Section 320.100  Purpose and Scope

This Part shall apply to actions arising under the Equal Pay Act of 2003 [820 ILCS 112] administered under the jurisdiction of the Director of the Illinois Department of Labor and the Illinois Department of Labor.

(Source:  Amended at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.110  Application of the Act

In areas where the State and federal government have concurrent powers under their respective statute, the stricter of the two laws shall prevail.

(Source:  Amended at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.120  Definitions

“Act” means the Equal Pay Act of 2003 [820 ILCS 112].

"Authorized agent" means an employee of a business with knowledge of pay practices and who has been designated by the corporate officers of the business to submit information to the Department as required by the Act.  Authorized agent does not include any outside or third-party consultant or vendor who serves the business.

"Average compensation" means the average wages for a specific occupation in the State of Illinois as determined by the most recent U.S. Bureau of Labor Statistics State Occupational Employment and Wage Estimates publication.

“Complaint” means an allegation of a violation of the Act filed with or initiated by the Department.

“Complainant” means a person who files a complaint, including the Department in cases initiated by the Department.

“Department” means the Illinois Department of Labor. [820 ILCS 112/5]

“Director” means the Director of the Illinois Department of Labor or a duly authorized representative of the Director. [820 ILCS 112/5]

“Effort” means the physical or mental exertion needed for the performance of a job.  Job factors that cause mental fatigue and stress, as well as those factors that alleviate fatigue, are to be considered in determining the effort required for the job.  Effort encompasses the total requirements of the job.  Occasional or sporadic performance of an activity that may require extra physical or mental exertion is not alone sufficient to justify a finding of unequal or equal effort.

“Employee” means any individual permitted to work by an employer. [820 ILCS 112/5]

“Employer” means an individual, partnership, corporation, association, business, trust, person, or entity for whom 4 or more 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. [820 ILCS 112/5]

“Equal Pay Registration Certificate” means a certificate issued by the Department to a business in accordance with the requirements of Section 11 of the Act.

"Filing year" means any calendar year in which a business is due to submit its Equal Pay Registration Certificate application, as determined by the due date assigned to the business by the Department, whether the business is applying for its initial certification or a recertification. The filing year is the year immediately after the payroll year.

“Merit system” means an established, bona fide, uniform and objective system that rewards an employee with promotion, bonus, increased pay or other advantages based on competence, expertise, proficiency and human relations.

"Minority" means a minority person as defined in the Business Enterprise for Minorities, Women, and Persons with Disabilities Act.  [30 ILCS 575] 

"Payroll year" means the complete calendar year (January 1-December 31) upon which the payroll data in the business' Equal Pay Registration Certificate application is based. The payroll year is the year immediately preceding the filing year.

“Respondent” means an employer against whom a complaint is filed.

“Responsibility” means the degree of accountability required in the performance of a job.  Minor or occasional responsibility added to an employee’s duties that are not of significant consequence or importance will not justify a finding of unequal or equal responsibility.

“Seniority system” means a system that gives preference to employees based on years of service.

“Similar working conditions” means the surroundings and hazards, including the frequency and intensity of such conditions.  Surroundings measure the elements, such as toxic chemicals or fumes, regularly encountered by an employee.  Hazards take into account the physical hazards regularly encountered by an employee.  Slight or inconsequential differences in working conditions that are not usually taken into account by employers or in collective bargaining in setting wage rates do not justify a differential in pay.  The method used for testing this requirement is flexible. The mere fact that jobs are in different departments of a workplace or performed in different locations will not necessarily mean that the jobs are performed under dissimilar working conditions.

“Skill” means experience, training, education and ability.  Possession of a skill not needed to meet the requirements of the job cannot be considered in making a determination regarding equality of skill.

“Substantially similar work” means comparable work on jobs with comparable requirements related to equal skill, effort and responsibility. Substantially similar is not dependent on a job classification or title but depends rather on actual job requirements and genuine differences in how work is performed.

“Wages”, means any compensation made to an employee as remuneration for employment regardless of whether paid periodically or deferred until a later date.  Compensation includes but is not limited to: wages, salary, vacation pay, sick leave, holiday pay, overtime pay, premium pay, and other benefits such as health insurance, life insurance, disability insurance, commission, draw payments, pension and profit sharing, expenses, bonus, uniform cleaning allowance, hotel accommodations, use of vehicle, gasoline allowance, cafeteria plan and educational benefits.  

“Workplace” means a distinct physical place of business rather than an entire business or enterprise that may include several separate places of business.

