Public Act 103-0539

HB3129 Enrolled LRB103 30957 SPS 57530 b

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 5, 10, 15, 20, and 30 as follows:

(820 ILCS 112/5)

Sec. 5. Definitions. As used in this Act:

"Director" means the Director of Labor.

"Department" means the Department of Labor.

"Employee" means any individual permitted to work by an

employer.

"Employer" means an individual, partnership, corporation,

association, business, trust, person, or entity for whom

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.

"Pay scale and benefits" means the wage or salary, or the

wage or salary range, and a general description of the

benefits and other compensation, including, but not limited

to, bonuses, stock options, or other incentives the employer

reasonably expects in good faith to offer for the position,

set by reference to any applicable pay scale, the previously

determined range for the position, the actual range of others

currently holding equivalent positions, or the budgeted amount

for the position, as applicable.

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

(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 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 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 substantially

similar 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, provided that the factor:

(A) is not based on or derived from a differential

in compensation based on race or another protected

characteristic;

(B) is job-related with respect to the position

and consistent with a business necessity; and

(C) accounts for the differential.

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, salary, benefits, or other compensation. An employer

may, however, 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 that information without prior

written consent from the employee whose information is sought

or requested.

(b-5) It is unlawful for an employer or employment agency,

or employee or agent thereof, to (1) screen job applicants

based on their current or prior wages or salary histories,

including benefits or other compensation, by requiring that

the wage or salary history of an applicant satisfy minimum or

maximum criteria, (2) request or require a wage or salary

history as a condition of being considered for employment, 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 (3)

request or require that an applicant disclose wage or salary

history as a condition of employment.

(b-10) It is unlawful for an employer to seek the wage or

salary history, including benefits or other compensation, of a

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.

(b-15) Nothing in subsections (b-5) and (b-10) shall be

construed to prevent an employer or employment agency, or an

employee or agent thereof, from:

(1) providing information about the wages, benefits,

compensation, or salary offered in relation to a position;

or

(2) engaging in discussions with an applicant for

employment about the applicant's expectations with respect

to wage or salary, benefits, and other compensation,

including unvested equity or deferred compensation that

the applicant would forfeit or have canceled by virtue of

the applicant's resignation from the applicant's current

employer. If, during such discussion, the applicant

voluntarily and without prompting discloses that the

applicant would forfeit or have canceled by virtue of the

applicant's resignation from the applicant's current

employer unvested equity or deferred compensation, an

employer may request the applicant to verify the aggregate

amount of such compensation by submitting a letter or

document stating the aggregate amount of the unvested

equity or deferred compensation from, at the applicant's

choice, one of the following: (1) the applicant's current

employer or (2) the business entity that administers the

funds that constitute the unvested equity or deferred

compensation.

(b-20) An employer is not in violation of subsections

(b-5) and (b-10) when a job applicant voluntarily and without

prompting discloses his or her current or prior wage or salary

history, including benefits or other compensation, on the

condition that the employer does not consider or rely on the

voluntary disclosures as a factor in determining whether to

offer a job applicant employment, in making an offer of

compensation, or in determining future wages, salary,

benefits, or other compensation.

(b-25) It is unlawful for an employer with 15 or more

employees to fail to include the pay scale and benefits for a

position in any specific job posting. The inclusion of a

hyperlink to a publicly viewable webpage that includes the pay

scale and benefits satisfies the requirements for inclusion

under this subsection. If an employer engages a third party to

announce, post, publish, or otherwise make known a job

posting, the employer shall provide the pay scale and

benefits, or a hyperlink to the pay scale and benefits, to the

third party and the third party shall include the pay scale and

benefits, or a hyperlink to the pay scale and benefits, in the

job posting. The third party is liable for failure to include

the pay scale and benefits in the job posting, unless the third

party can show that the employer did not provide the necessary

information regarding pay scale and benefits. An employer

shall announce, post, or otherwise make known all

opportunities for promotion to all current employees no later

than 14 calendar days after the employer makes an external job

posting for the position, except for positions in the State of

Illinois workforce designated as exempt from competitive

selection. Nothing in this subsection requires an employer to

make a job posting. Posting of a relevant and up to date

general benefits description in an easily accessible, central,

and public location on an employer's website and referring to

this posting in the job posting shall be deemed to satisfy the

benefits posting requirement under this subsection. This

subsection only applies to positions that (i) will be

physically performed, at least in part, in Illinois or (ii)

