Full Text of SB2038 103rd General Assembly
SB2038sam001 103RD GENERAL ASSEMBLY | Sen. Cristina H. Pacione-Zayas Filed: 3/24/2023
| | 10300SB2038sam001 | | LRB103 29069 SPS 59845 a |
|
| 1 | | AMENDMENT TO SENATE BILL 2038
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2038 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Equal Pay Act of 2003 is amended by | 5 | | changing Sections 20 and 30 and by adding Section 12 as | 6 | | follows: | 7 | | (820 ILCS 112/12 new) | 8 | | Sec. 12. Equal opportunities for employment. | 9 | | (a) As used in the Section, "wage or salary range" means | 10 | | the minimum and maximum wage or salary for a position set in | 11 | | good faith by reference to any applicable pay scale, the | 12 | | previously determined range for the position, the actual range | 13 | | of others currently holding equivalent positions, or the | 14 | | budgeted amount for the position, as applicable. The | 15 | | difference between the minimum and maximum of the wage or | 16 | | salary range provided by the employer or employment agency to |
| | | 10300SB2038sam001 | - 2 - | LRB103 29069 SPS 59845 a |
|
| 1 | | an employee or applicant is one factor relevant to the | 2 | | analysis of whether the wage or salary range has been set in | 3 | | good faith. | 4 | | (b) This Section covers positions that will be physically | 5 | | performed, at least in part, in Illinois, or a job, promotion, | 6 | | transfer, or other employment opportunity that will physically | 7 | | be performed outside of Illinois but the employee reports to a | 8 | | supervisor, office, or other work site in Illinois. | 9 | | (c) An employer or employment agency shall disclose in | 10 | | each public and internal posting for each job, promotion, | 11 | | transfer, or other employment opportunity the wage or salary, | 12 | | or the wage or salary range, and a general description of the | 13 | | benefits and other compensation to be offered for the job, | 14 | | promotion, transfer, or other employment opportunity. Nothing | 15 | | in the Section requires an employer or employment agency to | 16 | | create a public or internal posting for jobs, promotions, and | 17 | | transfers where none previously existed. | 18 | | (d) An employer or employment agency shall disclose to an | 19 | | applicant for employment the wage or salary, or the wage or | 20 | | salary range, and a general description of the benefits and | 21 | | other compensation to be offered for the job, promotion, | 22 | | transfer, or other employment opportunity prior to any offer | 23 | | or discussion of compensation and at any time at the | 24 | | applicant's request, if a public or internal posting for the | 25 | | job, promotion, transfer, or other employment opportunity has | 26 | | not been made available to the applicant. |
| | | 10300SB2038sam001 | - 3 - | LRB103 29069 SPS 59845 a |
|
| 1 | | (e) An employer and employment agency shall provide an | 2 | | employee the current wage or salary range and a general | 3 | | description of the benefits and other compensation for the | 4 | | position in which the employee is employed upon hire, | 5 | | promotion, or transfer and at least annually thereafter and | 6 | | upon the employee's request. | 7 | | (f) An employer and employment agency shall not refuse to | 8 | | interview, hire, promote, or employ, and shall not otherwise | 9 | | retaliate against, an applicant for employment or employee for | 10 | | exercising any rights under this Section. | 11 | | (g) This Section shall apply only to job postings that | 12 | | have been posted after the effective date of this amendatory | 13 | | Act of the 103rd General Assembly.
| 14 | | (820 ILCS 112/20)
| 15 | | Sec. 20. Recordkeeping requirements. An employer subject | 16 | | to any
provision of this
Act shall make and preserve records | 17 | | that document the name, address, and
occupation of each
| 18 | | employee or applicant , the wages paid to each employee or | 19 | | applicant, a statement confirming that the wage or salary, or | 20 | | the wage or salary range, and a general description of | 21 | | benefits and other compensation were disclosed to each | 22 | | employee or applicant for each employment opportunity, the | 23 | | actual information disclosed to each employee or applicant , | 24 | | and any other
information
the Director
may by rule deem | 25 | | necessary and appropriate for enforcement of this Act.
