Sen. Cristina H. Pacione-Zayas

Filed: 5/3/2023

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 3129

2    AMENDMENT NO. ______. Amend House Bill 3129 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Equal Pay Act of 2003 is amended by
5changing Sections 5, 10, 15, 20, and 30 as follows:
 
6    (820 ILCS 112/5)
7    Sec. 5. Definitions. As used in this Act:
8    "Director" means the Director of Labor.
9    "Department" means the Department of Labor.
10    "Employee" means any individual permitted to work by an
11employer.
12    "Employer" means an individual, partnership, corporation,
13association, business, trust, person, or entity for whom
14employees are gainfully employed in Illinois and includes the
15State of Illinois, any state officer, department, or agency,
16any unit of local government, and any school district.

 

 

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1    "Pay scale and benefits" means the wage or salary, or the
2wage or salary range, and a general description of the
3benefits and other compensation, including, but not limited
4to, bonuses, stock options, or other incentives the employer
5reasonably expects in good faith to offer for the position,
6set by reference to any applicable pay scale, the previously
7determined range for the position, the actual range of others
8currently holding equivalent positions, or the budgeted amount
9for the position, as applicable.
10(Source: P.A. 99-418, eff. 1-1-16.)
 
11    (820 ILCS 112/10)
12    Sec. 10. Prohibited acts.
13    (a) No employer may discriminate between employees on the
14basis of sex by paying wages to an employee at a rate less than
15the rate at which the employer pays wages to another employee
16of the opposite sex for the same or substantially similar work
17on jobs the performance of which requires substantially
18similar skill, effort, and responsibility, and which are
19performed under similar working conditions, except where the
20payment is made under:
21        (1) a seniority system;
22        (2) a merit system;
23        (3) a system that measures earnings by quantity or
24    quality of production; or
25        (4) a differential based on any other factor other

 

 

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1    than: (i) sex or (ii) a factor that would constitute
2    unlawful discrimination under the Illinois Human Rights
3    Act, provided that the factor:
4            (A) is not based on or derived from a differential
5        in compensation based on sex or another protected
6        characteristic;
7            (B) is job-related with respect to the position
8        and consistent with a business necessity; and
9            (C) accounts for the differential.
10    No employer may discriminate between employees by paying
11wages to an African-American employee at a rate less than the
12rate at which the employer pays wages to another employee who
13is not African-American for the same or substantially similar
14work on jobs the performance of which requires substantially
15similar skill, effort, and responsibility, and which are
16performed under similar working conditions, except where the
17payment is made under:
18        (1) a seniority system;
19        (2) a merit system;
20        (3) a system that measures earnings by quantity or
21    quality of production; or
22        (4) a differential based on any other factor other
23    than: (i) race or (ii) a factor that would constitute
24    unlawful discrimination under the Illinois Human Rights
25    Act, provided that the factor:
26            (A) is not based on or derived from a differential

 

 

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1        in compensation based on race or another protected
2        characteristic;
3            (B) is job-related with respect to the position
4        and consistent with a business necessity; and
5            (C) accounts for the differential.
6    An employer who is paying wages in violation of this Act
7may not, to comply with this Act, reduce the wages of any other
8employee.
9    Nothing in this Act may be construed to require an
10employer to pay, to any employee at a workplace in a particular
11county, wages that are equal to the wages paid by that employer
12at a workplace in another county to employees in jobs the
13performance of which requires equal skill, effort, and
14responsibility, and which are performed under similar working
15conditions.
16    (b) It is unlawful for any employer to interfere with,
17restrain, or deny the exercise of or the attempt to exercise
18any right provided under this Act. It is unlawful for any
19employer to discharge or in any other manner discriminate
20against any individual for inquiring about, disclosing,
21comparing, or otherwise discussing the employee's wages or the
22wages of any other employee, or aiding or encouraging any
23person to exercise his or her rights under this Act. It is
24unlawful for an employer to require an employee to sign a
25contract or waiver that would prohibit the employee from
26disclosing or discussing information about the employee's

