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.


LRB101 06243 TAE 51269 b

 

 

A BILL FOR

 

HB0881LRB101 06243 TAE 51269 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Equal Pay Act of 2003 is amended by changing
5Sections 10 and 30 and by adding Section 28 as follows:
 
6    (820 ILCS 112/10)
7    Sec. 10. Prohibited acts.
8    (a) No employer may discriminate between employees on the
9basis of sex by paying wages to an employee at a rate less than
10the rate at which the employer pays wages to another employee
11of the opposite sex for the same or substantially similar work
12on jobs the performance of which requires equal skill, effort,
13and responsibility, and which are performed under similar
14working conditions, except where the payment is made under:
15        (1) a seniority system;
16        (2) a merit system;
17        (3) a system that measures earnings by quantity or
18    quality of production; or
19        (4) a differential based on any other factor other
20    than: (i) sex or (ii) a factor that would constitute
21    unlawful discrimination under the Illinois Human Rights
22    Act.
23    No employer may discriminate between employees by paying

 

 

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1wages to an African-American employee at a rate less than the
2rate at which the employer pays wages to another employee who
3is not African-American for the same or substantially similar
4work on jobs the performance of which requires equal skill,
5effort, and responsibility, and which are performed under
6similar working conditions, except where the payment is made
7under:
8        (1) a seniority system;
9        (2) a merit system;
10        (3) a system that measures earnings by quantity or
11    quality of production; or
12        (4) a differential based on any other factor other
13    than: (i) race or (ii) a factor that would constitute
14    unlawful discrimination under the Illinois Human Rights
15    Act.
16    An employer who is paying wages in violation of this Act
17may not, to comply with this Act, reduce the wages of any other
18employee.
19    Nothing in this Act may be construed to require an employer
20to pay, to any employee at a workplace in a particular county,
21wages that are equal to the wages paid by that employer at a
22workplace in another county to employees in jobs the
23performance of which requires equal skill, effort, and
24responsibility, and which are performed under similar working
25conditions.
26    (b) It is unlawful for any employer to interfere with,

 

 

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1restrain, or deny the exercise of or the attempt to exercise
2any right provided under this Act. It is unlawful for any
3employer to discharge or in any other manner discriminate
4against any individual for inquiring about, disclosing,
5comparing, or otherwise discussing the employee's wages or the
6wages of any other employee, or aiding or encouraging any
7person to exercise his or her rights under this Act. It is
8unlawful for an employer to require an employee to sign a
9contract or waiver that would prohibit the employee from
10disclosing or discussing the employee's wage or salary.
11However, an employer may prohibit a human resources employee, a
12supervisor, or any other employee whose job responsibilities
13require or allow access to other employees' wage or salary
14information from disclosing such information without prior
15written consent from the employee whose information is sought
16or requested.
17    (b-5) It is unlawful for an employer to seek the wage or
18salary history of a prospective employee from the prospective
19employee or a current or former employer or to require that a
20prospective employee's prior wage or salary history meet
21certain criteria. This subsection does not apply if:
22        (1) the prospective employee's wage or salary history
23    is a matter of public record;
24        (2) the prospective employee is a current employee of
25    the employer and is applying for a position with the same
26    employer; or

 

 

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1        (3) a prospective employee has voluntarily disclosed
2    such information.
3    An employer may seek or confirm a prospective employee's
4wage or salary history after an offer of employment, with
5salary or wage, has been negotiated and made to the prospective
6employee.
7    (c) It is unlawful for any person to discharge or in any
8other manner discriminate against any individual because the
9individual:
10        (1) has filed any charge or has instituted or caused to
11    be instituted any proceeding under or related to this Act;
12        (2) has given, or is about to give, any information in
13    connection with any inquiry or proceeding relating to any
14    right provided under this Act; or
15        (3) has testified, or is about to testify, in any
16    inquiry or proceeding relating to any right provided under
17    this Act.
18(Source: P.A. 100-1140, eff. 1-1-19.)
 