will be physically performed outside of Illinois, but the

employee reports to a supervisor, office, or other work site

in Illinois. Nothing in this subsection prohibits an employer

or employment agency from asking an applicant about his or her

wage or salary expectations for the position the applicant is

applying for. An employer or employment agency shall disclose

to an applicant for employment the pay scale and benefits to be

offered for the position prior to any offer or discussion of

compensation and at the applicant's request, if a public or

internal posting for the job, promotion, transfer, or other

employment opportunity has not been made available to the

applicant. This subsection shall only apply to job postings

that have been posted after the effective date of this

amendatory Act of the 103rd General Assembly.

(b-30) An employer or an employment agency shall not

refuse to interview, hire, promote, or employ, and shall not

otherwise retaliate against, an applicant for employment or an

employee for exercising any rights under subsection (b-25).

(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;

(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 or salary history

inquiry.

(Source: P.A. 101-177, eff. 9-29-19; 102-277, eff. 1-1-22.)

(820 ILCS 112/15)

Sec. 15. Enforcement.

(a) The Director or his or her authorized representative

shall administer and enforce the provisions of this Act. The

Director of Labor shall adopt rules necessary to administer

and enforce this Act.

(b) An employee, or former employee , or, for the purposes

of a violation of subsection (b-25) of Section 10, any person

that claims to be aggrieved by a violation of that subsection,

may file a complaint with the Department alleging a violation

of this Act by submitting a signed, completed complaint form.

All complaints shall be filed with the Department within one

year from the date of the relevant violation underpayment.

(c) The Department has the power to conduct investigations

in connection with the administration and enforcement of this

Act and the authorized officers and employees of the

Department are authorized to investigate and gather data

regarding the wages, hours, and other conditions and practices

of employment in any industry subject to this Act, and may

enter and inspect such places and such records at reasonable

times during regular business hours, question the employees

and investigate the facts, conditions, practices, or matters

as he or she may deem necessary or appropriate to determine

whether any person has violated any provision of this Act, or

which may aid in the enforcement of this Act.

(d) The Department may refer a complaint alleging a

violation of this Act to the Department of Human Rights for

investigation if the subject matter of the complaint also

alleges a violation of the Illinois Human Rights Act and the

Department of Human Rights has jurisdiction over the matter.

When a complaint is referred to the Department of Human Rights

under this subsection, the Department of Human Rights shall

also file the complaint under the Illinois Human Rights Act

and be the agency responsible for investigating the complaint.

The Department shall review the Department of Human Rights'

investigation and findings to determine whether a violation of

this Act has occurred or whether further investigation by the

Department is necessary and take any necessary or appropriate

action required to enforce the provisions of this Act. The

Director of Labor and the Department of Human Rights shall

adopt joint rules necessary to administer and enforce this

subsection.

(Source: P.A. 98-1051, eff. 1-1-15.)

(820 ILCS 112/20)

Sec. 20. Recordkeeping requirements. An employer subject

to any provision of this Act shall make and preserve records

that document the name, address, and occupation of each

employee, the wages paid to each employee, the pay scale and

benefits for each position, the job posting for each position,

and any other information the Director may by rule deem

necessary and appropriate for enforcement of this Act. An

employer subject to any provision of this Act shall preserve

those records for a period of not less than 5 years and shall

make reports from the records as prescribed by rule or order of

the Director, unless the records relate to an ongoing

investigation or enforcement action under this Act, in which

case the records must be maintained until their destruction is

authorized by the Department or by court order.

(Source: P.A. 96-467, eff. 8-14-09.)

(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 or 11 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),

(b-10), or (b-20) 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), (b-10), or (b-20) 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, except for a violation of

subsection (b-25) of Section 10, 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 between 4 and 99 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.