 

 

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1wages, salary, benefits, or other compensation. An employer
2may, however, prohibit a human resources employee, a
3supervisor, or any other employee whose job responsibilities
4require or allow access to other employees' wage or salary
5information from disclosing that information without prior
6written consent from the employee whose information is sought
7or requested.
8    (b-5) It is unlawful for an employer or employment agency,
9or employee or agent thereof, to (1) screen job applicants
10based on their current or prior wages or salary histories,
11including benefits or other compensation, by requiring that
12the wage or salary history of an applicant satisfy minimum or
13maximum criteria, (2) request or require a wage or salary
14history as a condition of being considered for employment, as
15a condition of being interviewed, as a condition of continuing
16to be considered for an offer of employment, as a condition of
17an offer of employment or an offer of compensation, or (3)
18request or require that an applicant disclose wage or salary
19history as a condition of employment.
20    (b-10) It is unlawful for an employer to seek the wage or
21salary history, including benefits or other compensation, of a
22job applicant from any current or former employer. This
23subsection (b-10) does not apply if:
24        (1) the job applicant's wage or salary history is a
25    matter of public record under the Freedom of Information
26    Act, or any other equivalent State or federal law, or is

 

 

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1    contained in a document completed by the job applicant's
2    current or former employer and then made available to the
3    public by the employer, or submitted or posted by the
4    employer to comply with State or federal law; or
5        (2) the job applicant is a current employee and is
6    applying for a position with the same current employer.
7    (b-15) Nothing in subsections (b-5) and (b-10) shall be
8construed to prevent an employer or employment agency, or an
9employee or agent thereof, from:
10        (1) providing information about the wages, benefits,
11    compensation, or salary offered in relation to a position;
12    or
13        (2) engaging in discussions with an applicant for
14    employment about the applicant's expectations with respect
15    to wage or salary, benefits, and other compensation,
16    including unvested equity or deferred compensation that
17    the applicant would forfeit or have canceled by virtue of
18    the applicant's resignation from the applicant's current
19    employer. If, during such discussion, the applicant
20    voluntarily and without prompting discloses that the
21    applicant would forfeit or have canceled by virtue of the
22    applicant's resignation from the applicant's current
23    employer unvested equity or deferred compensation, an
24    employer may request the applicant to verify the aggregate
25    amount of such compensation by submitting a letter or
26    document stating the aggregate amount of the unvested

 

 

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1    equity or deferred compensation from, at the applicant's
2    choice, one of the following: (1) the applicant's current
3    employer or (2) the business entity that administers the
4    funds that constitute the unvested equity or deferred
5    compensation.
6    (b-20) An employer is not in violation of subsections
7(b-5) and (b-10) when a job applicant voluntarily and without
8prompting discloses his or her current or prior wage or salary
9history, including benefits or other compensation, on the
10condition that the employer does not consider or rely on the
11voluntary disclosures as a factor in determining whether to
12offer a job applicant employment, in making an offer of
13compensation, or in determining future wages, salary,
14benefits, or other compensation.
15    (b-25) It is unlawful for an employer with 15 or more
16employees to fail to include the pay scale and benefits for a
17position in any specific job posting. The inclusion of a
18hyperlink to a publicly viewable webpage that includes the pay
19scale and benefits satisfies the requirements for inclusion
20under this subsection. If an employer engages a third party to
21announce, post, publish, or otherwise make known a job
22posting, the third party is liable for failure to include the
23pay scale and benefits in the job posting, unless the third
24party can show that the employer did not provide the necessary
25information regarding pay scale and benefits. An employer
26shall announce, post, or otherwise make known all

 

 

