SB1707 101ST GENERAL ASSEMBLY

LRB101 08920 JLS 54010 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1707

Introduced 2/15/2019, by Sen. Jennifer Bertino-Tarrant

SYNOPSIS AS INTRODUCED:

820 ILCS 112/10
820 ILCS 112/13 new
820 ILCS 112/30

Amends the Equal Pay Act of 2003. Prohibits an employer from: (i) screening job applicants based on their wage or salary history, (ii) requiring that an applicant's prior wages satisfy minimum or maximum criteria, and (iii) requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant disclose prior wages or salary. Prohibits an employer from seeking the salary, including benefits or other compensation or salary history, of a job applicant from any current or former employer, with some exceptions. Provides for employers to establish a self-evaluation plan of the employer's pay practices. Sets forth permissible components of a self-evaluation plan. Requires the self-evaluation plan to be submitted to the Department of Labor for verification. Provides that an employer that has completed a self-evaluation plan that has been verified by the Department of Labor has an affirmative defense to liability for certain alleged violations of the Act. Provides that an employer that does not have a verified self-evaluation plan may be subject to civil penalties for violations of the Act. Limits defenses. Provides for penalties and injunctive relief.

FISCAL NOTE ACT MAY APPLY

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 adding Section 13 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 substantially similar 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, 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 entire 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 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 information about the employee's wages.

(b-5) It is unlawful for an employer to screen job applicants based on their wage or salary history, including by requiring that an applicant's prior wages, including benefits or other compensation, satisfy minimum or maximum criteria or requesting or requiring 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 as a condition of employment that an applicant disclose prior wages or salary.

(b-10) It is unlawful for an employer to seek the wage or salary history, including benefits or other compensation, of any 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.

(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; or .

(4) fails to comply with any wage history inquiry.

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

(820 ILCS 112/13 new)

Sec. 13. Self-evaluation plan.

(a) An employer against whom an action is brought alleging a violation of Section 10 of this Act and who, within the previous 3 years and prior to the commencement of the action, has completed a self-evaluation plan of its pay practices that has been verified by the Department pursuant to subsection (b) of this Section and can demonstrate that progress has been made towards eliminating wage differentials based upon 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, has an affirmative defense to liability for violations under Section 10 of this Act. An employer's self-evaluation may be of the employer's own design provided that it is, in light of the size of the employer, reasonable in detail and scope.

A self-evaluation plan may include, but is not limited to, the following components:

(1) an evaluation of the employer's compensation system for internal equity;

(2) an evaluation of the employer's compensation system for industry competitiveness;

(3) an examination of the employers' compensation system and comparison of job grades or scores;

(4) a review of data for personnel entering the employer;

(5) an assessment of how raises are awarded;

(6) an evaluation of employee training, development, and promotion opportunities; and

(7) a written policy that prohibits the employer from seeking the wage or salary history of a prospective employee and prohibits the employer from requiring an employee to sign a contract or waiver that would prohibit the employee from disclosing or discussing the employer's wage, salary, or other compensation.

(b) An employer shall submit the self-evaluation plan to the Department for verification that a self-evaluation plan has been completed. The self-evaluation plan shall be submitted to the Department on standard templates or forms issued by the Department.

(c) If an employer has completed a self-evaluation plan in another state within the previous 3 years that demonstrates that progress has been made towards eliminating wage differentials based on gender, then the business's evaluation plan shall be verified by the Department upon the employer providing proof the self-evaluation plan is completed and approved, verified, or otherwise accepted in that state.

(d) The Department shall verify an employer's self-evaluation plan established under subsection (a) within 30 days after the employer's submission of the self-evaluation plan.

(e) An employer who has completed a self-evaluation plan within the previous 3 years and prior to the commencement of the action can demonstrate that progress has been towards 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 self-evaluation plan was reasonable in detail and scope or verified by the Department is not be entitled to the affirmative defense established under this Section and is liable for any civil fine for a violation of this Act as follows:

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

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

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

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

(h) 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, 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), or (b-10) 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), or (b-10) 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 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.

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