(Source:  Amended at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.130  Independent Contractor Exemption

a)         As used in this Part, the term “employee” shall not include any individual:

1)         who has been and will continue to be free from control and direction over the performance of the individual’s work, both under the contract of service with the employer and in fact; and

2)         who performs work that is either outside the usual course of business or is performed outside all the places of business of the employer unless the employer is in the business of contracting with third parties for the placement of employees; and

3)         who is an independently established trade, occupation, profession or business.

b)         “Control” means the existence of general control or right to general control, even though the details of the work are left to an individual’s judgment.

c)         “An independently established trade, occupation, profession or business” means the individual performing the services has a proprietary interest in such business, to the extent that the individual operates the business without hindrance from any other person and as the enterprise’s owner, may sell or otherwise transfer the business.

d)         All three conditions in subsection (a) must be satisfied for the independent contractor exemption to apply.

e)         An individual may be an employee without being entirely dependent upon the relationship with a specified employer for the individual's livelihood.  An individual engaged in other occupations may be an employee of a specified employer even though the individual only worked intermittently or part time.

f)         In determining whether the exemption applies, the Department shall consider the actual, rather than the alleged, relationship between a respondent and complainant.  Designations and terminology used by the parties, as well as the individual's status for tax purposes, are not controlling.

Section 320.140  Recordkeeping Requirements

a)         An employer subject to any provision of the Act shall make and preserve records that document the name, address, and occupation of each employee; the wages paid to each employee and any other forms of compensation provided by the employer; dates of hire, dates of promotion, dates of pay increases, and dates any other compensation was provided by the employer, if applicable, for each employee; and payroll records. 

b)         The employer shall also preserve any records made in the regular course of the business operation related to personnel records, employee qualifications for hire, promotion, transfer, discharge or other disciplinary action, wage rates, skills testing certifications, job evaluations, job descriptions, merit systems, seniority systems, written job offers, individual employment contracts, collective bargaining agreements, description of practices or other matters that describe or explain the basis for payment of any wage differential between employees of the opposite sex or the basis for payment of wages to any employee who is African-American at a rate less than the rate paid to employees who are not African-American by the same employer and that may be pertinent to a determination whether the differential or lower wage payment is based on a factor other than sex or race.

c)         The records required by subsections (a) and (b) shall be preserved and maintained for a period of not less than 5 years unless the records relate to an ongoing investigation or enforcement action under the Act, in which case the records must be maintained until their destruction is authorized by the Department or by court order.

(Source:  Amended at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.150  Incorporated and Referenced Materials

The following regulations and standards are incorporated in this Part. All incorporations by reference refer to the regulations, guidelines and standards on the date specified and do not include any editions or amendments subsequent to the date specified.

a)         Federal Regulations and Publications

1)         U.S. Bureau of Labor Statistics Standard Occupational Classification (SOC) System Revision for 2018, April 15, 2020.

2)         29 CFR 1602.7 through 1602.14, July 26, 1991.

3)         41 CFR 60-1.7(a), December 22, 1997.

b)         The following State statutes and rules are referenced in this Part:

1)         The Freedom of Information Act [5 ILCS 140]

2)         The Equal Pay Act of 2003 [820 ILCS 112]

3)         The Illinois Income Tax Act [35 ILCS 5]

4)         The Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575]

5)         The Illinois Human Rights Act [775 ILCS 5]

6)         The Equal Wage Act [820 ILCS 110]

7)         The Illinois Administrative Procedure Act [5 ILCS 100/Art. 10]

8)         Rules of Procedure in Administrative Hearings (56 Ill. Adm. Code 120)

9)         Joint Rules of the Department of Labor and Department of Human Rights:  Rules on Investigation of Equal Pay Act Cases (56 Ill. Adm. Code 325)

c)         The following federal laws are referenced in this Part:

1)         29 U.S.C. 2

2)         Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)

3)         The Equal Pay Act of 1963 (29 U.S.C. 201 et seq.)

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.200  Persons Who May File a Complaint

An employee or former employee may file a complaint alleging a violation of the Act by submitting a signed, completed complaint form.  The Department may also initiate an investigation.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.210  Contents and Time Limit for Filing

a)         A complaint shall be in such detail as to substantially apprise the parties of the dates, place and facts with respect to the alleged violation of the Act.  Each complaint shall contain the following information:

1)         the full name and address of the complainant;

2)         the full name and address of each respondent;

3)         a statement of the facts alleged to constitute a violation under the Act, including the dates and place of the alleged violation;

4)         a statement of each specific harm the complainant has suffered as a consequence of the alleged violation;

5)         complainant's signature, including date of signing; and

6)         a statement as to any other action, civil or criminal, instituted in any other forum, and as to any pending administrative proceeding based on the same violation as alleged in the complaint, together with a statement as to the status or disposition of the other action.

b)         All complaints and amendments shall be filed by U.S. mail or personal delivery with the Department's Chicago office within one year from the date of the underpayment.  The complaint shall be deemed filed as of the date of the postmark or as it is date stamped as received by the Department.

c)         Any complaint that fails to meet all the requirements set forth in subsection (a) may be accepted if it otherwise contains the information determined to be necessary for a proper investigation and review of the alleged violation contained in the complaint.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.220  Confidentiality

While the case is pending at the administrative level, the identity of the complainant shall be kept confidential unless the complainant requests otherwise.  This confidentiality provision does not apply in cases alleging retaliatory discharge or retaliatory discrimination under the Act, or to matters referred to the Department of Human Rights for an investigation under Section 15(d) of the Act.