An |
| | | 10300SB2038sam001 | - 4 - | LRB103 29069 SPS 59845 a |
|
| 1 | | employer
subject to any provision of this Act shall preserve | 2 | | those records for a period
of not less than 5
years and shall
| 3 | | make reports from the records as prescribed by rule or order of | 4 | | the
Director, unless the records relate to an ongoing | 5 | | investigation or enforcement action under this Act, in which | 6 | | case the records must be maintained until their destruction is | 7 | | authorized by the Department or by court order.
| 8 | | (Source: P.A. 96-467, eff. 8-14-09.)
| 9 | | (820 ILCS 112/30)
| 10 | | Sec. 30. Violations; fines and penalties.
| 11 | | (a) If an employee is paid by his or her employer less than | 12 | | the wage to
which he or
she is entitled in
violation of Section | 13 | | 10 or 11 of this Act, the employee may recover in a civil | 14 | | action
the entire amount of any
underpayment together with | 15 | | interest, compensatory damages if the employee demonstrates | 16 | | that the employer acted with malice or reckless indifference, | 17 | | punitive damages as may be appropriate, injunctive relief as | 18 | | may be appropriate, and the costs and reasonable attorney's
| 19 | | fees as may be
allowed by the
court and as necessary to make | 20 | | the employee whole. At the request of the
employee or on a | 21 | | motion of the Director,
the Department may
make an assignment | 22 | | of the wage claim in trust for the assigning employee and
may | 23 | | bring any
legal action necessary to collect the claim, and the | 24 | | employer shall be required
to pay the costs
incurred in | 25 | | collecting the claim. Every such action shall be brought |
| | | 10300SB2038sam001 | - 5 - | LRB103 29069 SPS 59845 a |
|
| 1 | | within 5
years from the date
of the violation underpayment . | 2 | | For purposes of this Act, "date of the violation underpayment " | 3 | | means each time a violation occurs wages are underpaid .
| 4 | | (a-5) If an employer or employment agency violates | 5 | | subsection (b), (b-5), (b-10), or (b-20) of Section 10 or | 6 | | Section 12 , the employee or applicant may recover in a civil | 7 | | action any damages incurred, special damages not to exceed | 8 | | $10,000, injunctive relief as may be appropriate, and costs | 9 | | and reasonable attorney's fees as may be allowed by the court | 10 | | and as necessary to make the employee or applicant whole. If | 11 | | special damages are available, an employee or applicant may | 12 | | recover compensatory damages only to the extent such damages | 13 | | exceed the amount of special damages. Such action shall be | 14 | | brought within 5 years from the date of the violation. | 15 | | (a-10) Any individual who believes the employer or | 16 | | employment agency is in violation of Section 12 of this Act may | 17 | | file a complaint with the Department within one year after the | 18 | | date the individual learned of the violation. | 19 | | The Department may initiate an investigation, either on | 20 | | its own or upon receiving a complaint from an employee, | 21 | | applicant, or interested party. If, following an | 22 | | investigation, the Department determines that one or more | 23 | | violations has occurred, it shall send, via certified mail, | 24 | | notice to the employer of the violation or violations and | 25 | | information pertaining to the provisions of this Section and | 26 | | how the violation or violations might be cured. |
| | | 10300SB2038sam001 | - 6 - | LRB103 29069 SPS 59845 a |
|
| 1 | | Upon the first receipt of notice for one or multiple | 2 | | violations, an employer employing 4 or fewer employees shall | 3 | | be given an opportunity to cure the violation or violations | 4 | | within 14 days. Upon the first receipt of notice for one or | 5 | | multiple violations, an employer employing 5 or more employees | 6 | | shall be given an opportunity to cure the violation within 14 | 7 | | days. | 8 | | Upon the second receipt of notice for one or more | 9 | | subsequent violations, an employer employing 4 or fewer | 10 | | employees shall be given 7 days to cure the violation or | 11 | | violations. Upon the second receipt of notice for one or more | 12 | | subsequent violations, an employer employing 5 or more | 13 | | employees shall be penalized up to $10,000. | 14 | | Upon the third receipt of notice for one or more | 15 | | subsequent violations, and upon every subsequent notice, an | 16 | | employer shall be penalized, upon the receipt of such notice, | 17 | | for each individual violation. Employers employing 4 or fewer | 18 | | employees shall be penalized up to $5,000 for every violation. | 19 | | Employers employing 5 or more employees shall be penalized up | 20 | | to $10,000 for every violation. | 21 | | When applicable, a violation may be cured by adding the | 22 | | wage or salary range to the job posting, and updating existing | 23 | | applicants of that posted wage or salary range. The employer | 24 | | must send to the Department documentation of the employer | 25 | | having cured the violation. If the employer has not cured the | 26 | | violation within the relevant opportunity to cure period |
