Legislative Update: Illinois is the Latest State to Join Nationwide Trend of Salary History Ban Laws

Orrick’s Equal Pay Pulse has been tracking the nationwide wave of salary history bans in recent years.  A growing number of states and territories now have laws restricting the use of salary history information, including Alabama, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Jersey, New York, North Carolina, Oregon, Puerto Rico, Vermont, and Washington.  Illinois became the latest state to catch this wave with a recent amendment to the Illinois Equal Pay Act of 2003.

Legislative History:

In 2017 and 2018, the Illinois legislature passed bills banning employers from inquiring about salary histories.  However, each time, these bills were ultimately vetoed by former Governor Bruce Rauner.

This January, on his first day in office, Illinois’ new governor, Governor J.B. Pritzker, signed an executive order requiring the Department of Central Management Services and the Department of Human Rights to review the State’s pay plan and “eliminate bias generated by asking employees for salary history.”  Representative Anna Moeller, a co-sponsor of the previously vetoed salary history bans, subsequently introduced HB 834 to the House, which sought to amend the Illinois Equal Pay Act of 2003.  The House passed HB 834 in March, the Senate passed the bill in May, and Governor J.B. Pritzker signed the bill into law on July 31, 2019.  The amendments will take effect soon on September 29, 2019.

Illinois Salary History Ban:

These amendments to the Illinois Equal Pay Act of 2003 prohibit employers and employment agencies from:

  1. Requiring 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;
  2. Screening job applicants based on their current or prior wages or salary histories;
  3. Requesting or requiring a wage or salary history as a condition of being considered for employment, being interviewed, continuing to be considered for an offer of employment, an offer of employment, or an offer of compensation;
  4. Requesting or requiring that an applicant disclose wage or salary history as a condition of employment;
  5. Seeking the wage or salary history, including benefits or other compensation, of a job applicant from any current or former employer; and
  6. Terminating or otherwise discriminating against an individual because the individual failed to comply with a wage or salary history inquiry.

Employers who violate these amendments may face compensatory damages, injunctive relief, special damages, civil penalties, costs, and attorneys’ fees.

Next Steps:

These amendments go into effect shortly on September 29, 2019.  The amendments still allow employers to provide information about the wages, benefits, compensation, or salary offered in relation to a position, and engage in discussions with the applicant about the applicant’s expectations with respect to wage or salary, benefits, and other compensation.  However, employers should be aware of the prohibitions listed above.  In the coming weeks, employers should review their applications and recruiting materials to ensure they do not contain any prohibited contacts, waivers, screenings, or questions.