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1opportunities for promotion to all current employees no later
2than 14 calendar days after the employer makes an external job
3posting for the position, except for positions in the State of
4Illinois workforce designated as exempt from competitive
5selection. Nothing in this subsection requires an employer to
6make a job posting. Posting of a relevant and up to date
7general benefits description in an easily accessible, central
8location on an employer's website and referring to this
9posting in the job posting shall be deemed to satisfy the
10benefits posting requirement under this subsection. This
11subsection only applies to positions that (i) will be
12physically performed, at least in part, in Illinois or (ii)
13will be physically performed outside of Illinois, but the
14employee reports to a supervisor, office, or other work site
15in Illinois. Nothing in this subsection prohibits an employer
16or employment agency from asking an applicant about his or her
17wage or salary expectations for the position the applicant is
18applying for. An employer or employment agency shall disclose
19to an applicant for employment the pay scale and benefits to be
20offered for the position prior to any offer or discussion of
21compensation and at the applicant's request, if a public or
22internal posting for the job, promotion, transfer, or other
23employment opportunity has not been made available to the
24applicant. This subsection shall only apply to job postings
25that have been posted after the effective date of this
26amendatory Act of the 103rd General Assembly.

 

 

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1    (b-30) An employer or an employment agency shall not
2refuse to interview, hire, promote, or employ, and shall not
3otherwise retaliate against, an applicant for employment or an
4employee for exercising any rights under subsection (b-25).
5    (c) It is unlawful for any person to discharge or in any
6other manner discriminate against any individual because the
7individual:
8        (1) has filed any charge or has instituted or caused
9    to be instituted any proceeding under or related to this
10    Act;
11        (2) has given, or is about to give, any information in
12    connection with any inquiry or proceeding relating to any
13    right provided under this Act;
14        (3) has testified, or is about to testify, in any
15    inquiry or proceeding relating to any right provided under
16    this Act; or
17        (4) fails to comply with any wage or salary history
18    inquiry.
19(Source: P.A. 101-177, eff. 9-29-19; 102-277, eff. 1-1-22.)
 
20    (820 ILCS 112/15)
21    Sec. 15. Enforcement.
22    (a) The Director or his or her authorized representative
23shall administer and enforce the provisions of this Act. The
24Director of Labor shall adopt rules necessary to administer
25and enforce this Act.

 

 

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1    (b) An employee or former employee may file a complaint
2with the Department alleging a violation of this Act by
3submitting a signed, completed complaint form. All complaints
4shall be filed with the Department within one year from the
5date of the violation underpayment.
6    (c) The Department has the power to conduct investigations
7in connection with the administration and enforcement of this
8Act and the authorized officers and employees of the
9Department are authorized to investigate and gather data
10regarding the wages, hours, and other conditions and practices
11of employment in any industry subject to this Act, and may
12enter and inspect such places and such records at reasonable
13times during regular business hours, question the employees
14and investigate the facts, conditions, practices, or matters
15as he or she may deem necessary or appropriate to determine
16whether any person has violated any provision of this Act, or
17which may aid in the enforcement of this Act.
18    (d) The Department may refer a complaint alleging a
19violation of this Act to the Department of Human Rights for
20investigation if the subject matter of the complaint also
21alleges a violation of the Illinois Human Rights Act and the
22Department of Human Rights has jurisdiction over the matter.
23When a complaint is referred to the Department of Human Rights
24under this subsection, the Department of Human Rights shall
25also file the complaint under the Illinois Human Rights Act
26and be the agency responsible for investigating the complaint.

 

 

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1The Department shall review the Department of Human Rights'
2investigation and findings to determine whether a violation of
3this Act has occurred or whether further investigation by the
4Department is necessary and take any necessary or appropriate
5action required to enforce the provisions of this Act. The
6Director of Labor and the Department of Human Rights shall
7adopt joint rules necessary to administer and enforce this
8subsection.
9(Source: P.A. 98-1051, eff. 1-1-15.)
 