| | | 10300SB2038sam001 | - 7 - | LRB103 29069 SPS 59845 a |
|
| 1 | | provided in the notice of violation, such employer shall be | 2 | | subject to a penalty of $100 for each day they continue to | 3 | | violate the Act up to a maximum of $5,000 for employers | 4 | | employing 4 or fewer employees and a maximum of $10,000 for | 5 | | employers employing 5 or more employees. | 6 | | (a-15) The Department shall resolve violations that have | 7 | | been reported to the Department after the allegedly violating | 8 | | job posting is no longer active as follows: | 9 | | (1) employers who are entitled to a period to cure as | 10 | | described in subsection (a-10) shall receive notice that | 11 | | they were in violation of this Section and the | 12 | | consequences of subsequent violations; | 13 | | (2) employers who are no longer entitled to a cure | 14 | | period as described in subsection (a-10) because of | 15 | | previous violations shall receive a notice of violation | 16 | | along with a notice of the penalty owed to the Department. | 17 | | Penalties for employers receiving such notice shall be in | 18 | | conformance with those established in subsection (a-10). | 19 | | (b) The Director is authorized to supervise the payment of | 20 | | the unpaid wages under subsection (a) or damages under | 21 | | subsection (b), (b-5), (b-10), or (b-20) of Section 10 and | 22 | | Section 12
owing to any
employee or employees or applicants | 23 | | under this Act and may bring any legal action necessary
to | 24 | | recover the
amount of unpaid wages, damages, and penalties or | 25 | | to seek injunctive relief, and the employer or employment | 26 | | agency shall be required to pay
the costs. Any
sums recovered |
| | | 10300SB2038sam001 | - 8 - | LRB103 29069 SPS 59845 a |
|
| 1 | | by the Director on behalf of an employee or applicant under | 2 | | this
Section shall be
paid to the employee or employees or | 3 | | applicant or applicants affected.
| 4 | | (c) Except as provided in subsection (a-10) of this | 5 | | Section, employers or employment agencies that Employers who | 6 | | violate any provision of this Act or any rule
adopted under the | 7 | | Act are subject to a civil penalty for each employee or | 8 | | applicant affected as follows: | 9 | | (1) An employer or employment agency with fewer than 4 | 10 | | employees: first offense, a fine not to exceed $500; | 11 | | second offense, a fine not to exceed $2,500; third or | 12 | | subsequent offense, a fine not to exceed $5,000. | 13 | | (2) An employer or employment agency with between 4 | 14 | | and 99 employees: first offense, a fine not to exceed | 15 | | $2,500; second offense, a fine not to exceed $3,000; third | 16 | | or subsequent offense, a fine not to exceed $5,000. | 17 | | (3) An employer or employment agency with 100 or more | 18 | | employees who violates any Section of this Act except for | 19 | | Section 11 shall be fined up to $10,000 per employee | 20 | | affected. An employer with 100 or more employees that is a | 21 | | business as defined under Section 11 and commits a | 22 | | violation of Section 11 shall be fined up to $10,000. | 23 | | Before any imposition of a penalty under this subsection, | 24 | | an employer with 100 or more employees who violates item (b) of | 25 | | Section 11 and inadvertently fails to file an initial | 26 | | application or recertification shall be provided 30 calendar |
| | | 10300SB2038sam001 | - 9 - | LRB103 29069 SPS 59845 a |
|
| 1 | | days by the Department to submit the application or | 2 | | recertification. | 3 | | An employer or person who violates subsection (b), (b-5), | 4 | | (b-10), (b-20), or (c) of Section 10 is subject to a civil | 5 | | penalty not to exceed $5,000 for each violation for each | 6 | | employee affected. | 7 | | (d) In determining the amount of the penalty, the
| 8 | | appropriateness of the
penalty to the size of the business of | 9 | | the employer or employment agency charged and the gravity of
| 10 | | the violation shall
be considered. The penalty may be | 11 | | recovered in a civil action brought by the
Director in
any | 12 | | circuit court.
| 13 | | (Source: P.A. 101-177, eff. 9-29-19; 102-36, eff. 6-25-21.)
| 14 | | Section 99. Effective date. This Act takes effect January | 15 | | 1, 2024.".
|
|