(Source:  Amended at 40 Ill. Reg. 229, effective December 21, 2015)

Section 320.230  Incomplete Complaint

If the Department receives a written complaint from an individual that complies substantially with Section 320.210 but is lacking an element that still must be provided, the Department may accept and docket the complaint as an incomplete complaint.  The Department shall notify the complainant in writing of the elements that must be supplied.  If the complainant fails or refuses to perfect the complaint within 30 calendar days, the complaint may be dismissed pursuant to Section 320.500.

Section 320.240  Amendment of Complaint

a)         A complaint may be amended to cure technical defects or to set forth additional facts or allegations related to the subject matter of the original complaint.  The amendments, if timely filed pursuant to Section 320.210, shall relate back to the original filing date.  

b)         A complaint may be amended to substitute or name additional respondents.  The amendment shall relate back to the original filing date, if timely filed pursuant to Section 320.210, and if at the time of the amendment a separate complaint could have been timely filed against the additional respondent or the additional respondent had timely notice of the original complaint and the fact that it might be involved in that complaint.  Mere misnomer of a party may be cured at any time. 

c)         If a party dies while the proceedings are pending, the complaint may be amended to substitute the legal representative, or any other person with a legally recognized interest in the decedent's estate, for the deceased.

d)         The Department shall provide notice of the substance of any amendment to a complaint to all parties.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.250  Withdrawal of Complaint

A complaint may be withdrawn at any time prior to issuance of a notice dismissing the complaint or filing of a court action based on the complaint.  A complainant’s request to withdraw a complaint shall be in writing and signed by the complainant and shall specifically reference the Department’s complaint number.  The Department shall grant the request if it is shown that the request is made voluntarily.   After the Department’s review of the withdrawal request, the complaint may be closed and the Department will notify all parties in writing.  Withdrawal does not preclude the Department from pursuing a complaint on its own motion based on the same facts.

Section 320.300  Jurisdiction

a)         At the time of filing, the Department shall determine initially whether the allegations in the complaint sufficiently state a claim under the Act so that the Department can proceed with the investigation. 

b)         If, at the time of filing, or at any subsequent time, it is determined that there is a lack of jurisdiction, the complaint shall be dismissed.  All parties shall be notified of the dismissal pursuant to Section 320.500.

c)         If, at the time of filing, or at any subsequent time while the matter is pending with the Department of Labor, it is determined that the subject matter of the complaint also alleges a violation of the Illinois Human Rights Act, the Department may refer the complaint to the Department of Human Rights to be processed pursuant to 56 Ill. Adm. Code 325 (Joint rules of the Departments of Labor and Human Rights on the investigation of Equal Pay Act cases).

(Source:  Amended at 40 Ill. Reg. 229, effective December 21, 2015)

Section 320.310  Investigations Except Those Under Section 11 of the Act

a)         After the Department determines jurisdiction and that the matter will not be referred to the Department of Human Rights under 56 Ill. Adm. Code 325, the Department shall conduct an investigation to determine whether reasonable cause exists to believe a violation under the Act has occurred.  Within 30 business days after receipt of the complaint, the Department shall provide the respondent with a written notice of investigation stating the substance of the alleged violation and giving the respondent an opportunity to respond to the allegation and present any information the respondent wishes the Department to consider in its investigation of the alleged violation.  The respondent must submit such response to the Department within 30 business days after receipt of the notice of investigation. 

b)         The Department is authorized to investigate and gather data and records regarding employee wages and hours, and other conditions and practices of employment of the respondent, and may enter the respondent's premises to inspect such records at reasonable times during regular business hours; question the respondent's employees; and investigate the facts, conditions, practices, or matters as the Department may deem necessary or appropriate to determine whether the respondent has violated the Act.  Investigations may also include written or oral inquiries, field visits, subpoenas, conferences, and interviews, or any investigation method or combination of methods deemed suitable in the discretion of the Department or authorized by the Act.  In no case will the Department review more than 5 years prior to the date the complaint was filed.

c)         If during the investigation a respondent refuses to cooperate, the Director may either make a finding of reasonable cause or issue subpoenas to compel the attendance of respondent witnesses or the production of documents.

d)         Whenever a decision is made after an investigation conducted by the Department of Human Rights and the Department of Labor adopts that decision, 56 Ill. Adm. Code 325 supersedes this Part and shall control as to further procedural actions and remedies available to the parties.  If the Department of Labor does not adopt the Department of Human Rights' decision, then this Part 320 applies and controls as to further procedural actions and remedies available to the parties.

e)         A complainant must promptly notify the Department of any address or telephone number change or a prolonged absence from the current address so that the complainant can be located.  A complainant must cooperate with the Department, provide necessary information and be available for interviews, conferences and hearings upon reasonable notice or request by the Department.  If a complainant cannot be located or does not respond to reasonable requests by the Department, the Department may dismiss the complaint pursuant to Section 320.500.

f)         The Director may, upon request or in the Director's discretion, withhold any witness statement or identity of any witness as confidential.

