Amendments to Illinois’ Equal Pay Act (EPA) go into effect on September 29, 2019, leaving employers little time to adjust their hiring practices. 

No Inquiries into Salary History. Under the amended EPA, employers and employment agencies may not: 

  • Screen applicants based on their current or prior wage or salary history, including benefits or other compensation;
  • Request or require an applicant’s salary history as a condition of being considered for  employment; or
  • Request or require that an applicant disclose his or her salary history as a condition of employment. 

Employers also are prohibited from seeking an applicant’s salary history from an applicant’s current or former employer.

Employers are not prohibited however, from (i) providing information about the compensation or benefits of a position, or (ii) discussing an applicant’s expectations about compensation or benefits. An employer also would not violate the EPA if a job applicant voluntarily discloses his or her current or prior compensation, provided the employer does not consider the voluntary disclosure in deciding whether to offer the applicant employment or in setting compensation.

An employer found to have violated the law may be subject to: 

  1. Damages;
  2. Special damages not to exceed $10,000;
  3. Injunctive relief;
  4. Costs and reasonable attorney’s fees; and
  5. Civil penalty not to exceed $5,000 for each violation for each employee affected.

In order to avoid fines and lawsuits, companies recruiting in Illinois should remove any questions about an applicant’s previous pay or benefits from their job applications and any related documents, both on-line or in hard copy.

No Restrictions on an Employee’s Own Disclosure. The new law prohibits employers from requiring employees to sign contracts or waivers preventing them from disclosing information regarding their own wages, salary, benefits, or other compensation. Employers, however, may prohibit Human Resources personnel from disclosing other employees’ wage information without first obtaining written consent. 

Broader Definition for “Comparators.” The new law expands the definition of applicable comparators. Previously, the Act prohibited pay discrimination where employees were performing substantially similar work on jobs that required “equal skill, effort and responsibility.” The amended Act refers to employees who are performing substantially similar work on jobs requiring “substantially similar skill, effort, and responsibility.” 

Limited Exceptions to Equal Pay Treatment. Under the previous law, exceptions for pay differentials mirrored the federal Equal Pay Act and could be based on: i) seniority; ii) merit; iii) measures of earning based on quantity or quality of production; or iv) a factor other than sex, race, or unlawful discrimination. Under the amended law, any factor other than sex, race, or a factor that would constitute unlawful discrimination must also: (i) not be derived from a differential in compensation based  on sex, race, or another protected characteristic; (ii) relate to the job or business needs; and (iii) actually account for the differential. 

More information can be found in our other articles on the Illinois EPA. Members of Jackson Lewis’ Pay Equity Resource Group can also offer guidance to employers to ensure compliance with the law’s amended provisions.

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Photo of Cashida N. Okeke Cashida N. Okeke

Cashida N. Okeke is an associate in the Greenville, South Carolina, office of Jackson Lewis P.C. Her practice focuses exclusively on representing management in a broad range of employment law matters through both litigation as well as preventive advice and counseling.

Cashida has…

Cashida N. Okeke is an associate in the Greenville, South Carolina, office of Jackson Lewis P.C. Her practice focuses exclusively on representing management in a broad range of employment law matters through both litigation as well as preventive advice and counseling.

Cashida has litigated cases involving both federal and state employment laws, including claims involving discrimination, harassment, retaliation, wrongful termination, and wage and hour issues.  She has also helped clients defend against denial of benefits claims brought under ERISA and has represented employers in proceedings before various administrative agencies such as the Equal Employment Opportunity Commission and the South Carolina Human Affairs Commission.

Before joining Jackson Lewis, Cashida was an associate at a nationwide law firm, where she practiced in the areas of business litigation, pharmaceutical and medical device litigation, and complex e-discovery.

While attending law school, Cashida served as Associate Editor in Chief of the ABA Real Property Trust and Estate Law Journal.

Photo of Kathryn Montgomery Moran Kathryn Montgomery Moran

Kathryn Montgomery Moran is a principal in the Chicago, Illinois, office of Jackson Lewis P.C. She has extensive litigation experience in individual and class action cases in state and federal courts and administrative agencies.

When disputes cannot be resolved by agreement or dismissed…

Kathryn Montgomery Moran is a principal in the Chicago, Illinois, office of Jackson Lewis P.C. She has extensive litigation experience in individual and class action cases in state and federal courts and administrative agencies.

When disputes cannot be resolved by agreement or dismissed on technical

grounds, Kathryn tries cases before juries, judges, administrative law judges and arbitrators. She has successfully defended employers accused of the following: age, sex, race, disability and national origin discrimination, sexual harassment, retaliatory discharge, ERISA violations, Family and Medical Leave Act violations, defamation, fraud, tortious interference, infliction of emotional distress, breach of contract, and wage and hour violations.

Kathryn handles matters in state and federal courts around the country, the Equal Employment Opportunity Commission, the Illinois Human Rights Commission, and other government agencies.

While Kathryn loves trials, she understands that not all of her clients share that passion. Her philosophy is to determine at the outset what her client’s goals are—be it early resolution, saving money, avoiding adverse publicity of defending a principle. She then takes whatever steps are necessary to achieve those goals. In some situations, the client’s interests are best served by mediating a case immediately and arriving at a settlement. In other cases, the client’s aims are best achieved by a jury trial.

Kathryn also counsels clients about a wide variety of matters with a view to avoiding costly litigation. This proactive approach helps clients avoid disputes and legal fees.