19    (820 ILCS 112/28 new)
20    Sec. 28. Self-evaluation.
21    (a) An employer against whom an action is brought alleging
22a violation of subsection (a) of Section 10 and who, within the
23previous 3 years and prior to the commencement of the action,
24has completed a self-evaluation of the employer's pay practices
25in good faith and can demonstrate that reasonable progress has

 

 

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1been made toward eliminating wage differentials based on gender
2for the same or substantially similar work on jobs the
3performance of which requires equal skill, effort, and
4responsibility, and which are performed under similar working
5conditions, in accordance with that evaluation, shall have an
6affirmative defense to liability under subsection (a) of
7Section 10. For purposes of this subsection, an employer's
8self-evaluation may be of the employer's own design, so long as
9it is reasonable in detail and scope in light of the size of
10the employer, or may be consistent with standard templates or
11forms issued by the Department.
12    (b) An employer who has completed a self-evaluation in good
13faith within the previous 3 years and prior to the commencement
14of the action and can demonstrate that reasonable progress has
15been made toward eliminating wage differentials based on gender
16for the same or substantially similar work on jobs the
17performance of which requires equal skill, effort, and
18responsibility, and which are performed under similar working
19conditions, but cannot demonstrate that the evaluation was
20reasonable in detail and scope, shall not be entitled to an
21affirmative defense under this subsection, but shall not be
22liable for any civil fine for a violation of this Act in excess
23of:
24        (1) $500 per employee affected, if the employer has
25    fewer than 4 employees; or
26        (2) $2,500 per employee affected, if the employer has 4

 

 

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1    or more employees.
2    (c) Evidence of a self-evaluation or remedial steps
3undertaken in accordance with this Section shall not be
4admissible in any proceeding as evidence of a violation of this
5Act.
6    (d) An employer who has not completed a self-evaluation
7shall not be subject to any negative or adverse inference as a
8result of not having completed a self-evaluation.
9    (e) An employer who uses the affirmative defense under this
10Section is not precluded from using any other affirmative
11defense under this Act.
 
12    (820 ILCS 112/30)
13    Sec. 30. Violations; fines and penalties.
14    (a) If an employee is paid by his or her employer less than
15the wage to which he or she is entitled in violation of Section
1610 of this Act, the employee may recover in a civil action the
17entire amount of any underpayment together with interest and
18the costs and reasonable attorney's fees as may be allowed by
19the court and as necessary to make the employee whole. At the
20request of the employee or on a motion of the Director, the
21Department may make an assignment of the wage claim in trust
22for the assigning employee and may bring any legal action
23necessary to collect the claim, and the employer shall be
24required to pay the costs incurred in collecting the claim.
25Every such action shall be brought within 5 years from the date

 

 

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1of the underpayment. For purposes of this Act, "date of the
2underpayment" means each time wages are underpaid.
3    (b) The Director is authorized to supervise the payment of
4the unpaid wages owing to any employee or employees under this
5Act and may bring any legal action necessary to recover the
6amount of unpaid wages and penalties and the employer shall be
7required to pay the costs. Any sums recovered by the Director
8on behalf of an employee under this Section shall be paid to
9the employee or employees affected.
10    (c) Employers who violate any provision of this Act or any
11rule adopted under the Act are subject to a civil penalty for
12each employee affected as follows:
13        (1) An employer with fewer than 4 employees: first
14    offense, a fine not to exceed $500; second offense, a fine
15    not to exceed $2,500; third or subsequent offense, a fine
16    not to exceed $5,000.
17        (2) An employer with 4 or more employees: first
18    offense, a fine not to exceed $2,500; second offense, a
19    fine not to exceed $3,000; third or subsequent offense, a
20    fine not to exceed $5,000.
21    An employer or person who violates subsection (b) or (c) of
22Section 10 is subject to a civil penalty not to exceed $5,000
23for each violation for each employee affected.
24    (d) In determining the amount of the penalty, the
25appropriateness of the penalty to the size of the business of
26the employer charged and the gravity of the violation shall be

 

 

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1considered. The penalty may be recovered in a civil action
2brought by the Director in any circuit court.
3    (e) If an employee recovers unpaid wages under this Section
4and also files a complaint or brings an action under 29 U.S.C.
5Section 206(d) that results in additional recovery under
6federal law for the same violation, the employee shall return
7to the employer the amounts recovered under this Section or the
8amounts recovered under federal law, whichever is less.
9(Source: P.A. 99-418, eff. 1-1-16.)