(Source:  Amended at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.320  Fact-Finding Conference

a)         As part of its investigation, the Department may convene a fact-finding conference in person or by telephone for the purpose of obtaining evidence, identifying the issues in dispute, ascertaining the positions of the parties and exploring the possibility of settlement.  The fact-finding conferences will be limited in scope to those issues the Department believes to be in question.

b)         Notice of the conference shall be given to all parties at least 10 calendar days prior to the conference and shall identify the individuals requested to attend on behalf of each party. 

c)         A party may be accompanied at a fact-finding conference by the party's attorney and by a translator if necessary.

d)         A Department investigator shall conduct the conference and control the proceedings.  No tape recordings, stenographic report or other verbatim record of the conference shall be made.  If any person fails to cooperate at the conference and becomes so disruptive or abusive that a full and fair conference cannot be conducted, the Department investigator shall exclude the person from the conference. 

e)         A party who appears at the conference exclusively through an attorney or other representative unfamiliar with the events at issue shall be deemed to have failed to attend, unless, with respect to a respondent, it establishes that it does not employ or control any person with knowledge of the events at issue.

f)         If a respondent or complainant refuses to attend a fact-finding conference, the Department shall make a determination based upon the evidence provided to the Department.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.330  Decision After Investigation

a)         At the conclusion of Department of Labor investigation, the Department must make one of the following findings:

1)         Reasonable cause found.  If the Department determines that there is reasonable cause to believe that a violation of the Act has occurred, it may:

A)        Seek a voluntary settlement agreement signed by the respondent that eliminates the unlawful practice and provides appropriate relief to the complainant; or

B)        Recommend the commencement of a civil action.

2)         No reasonable cause found.  If the Department determines that there is no reasonable cause to believe that a violation of the Act has occurred, the complaint will be dismissed pursuant to Section 320.500.

b)         Whenever a decision is made under this Section, a written notice must be provided to the parties stating the Department's findings and any applicable civil penalty assessments pursuant to Section 30(c) of the Act and advise the parties of the right to request review pursuant to Section 320.600.  The notice must also advise the parties of the right to bring a civil action as provided for in Section 30 of the Act.

(Source:  Amended at 40 Ill. Reg. 229, effective December 21, 2015)

Section 320.340  Enforcement Procedures

a)         The payment of back wages and other relief found due pursuant to Section 30 of the Act will be evidence of compliance with the provisions of the Act.  Payment shall be supervised, when possible, by the Director.

b)         The Director may require proof that the employees or former employees received all the back wages and other relief due pursuant to Section 30 of the Act.  Payment for back wages and other relief or penalties may be made to the Department using the State Treasurer's E-Pay program or any successor program, certified checks, cashier's checks, or money orders, made payable to the individual employees or the Department of Labor.

c)         If the respondent does not comply within 15 calendar days after the Director's demand, the Director may bring a civil action against the respondent as provided for in Section 30 of the Act.  Failure to timely comply may also subject the respondent to further penalties as provided for in Section 35(a) of the Act.

(Source:  Amended at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.400  Settlement

a)         At any time prior to the commencement of a civil action, the parties may settle the complaint on mutually agreeable terms.   Such an agreement will not affect the processing of a complaint made by any other complainant, the allegations of which are like or related to the individual allegations settled.

b)         If the Department finds that the complainant’s objections to a proposed settlement agreement are without merit or that the complainant is unavailable or unwilling to participate in settlement negotiations, or continuing the investigation would be otherwise detrimental, the Department may, in its discretion, dismiss the complaint pursuant to Section 320.500.

Section 320.500  Dismissal

a)         The Department shall serve upon the parties a written notice of dismissal of all or parts of a complaint.  The dismissal notice shall state the grounds for dismissal and advise the parties of the right to seek review by filing a written request within 15 calendar days after the date of the dismissal notice pursuant to Section 320.600.  The dismissal notice shall also advise the parties of the right to bring a private action within 5 years from the date of the underpayment.

b)         The dismissal may be based on, but not limited to, lack of reasonable cause that a violation under the Act occurred, lack of jurisdiction or complainant's failure to proceed pursuant to Section 320.310(c).  The notice of dismissal shall specify the manner in which the complainant has failed to proceed.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.510  Default

Except for good cause shown, the failure of a respondent to appear at an informal investigative hearing shall constitute a default.  

Section 320.520  Closure

When the Department becomes aware that there is a complaint pending in federal or State court containing some or all of the issues before the Department, it may close the issues of the complaint that are being litigated and continue to process the remaining issues.  If all issues are being litigated, then the entire complaint will be closed.  The Department shall notify all parties in writing that the complaint before the Department is closed.

