewer than 4 employees; or (2) $2,500 per employee affected, if the employer has 4 or more employees. Provides that if an employee recovers unpaid wages under the Act and also files a complaint or brings a sex discrimination action under the federal Fair Labor Standards Act of 1938 that results in additional recovery under federal law for the same violation, the employee shall return to the employer the amounts recovered under State law or the amounts recovered under federal law, whichever is less.

A BILL FOR

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 10 and 30 and by adding Section 28 as follows:

(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 equal 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.

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 equal 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.

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 the employee's wage or salary. However, an employer may 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 such information without prior written consent from the employee whose information is sought or requested.

(b-5) It is unlawful for an employer to seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer or to require that a prospective employee's prior wage or salary history meet certain criteria. This subsection does not apply if:

(1) the prospective employee's wage or salary history is a matter of public record;

(2) the prospective employee is a current employee of the employer and is applying for a position with the same employer; or

(3) a prospective employee has voluntarily disclosed such information.

An employer may seek or confirm a prospective employee's wage or salary history after an offer of employment, with salary or wage, has been negotiated and made to the prospective employee.

(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; or

(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this Act.

(Source: P.A. 100-1140, eff. 1-1-19.)

(820 ILCS 112/28 new)

Sec. 28. Self-evaluation.

(a) An employer against whom an action is brought alleging a violation of subsection (a) of Section 10 and who, within the previous 3 years and prior to the commencement of the action, has completed a self-evaluation of the employer's pay practices in good faith and can demonstrate that reasonable progress has been made toward eliminating wage differentials based on gender 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, in accordance with that evaluation, shall have an affirmative defense to liability under subsection (a) of Section 10. For purposes of this subsection, an employer's self-evaluation may be of the employer's own design, so long as it is reasonable in detail and scope in light of the size of the employer, or may be consistent with standard templates or forms issued by the Department.

(b) An employer who has completed a self-evaluation in good faith within the previous 3 years and prior to the commencement of the action and can demonstrate that reasonable progress has been made toward eliminating wage differentials based on gender 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, but cannot demonstrate that the evaluation was reasonable in detail and scope, shall not be entitled to an affirmative defense under this subsection, but shall not be liable for any civil fine for a violation of this Act in excess of:

(1) $500 per employee affected, if the employer has fewer than 4 employees; or

(2) $2,500 per employee affected, if the employer has 4 or more employees.

(c) Evidence of a self-evaluation or remedial steps undertaken in accordance with this Section shall not be admissible in any proceeding as evidence of a violation of this Act.

(d) An employer who has not completed a self-evaluation shall not be subject to any negative or adverse inference as a result of not having completed a self-evaluation.

(e) An employer who uses the affirmative defense under this Section is not precluded from using any other affirmative defense under this Act.

(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 of this Act, the employee may recover in a civil action the entire amount of any underpayment together with interest 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.

(b) The Director is authorized to supervise the payment of the unpaid wages owing to any employee or employees under this Act and may bring any legal action necessary to recover the amount of unpaid wages and penalties 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 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 4 or more 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.

An employer or person who violates subsection (b) or (c) of Section 10 is subject to a civil penalty not to exceed $5,000 for each violation for each employee affected.

(d) In determining the amount of the penalty, 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.

(e) If an employee recovers unpaid wages under this Section and also files a complaint or brings an action under 29 U.S.C. Section 206(d) that results in additional recovery under federal law for the same violation, the employee shall return to the employer the amounts recovered under this Section or the amounts recovered under federal law, whichever is less.

(Source: P.A. 99-418, eff. 1-1-16.)