(3) An employer with 100 or more employees who

violates any Section of this Act except for Section 11

shall be fined up to $10,000 per employee affected. An

employer with 100 or more employees that is a business as

defined under Section 11 and commits a violation of

Section 11 shall be fined up to $10,000.

Before any imposition of a penalty under this subsection,

an employer with 100 or more employees who violates item (b) of

Section 11 and inadvertently fails to file an initial

application or recertification shall be provided 30 calendar

days by the Department to submit the application or

recertification.

An employer or person who violates subsection (b), (b-5),

(b-10), (b-20), or (c) of Section 10 is subject to a civil

penalty not to exceed $5,000 for each violation for each

employee affected.

(c-5) The Department may initiate investigations of

alleged violations of subsection (b-25) of Section 10 upon

receiving a complaint from any person that claims to be

aggrieved by a violation of that subsection or at the

Department's discretion. Any person that claims to be

aggrieved by a violation of subsection (b-25) of Section 10

may submit a complaint of an alleged violation of that

subsection to the Department within one year after the date of

the violation. If the Department has determined that a

violation has occurred, it shall issue to the employer a

notice setting forth the violation, the applicable penalty as

described in subsections (c-10) and (c-15), and the period to

cure the violation as described in subsection (c-10).

(c-7) A job posting found to be in violation of subsection

(b-25) of Section 10 shall be considered as one violating job

posting regardless of the number of duplicative postings that

list the job opening.

(c-10) The penalties for a job posting or batch of

postings that are active at the time the Department issues a

notice of violation for violating subsection (b-25) of Section

10 are as follows:

(1) For a first offense, following a cure period of 14

days to remedy the violation, a fine not to exceed $500 at

the discretion of the Department. A first offense may be

either a single job posting that violates subsection

(b-25) of Section 10 or multiple job postings that violate

subsection (b-25) of Section 10 and are identified at the

same time by the Department. The Department shall have

discretion to waive any civil penalty under this

paragraph.

(2) For a second offense, following a cure period of 7

days to remedy the violation, a fine not to exceed $2,500

at the discretion of the Department. A second offense is a

single job posting that violates subsection (b-25) of

Section 10. The Department shall have discretion to waive

any civil penalty under this paragraph.

(3) For a third or subsequent offense, no cure period,

a fine not to exceed $10,000 at the discretion of the

Department. A third or subsequent offense is a single job

posting that violates subsection (b-25) of Section 10. The

Department shall have discretion to waive any civil

penalty under this paragraph. If a company has had a third

offense, it shall incur automatic penalties without a cure

period for a period of 5 years, at the completion of which

any future offense shall count as a first offense. The

5-year period shall restart if, during that period, an

employer receives a subsequent notice of violation from

the Department.

(c-15) The penalties for a job posting or batch of job

postings that are not active at the time the Department issues

a notice of violation for violating subsection (b-25) of

Section 10 are as follows:

(1) For a first offense, a fine not to exceed $250 at

the discretion of the Department. A first offense may be

either a single job posting that violates subsection

(b-25) of Section 10 or multiple job postings that violate

subsection (b-25) of Section 10 and are identified at the

same time by the Department. The Department shall have

discretion to waive any civil penalty under this

paragraph.

(2) For a second offense, a fine not to exceed $2,500

at the discretion of the Department. A second offense is a

single job posting that violates subsection (b-25) of

Section 10. The Department shall have discretion to waive

any civil penalty under this paragraph.

(3) For a third or subsequent offense, a fine not to

exceed $10,000 at the discretion of the Department. A

third or subsequent offense is a single job posting that

violates subsection (b-25) of Section 10. The Department

shall have discretion to waive any civil penalty under

this paragraph.

For the purposes of this subsection, the Department,

during its investigation of a complaint, shall make a

determination as to whether a job posting is not active by

considering the totality of the circumstances, including, but

not limited to: (i) whether a position has been filled; (ii)

the length of time a posting has been accessible to the public;

(iii) the existence of a date range for which a given position

is active; and (iv) whether the violating posting is for a

position for which the employer is no longer accepting

applications.

(d) In determining the amount of the penalty under this

Section, 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. 101-177, eff. 9-29-19; 102-36, eff. 6-25-21.)