Section 320.600  Request for Informal Investigative Hearing

Any party who contests a decision issued pursuant to Section 320.330 may file a written request for an informal investigative hearing within 15 calendar days after the Department's written notice of decision.  The request shall be marked Request for Informal Investigative Hearing on both the letter and the envelope and shall be delivered by U.S. mail or personal delivery to the Department's Chicago office.  The request must set forth reasons why the party believes the Department's findings are incorrect as a matter of law or fact or any newly discovered evidence the party could not have discovered during the course of the investigation.  Late submissions need not be considered by the Department.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.610  Convening an Informal Investigative Hearing

a)         The Department shall make an initial determination with respect to the legal and factual merits of a Request for Informal Investigative Hearing.  If the request presents a reasonable issue of law or fact, the Department may schedule an informal hearing before an Administrative Law Judge for purposes of obtaining evidence specific to the issue raised in the request and for which the hearing was granted.  At this hearing, all parties shall be afforded the opportunity to address the specific issue raised in the Request for Informal Investigative Hearing, including the Department's investigator who shall be afforded the opportunity to present the Department's investigative findings.

b)         A written notice of an informal investigative hearing shall be sent, not less than 10 calendar days prior to the date of the hearing, to the complainant and respondent, and may also be sent to those employees, former employees or witnesses covered by the investigation at issue.  Each notice shall identify the individual requested to attend and records or documents the party must produce at the hearing.

c)         If a request for an informal investigative hearing is denied, the Department will notify the party who filed the request of the Department's determination in writing.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.620  Continuances

Parties shall be prepared to proceed at hearing.  A request by one party for a continuance will be granted prior to the hearing if the request is in writing, the other party agrees and the Administrative Law Judge grants permission.  Otherwise, a request for a continuance must be made in person to the Administrative Law Judge at the time of hearing with proof that the party notified or attempted to notify the other party in advance of the hearing of the intent to ask for a continuance.  The continuance will be granted only upon a showing of good cause. Good cause may be shown by, but not limited to, the failure of the party to receive notice of the hearing, the inability of a party to produce a material witness or relevant evidence, the illness or death of a party or counsel, the sudden and unexpected unavailability of counsel, and the substitution of counsel.

(Source:  Amended at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.630  Application of the Rules of Evidence, Pleading and Procedure

When an Administrative Law Judge conducts an informal investigative hearing, the Administrative Law Judge is not bound by the rules of evidence or by any technical or formal rules of pleading or procedure.

Section 320.640  Attorneys and Witnesses at an Informal Investigative Hearing

A party may be accompanied at an informal investigative hearing by the party’s attorney and by a translator, if necessary.  The parties may bring witnesses to the hearing, but the Administrative Law Judge shall decide which witnesses shall be heard and the order in which they shall be heard.  The Administrative Law Judge may exclude witnesses and other persons from the hearing when they are not giving testimony.  The Administrative Law Judge shall conduct and control the proceedings.  No tape recordings, stenographic report or other verbatim record of the hearing shall be made.

Section 320.650  Contumacious Conduct

If any person becomes so disruptive or abusive that a full and fair hearing cannot be conducted, the Administrative Law Judge shall exclude the person from the proceeding.  The Administrative Law Judge may take any of the following actions: continue the hearing without the participation of the excluded individual; render a decision based upon the evidence previously presented; dismiss the complainant’s complaint; or strike the respondent’s response.

Section 320.660  Telephone Hearings

a)         Written requests to participate in an informal investigative hearing by telephone must be received by the Department’s Chicago office no later than seven calendar days prior to the hearing date.  The request shall be in writing and state a compelling reason why the party needs to participate by telephone and the name, address and telephone number of the person to be contacted.

b)         A party shall not consider its request granted unless the party receives written notice of the Department’s approval prior to the hearing date.

Section 320.700  Filing with Chief Administrative Law Judge

a)         A party may request review by the Chief Administrative Law Judge of a decision by the Department, including a decision made after an informal investigative hearing, to dismiss one or more allegations of a complaint for:

1)         Lack of substantial evidence;

2)         Lack of jurisdiction;

3)         No reasonable cause found;

4)         Failure of complainant to proceed; or

5)         Failure of complainant to accept a settlement offer.

b)         A respondent may request review by the Chief Administrative Law Judge of a decision by the Department, including a decision made after an informal investigative hearing, to issue a notice of default or a notice of reasonable cause found.

c)         A request for review must be delivered by U.S. mail or personal delivery to the Chief Administrative Law Judge at the Department's Chicago office within 15 calendar days after the decision.

d)         Neither the parties nor the Department may communicate directly or indirectly with the Chief Administrative Law Judge except in writing with copies to all parties and the Department.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.710  Contents of Request for Review

A request for review must be in writing and state the reasons the party disagrees with the Department’s decision.  The request must be prominently marked “REQUEST FOR REVIEW” on both the letter and the envelope.  A copy of the decision sought to be reviewed must be included with the request.  The request for review must set forth the reasons why the party believes the Department misconstrued the evidence or misapplied the law to the facts and any newly discovered evidence the party could not have discovered prior to the Department’s decision.

Section 320.720  Reply to Request for Review and Surreply

a)         When a party files a timely request for review, the Chief Administrative Law Judge may request other parties to submit a reply to the request for review.  The reply must be filed with the Chief Administrative Law Judge within 14 calendar days after the request by the Chief Administrative Law Judge.  The reply must be served on all other parties and proof of service must be provided to the Chief Administrative Law Judge or the reply cannot be considered.  A reply is limited to the issues raised in the request for review.  Whether a reply is needed or required is in the sole discretion of the Chief Administrative Law Judge.

b)         If a reply to a request for review is timely filed with the Chief Administrative Law Judge, the party requesting review may file a surreply to the reply with the Chief Administrative Law Judge.  Such surreply must be filed within 14 calendar days after the deadline for filing the reply.  The surreply must be served on all parties and proof of service must be provided to the Chief Administrative Law Judge or the surreply cannot be considered.  A surreply is limited to the issues raised in the reply.