10    (820 ILCS 112/20)
11    Sec. 20. Recordkeeping requirements. An employer subject
12to any provision of this Act shall make and preserve records
13that document the name, address, and occupation of each
14employee, the wages paid to each employee, the pay scale and
15benefits for each position, the job posting for each position,
16and any other information the Director may by rule deem
17necessary and appropriate for enforcement of this Act. An
18employer subject to any provision of this Act shall preserve
19those records for a period of not less than 5 years and shall
20make reports from the records as prescribed by rule or order of
21the Director, unless the records relate to an ongoing
22investigation or enforcement action under this Act, in which
23case the records must be maintained until their destruction is
24authorized by the Department or by court order.
25(Source: P.A. 96-467, eff. 8-14-09.)
 

 

 

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1    (820 ILCS 112/30)
2    Sec. 30. Violations; fines and penalties.
3    (a) If an employee is paid by his or her employer less than
4the wage to which he or she is entitled in violation of Section
510 or 11 of this Act, the employee may recover in a civil
6action the entire amount of any underpayment together with
7interest, compensatory damages if the employee demonstrates
8that the employer acted with malice or reckless indifference,
9punitive damages as may be appropriate, injunctive relief as
10may be appropriate, and the costs and reasonable attorney's
11fees as may be allowed by the court and as necessary to make
12the employee whole. At the request of the employee or on a
13motion of the Director, the Department may make an assignment
14of the wage claim in trust for the assigning employee and may
15bring any legal action necessary to collect the claim, and the
16employer shall be required to pay the costs incurred in
17collecting the claim. Every such action shall be brought
18within 5 years from the date of the underpayment. For purposes
19of this Act, "date of the underpayment" means each time wages
20are underpaid.
21    (a-5) If an employer violates subsection (b), (b-5),
22(b-10), or (b-20) of Section 10, the employee may recover in a
23civil action any damages incurred, special damages not to
24exceed $10,000, injunctive relief as may be appropriate, and
25costs and reasonable attorney's fees as may be allowed by the

 

 

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1court and as necessary to make the employee whole. If special
2damages are available, an employee may recover compensatory
3damages only to the extent such damages exceed the amount of
4special damages. Such action shall be brought within 5 years
5from the date of the violation.
6    (b) The Director is authorized to supervise the payment of
7the unpaid wages under subsection (a) or damages under
8subsection (b), (b-5), (b-10), or (b-20) of Section 10 owing
9to any employee or employees under this Act and may bring any
10legal action necessary to recover the amount of unpaid wages,
11damages, and penalties or to seek injunctive relief, and the
12employer shall be required to pay the costs. Any sums
13recovered by the Director on behalf of an employee under this
14Section shall be paid to the employee or employees affected.
15    (c) Employers who violate any provision of this Act or any
16rule adopted under the Act, except for a violation of
17subsection (b-25) of Section 10, are subject to a civil
18penalty for each employee affected as follows:
19        (1) An employer with fewer than 4 employees: first
20    offense, a fine not to exceed $500; second offense, a fine
21    not to exceed $2,500; third or subsequent offense, a fine
22    not to exceed $5,000.
23        (2) An employer with between 4 and 99 employees: first
24    offense, a fine not to exceed $2,500; second offense, a
25    fine not to exceed $3,000; third or subsequent offense, a
26    fine not to exceed $5,000.

 

 

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1        (3) An employer with 100 or more employees who
2    violates any Section of this Act except for Section 11
3    shall be fined up to $10,000 per employee affected. An
4    employer with 100 or more employees that is a business as
5    defined under Section 11 and commits a violation of
6    Section 11 shall be fined up to $10,000.
7    Before any imposition of a penalty under this subsection,
8an employer with 100 or more employees who violates item (b) of
9Section 11 and inadvertently fails to file an initial
10application or recertification shall be provided 30 calendar
11days by the Department to submit the application or
12recertification.
13    An employer or person who violates subsection (b), (b-5),
14(b-10), (b-20), or (c) of Section 10 is subject to a civil
15penalty not to exceed $5,000 for each violation for each
16employee affected.
17    (c-5) The Department may initiate investigations of
18alleged violations of subsection (b-25) of Section 10 upon
19receiving a complaint from any person that claims to be
20aggrieved by a violation of that subsection or at the
21Department's discretion. Any person that claims to be
22aggrieved by a violation of subsection (b-25) of Section 10
23may submit a complaint of an alleged violation of that
24subsection to the Department within one year after the date of
25the violation. If the Department has determined that a
26violation has occurred, it shall issue to the employer a