Section 320.730  Extensions of Time

a)         For good cause shown, a party may request in writing an extension of time to file a request for review, reply or surreply.  Such an extension shall be no more than 14 calendar days.  Requests for extensions of time must be filed with the Chief Administrative Law Judge no later than the original deadline and will be granted if the Chief Administrative Law Judge determines that good cause has been shown.

b)         A determination for an extension of time shall be sent to all parties.

Section 320.740  Additional Investigation and Decision

At the conclusion of the request for review process, the Chief Administrative Law Judge must make one of the following findings:

a)         Additional investigation.  If the Chief Administrative Law Judge determines that additional investigation is needed, all parties will be notified of the decision.  All parties will be informed of the results of the additional investigation and provided copies of any documents submitted in response to the decision for additional investigation.  All parties will be given 14 calendar days to file a supplemental request for review, reply and surreply to address the results of the additional investigation.

b)         Decision.  If, after review of the Administrative Law Judge's decision to dismiss a complaint, issue a notice of default, or issue a reasonable cause finding, the Chief Administrative Law Judge determines that the Administrative Law Judge's decision should be sustained, a decision shall be entered stating the findings and reasons for the determination.  Otherwise, the Chief Administrative Law Judge shall determine whether the dismissal, default or reasonable cause finding should be vacated.  The Chief Administrative Law Judge will either return the complaint to the Department for additional investigation or issue a reasonable cause finding or a dismissal.  The Chief Administrative Law Judge shall serve the decision upon all parties to the complaint.

(Source:  Amended at 34 Ill. Reg. 19552, effective December 3, 2010)

Section 320.800  Purpose

This Subpart shall prescribe the process for businesses as defined in Section 320.810 to apply for and be issued an Equal Pay Registration Certificate under Section 11 of the Equal Pay Act of 2003 [820 ILCS 112]. 

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.810  Definitions

The following definitions shall apply for this Subpart H only:

"Application" means the form provided by the Department that a business must complete and submit to the Department in order to obtain an Equal Pay Registration Certificate or recertification of an Equal Pay Registration Certificate.

"Business" means any private employer who has 100 or more employees in the State of Illinois and is required to file an Annual Employer Information Report EEO-1 with the Equal Employment Opportunity Commission, but does not include the State of Illinois or any political subdivision, municipal corporation, or other governmental unit or agency. [820 ILCS 112/11]

"Compliance" means that, as of the date of application or recertification, the business either:

1)         has not had any final and non-appealable adverse judgment or final and non-appealable administrative ruling entered against it in the preceding two years under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e), the Equal Pay Act of 1963 (29 U.S.C. 206), the Illinois Human Rights Act (775 ILCS 5), the Equal Wage Act (820 ILCS 110), or the Equal Pay Act of 2003 (820 ILCS 112); or

2)         has corrected any final and non-appealable adverse judgment or final and non-appealable administrative ruling entered against it under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e), the Equal Pay Act of 1963 (29 U.S.C. 206), the Illinois Human Rights Act (775 ILCS 5), the Equal Wage Act (820 ILCS 110), or the Equal Pay Act of 2003 (820 ILCS 112). 

For purposes of Section 320.840(a)(3)(A), any business that has corrected a final and non-appealable adverse judgment or final and non-appealable administrative ruling entered against it shall submit evidence of the underlying judgment or ruling and the corrective measures undertaken by the employer business.

"Employee" means any person performing a service for a business under the Act whose base of operations, or if there is no base of operations, the place from which the service is directed or controlled, is located within the State of Illinois; or whose base of operations or the place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in the State of Illinois. [35 ILCS 5/304(a)(2)(B)(iii)]

"Job classification" or "job category" means an employee classification that appears on the EEO-1 report of the Equal Employment Opportunity Commission as required by section 709(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-8(c), and 29 CFR 1602.7 through 1602.14 and 41 CFR 60-1.7(a).

"Job title" means the title or role established for an employee by their employer that is used to identify and classify the employee internally within that workplace.

"Occupation" means any one of the Standard Occupational Classifications identified and published in the Standard Occupational Classification (SOC) System – Revision for 2018 published by the U.S. Bureau of Labor Statistics.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.820  Enrollment

a)         A business that is authorized to transact business in the State of Illinois on or before March 23, 2021 shall submit an enrollment form notifying the Department that the business is subject to Section 11 of the Act.  A business that becomes authorized to transact business in the State of Illinois on or after March 24, 2021 shall submit an enrollment form notifying the Department that the business is subject to Section 11 of the Act by January 1 of the calendar year immediately following the year in which the business becomes authorized to conduct business in the State of Illinois.  The enrollment form must include designated contact information for the business.  

b)         An enrollment form must be submitted via the Department's web-based submission portal found on its web site at https://www2.illinois.gov/idol/Pages/default.aspx.

c)         If the Department determines that a business that is not subject to the Act has submitted an enrollment form, the Department shall notify the business in writing that the business is not required to obtain an Equal Pay Registration Certificate.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.830  Assignment of Filing Date

a)         The Department will assign every business a date by which the business must submit an application and a list of the information outlined in Section 320.840(a) that the business must provide with its application.  The filing date shall be randomly assigned by the Department.  Each business will receive at least 120 calendar days’ notice of the filing date. The application due date is the date by which the application must be received by the Department.

b)         Once an application filing date is assigned by the Department, the business shall be enrolled in the Department's web-based portal as a business required to obtain an Equal Pay Registration Certificate.  The business shall be required to obtain an Equal Pay Registration Certificate every two years after the initial due date, unless the business has fewer than 100 employees on December 31 of the business's payroll year.  

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.840  Application for Certification; Recertification

A business that has employees in multiple locations or facilities in Illinois shall submit a single application to the Department regarding all of the business's operations in Illinois. [820 ILCS 112/11(c)(3)]

a)         An application shall include the following:

1)         A copy of the business's most recently filed Employer Information Report EEO-1 for all locations in the State of Illinois and for all employees as defined in this Subpart H, submitted in a text-searchable, sortable Microsoft Excel file or comma-separated values file format.

2)         A list of all employees during the payroll year (January 1 through December 31) immediately preceding the application due date, separated by gender, race, and ethnicity categories in a text-searchable, sortable Microsoft Excel file or comma-separated values file format, as well as any other information required by the Department on the application form. For the purposes of this report, wages shall be reported by either the mean hourly wage (for employees paid hourly wages) or annual mean wage (for salaried employees). The business may provide any other information it believes is relevant to explain any pay disparities amongst its employees.  [820 ILCS 112/11(c)(1)(A)]

3)         An Equal Pay Compliance Statement, signed by a corporate officer, legal counsel employed by the business, or authorized agent employed by the business, that certifies:

A)        that the business is in compliance with the Act and other relevant laws, including but not limited to, Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e), the Equal Pay Act of 1963 (29 U.S.C. 206(d)), the Illinois Human Rights Act [775 ILCS 5], and the Equal Wage Act [820 ILCS 110];

B)        that the average compensation for the business's female and minority employees is not consistently below the average compensation for its male and non-minority employees within each of the major job categories in the Employer Information Report EEO-1 Job Classification Guide for which an employee is expected to perform work, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, education or training, job location, use of a collective bargaining agreement, or other mitigating factors;

C)        that the business does not restrict employees of one sex to certain job classifications, and makes retention and promotion decisions without regard to sex. Businesses with positions for which sex is a bona fide occupational qualification, as defined in 29 CFR 1604.2, must provide a list of such positions with a short explanation of why sex is a bona fide occupational qualification for those positions;

D)        that wage and benefit disparities are corrected when identified to ensure compliance with the Acts in subsection (a)(3)(A)(i);

E)        how often wages and benefits are evaluated; and

F)         the approach the business takes in determining what level of wages and benefits to pay its employees; acceptable approaches include, but are not limited to, a wage and salary survey.  [820 ILCS 112/11(c)]

b)         An application shall be submitted to the Department via the Department's web-based submission portal found on its website at http://labor.illinois.gov.

c)         An application must be accompanied by a filing fee of $150, to be paid using the State Treasurer's E-Pay program or any successor program.

d)         After receiving an initial Equal Pay Registration Certificate, a business must recertify every two years by submitting to the Department an application, as described in this Subpart, with updated information.  The Department will notify the business that recertification is required and will provide the business with a recertification due date at least 180 calendar days before the recertification due date.  A business that has fewer than 100 employees on December 31 of the business's payroll year must notify the Department, in writing by the recertification due date, of the number of employees employed by the business on December 31 of the business's payroll year and shall not be required to recertify. [820 ILCS 112/11(c)]

e)         If a business discovers that it has provided incorrect or incomplete information in its application, that business shall submit to the Department a revised application with correct or complete information, along with a letter identifying the information that was amended.  A business that makes a correction shall not be subject to penalties if the incorrect or incomplete information was provided in good faith and without knowledge that such information was incorrect or incomplete.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.850  Issuance or Rejection

a)         Within 45 calendar days after receipt of an application, the Department will issue to the business an Equal Pay Registration Certificate or a Statement of Rejection stating why the application was rejected.

b)         A business has 30 calendar days from the date it receives the Statement of Rejection to cure any deficiencies in its application that led to the rejection and resubmit the revised application to the Department.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.860  Appeal

a)         A business may appeal a rejected application under Section 11 of the Act. An appeal shall be submitted to the Department in writing within 14 calendar days after a Statement of Rejection is received.  Appeals may be submitted via email to DOL.EPRC.APPEAL@illinois.gov, or mailed to: Illinois Department of Labor, ATTN: Con/Med, 160 North LaSalle Street, Suite C-1300, Chicago, Illinois, 60602. The request, if mailed, shall be prominently marked REQUEST FOR EPRC APPEAL on both the letter and the envelope; or, if emailed, shall contain the subject line REQUEST FOR EPRC APPEAL.