 

 

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1notice setting forth the violation, the applicable penalty as
2described in subsections (c-10) and (c-15), and the period to
3cure the violation as described in subsection (c-10).
4    (c-7) A job posting found to be in violation of subsection
5(b-25) of Section 10 shall be considered as one violating job
6posting regardless of the number of duplicative postings that
7list the job opening.
8    (c-10) The penalties for a job posting or batch of
9postings that are active at the time the Department issues a
10notice of violation for violating subsection (b-25) of Section
1110 are as follows:
12        (1) For a first offense, following a cure period of 14
13    days to remedy the violation, a fine not to exceed $500 at
14    the discretion of the Department. A first offense may be
15    either a single job posting that violates subsection
16    (b-25) of Section 10 or multiple job postings that violate
17    subsection (b-25) of Section 10 and are identified at the
18    same time by the Department. The Department shall have
19    discretion to waive any civil penalty under this
20    paragraph.
21        (2) For a second offense, following a cure period of 7
22    days to remedy the violation, a fine not to exceed $2,500
23    at the discretion of the Department. A second offense is a
24    single job posting that violates subsection (b-25) of
25    Section 10. The Department shall have discretion to waive
26    any civil penalty under this paragraph.

 

 

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1        (3) For a third or subsequent offense, no cure period,
2    a fine not to exceed $10,000 at the discretion of the
3    Department. A third or subsequent offense is a single job
4    posting that violates subsection (b-25) of Section 10. The
5    Department shall have discretion to waive any civil
6    penalty under this paragraph. If a company has had a third
7    offense, it shall incur automatic penalties without a cure
8    period for a period of 5 years, at the completion of which
9    any future offense shall count as a first offense. The
10    5-year period shall restart if, during that period, an
11    employer receives a subsequent notice of violation from
12    the Department.
13    (c-15) The penalties for a job posting or batch of job
14postings that are not active at the time the Department issues
15a notice of violation for violating subsection (b-25) of
16Section 10 are as follows:
17        (1) For a first offense, a fine not to exceed $250 at
18    the discretion of the Department. A first offense may be
19    either a single job posting that violates subsection
20    (b-25) of Section 10 or multiple job postings that violate
21    subsection (b-25) of Section 10 and are identified at the
22    same time by the Department. The Department shall have
23    discretion to waive any civil penalty under this
24    paragraph.
25        (2) For a second offense, a fine not to exceed $2,500
26    at the discretion of the Department. A second offense is a

 

 

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1    single job posting that violates subsection (b-25) of
2    Section 10. The Department shall have discretion to waive
3    any civil penalty under this paragraph.
4        (3) For a third or subsequent offense, a fine not to
5    exceed $10,000 at the discretion of the Department. A
6    third or subsequent offense is a single job posting that
7    violates subsection (b-25) of Section 10. The Department
8    shall have discretion to waive any civil penalty under
9    this paragraph.
10    (d) In determining the amount of the penalty under this
11Section, the appropriateness of the penalty to the size of the
12business of the employer charged and the gravity of the
13violation shall be considered. The penalty may be recovered in
14a civil action brought by the Director in any circuit court.
15(Source: P.A. 101-177, eff. 9-29-19; 102-36, eff. 6-25-21.)
 
16    Section 99. Effective date. This Act takes effect January
171, 2025.".