b)         Within 30 calendar days after receipt of an appeal, the Department will notify the business in writing of the Department's decision on the appeal.  If the appeal is granted, the Department will issue the business an Equal Pay Registration Certificate.  If the appeal is denied, the Department will provide the business with a notice stating the reason for the denial and a date by which the business must submit an amended application to the Department.

c)         If the Department denies the appeal, the business must submit to the Department an application with all identified deficiencies cured.  Once that application is received and contains all the information required by this Subpart, the Department will issue the business an Equal Pay Registration Certificate.  The business shall be in violation of the Act until all deficiencies in its application are cured and the application is approved by the Department.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.870  Suspension and Revocation

An Equal Pay Registration Certificate for a business may be suspended or revoked by the Department when a business:  

a)         fails to make a good faith effort to comply with the Act, Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e), the Equal Pay Act of 1963 (29 U.S.C. 206(d)), the Illinois Human Rights Act [775 ILCS 5], the Equal Wage Act [820 ILCS 110], or any other relevant laws.

b)         fails to make a good faith effort to comply with Section 11 of the Act; or

c)         has two or more violations of Section 11 of the Act or the statutes identified in subsection (a).  [820 ILCS 112/11(e)]  For purposes of this subsection, a violation means any final and non-appealable adverse judgment or final and non-appealable administrative ruling entered against the business since the most recent submission to the Department under this Act.

d)         As used in this Section, “good faith effort” means demonstrable efforts by the business to promote pay equity and combat employment discrimination, including but not limited to, internal compensation reviews, staff training, adoption of equal opportunity policies, and evidence that such policies were enforced through evaluation, investigation, and personnel action.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.875  Section 11 Investigations

a)         Prior to the suspension or revocation of an Equal Pay Registration Certificate, the Department shall initiate an investigation under Section 11(e) of the Act to determine whether reasonable cause exists to suspend or revoke to Equal Pay Registration Certificate.  Such investigations shall be initiated upon the Department's reasonable belief that a business's Equal Pay Registration Certificate may be suspended or revoked for any of the reasons listed in Section 320.870(a) through (c).

b)         The Department is authorized to conduct audits, interview workers, administer oaths, take or cause to be taken the depositions of witnesses, and require by subpoena the attendance and testimony of witnesses, and the production of personnel and compensation information, and all books, records, and other evidence relative to the matter under investigation.  A subpoena issued under this Section shall be signed and issued by the Director.  [820 ILCS 112/11]

c)         Within 30 business days after starting the investigation, the Department shall provide the business with a written notice of investigation stating the reason for the investigation under Section 320.870(a) through (c) and identifying the data in the application that merits the investigation.  The notice of investigation shall provide the business with an opportunity to respond to the notice and present any information the business wishes the Department to consider in its investigation.  The business must submit its response to the Department within 30 business days after receipt of the notice of investigation.

d)         If a business refuses to cooperate during the investigation, the Director may either make a finding of reasonable cause and suspend or revoke the business's Equal Pay Registration Certificate or issue subpoenas to compel the attendance of witnesses or the production of documents.

e)         The Director may, upon request or in the Director's discretion, withhold any witness statement or the identity of any witness as confidential.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.880  Initiation of Hearing

a)         A hearing pursuant to Section 11(e) and Section 11(i) of the Act shall be initiated upon the request of a party after the party has received a written decision of notice of suspension or revocation of the certificate or imposition of civil penalties. The request must be made in writing and mailed by certified mail or delivered in person to the Chief Administrative Law Judge at the Department’s Chicago office within 20 business days after receipt of the written decision of notice of suspension or revocation. The request shall be marked REQUEST FOR HEARING UNDER THE EQUAL PAY ACT on both the letter and the envelope. 

b)         Hearings pursuant to Section 11(e) and Section 11(i) of the Act shall be conducted pursuant to the provisions of Article 10 of the Illinois Administrative Procedure Act [5 ILCS 100/Art. 10] and the Department's Rules of Procedure in Administrative Hearings (56 Ill. Adm. Code 120).

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)

Section 320.890  Employee Request for Data

a)         A current employee of a business may request anonymized data regarding that employee's own job classification or title and the pay for that title or classification.  [820 ILCS 112/11(h)(3)] A request for data must be submitted in writing to the Department, and shall include the employee's name, date of hire, job title or classification, the dates for which the data is being requested, a signed affidavit swearing that the employee holds the specified job title at that business, and evidence that the employee currently holds the specified job title at that business.  Acceptable evidence includes, but is not limited to, pay stubs, work schedules, hire letters, work ID cards, business cards, and company website listings.  The Director may require multiple forms of evidence as necessary to demonstrate current employment.

b)         Upon request and if in the possession of the Department, the Department shall provide current and historical data from no more than 10 years prior to the date of the request to a requesting employee, based on the data timeframe specified in the request for employees working in the same county as the requestor.

(Source:  Added at 47 Ill. Reg. 155, effective December 22, 2022)