Sen. Cristina H. Pacione-Zayas

Filed: 5/5/2023

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 3129

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1job posting. The third party is liable for failure to include
2the pay scale and benefits in the job posting, unless the third
3party can show that the employer did not provide the necessary
4information regarding pay scale and benefits. An employer
5shall announce, post, or otherwise make known all
6opportunities for promotion to all current employees no later
7than 14 calendar days after the employer makes an external job
8posting for the position, except for positions in the State of
9Illinois workforce designated as exempt from competitive
10selection. Nothing in this subsection requires an employer to
11make a job posting. Posting of a relevant and up to date
12general benefits description in an easily accessible, central,
13and public location on an employer's website and referring to
14this posting in the job posting shall be deemed to satisfy the
15benefits posting requirement under this subsection. This
16subsection only applies to positions that (i) will be
17physically performed, at least in part, in Illinois or (ii)
18will be physically performed outside of Illinois, but the
19employee reports to a supervisor, office, or other work site
20in Illinois. Nothing in this subsection prohibits an employer
21or employment agency from asking an applicant about his or her
22wage or salary expectations for the position the applicant is
23applying for. An employer or employment agency shall disclose
24to an applicant for employment the pay scale and benefits to be
25offered for the position prior to any offer or discussion of
26compensation and at the applicant's request, if a public or

 

 

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1internal posting for the job, promotion, transfer, or other
2employment opportunity has not been made available to the
3applicant. This subsection shall only apply to job postings
4that have been posted after the effective date of this
5amendatory Act of the 103rd General Assembly.
6    (b-30) An employer or an employment agency shall not
7refuse to interview, hire, promote, or employ, and shall not
8otherwise retaliate against, an applicant for employment or an
9employee for exercising any rights under subsection (b-25).
10    (c) It is unlawful for any person to discharge or in any
11other manner discriminate against any individual because the
12individual:
13        (1) has filed any charge or has instituted or caused
14    to be instituted any proceeding under or related to this
15    Act;
16        (2) has given, or is about to give, any information in
17    connection with any inquiry or proceeding relating to any
18    right provided under this Act;
19        (3) has testified, or is about to testify, in any
20    inquiry or proceeding relating to any right provided under
21    this Act; or
22        (4) fails to comply with any wage or salary history
23    inquiry.
24(Source: P.A. 101-177, eff. 9-29-19; 102-277, eff. 1-1-22.)
 
25    (820 ILCS 112/15)

 

 

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1    Sec. 15. Enforcement.
2    (a) The Director or his or her authorized representative
3shall administer and enforce the provisions of this Act. The
4Director of Labor shall adopt rules necessary to administer
5and enforce this Act.
6    (b) An employee, or former employee , or, for the purposes
7of a violation of subsection (b-25) of Section 10, any person
8that claims to be aggrieved by a violation of that subsection,
9may file a complaint with the Department alleging a violation
10of this Act by submitting a signed, completed complaint form.
11All complaints shall be filed with the Department within one
12year from the date of the relevant violation underpayment.
13    (c) The Department has the power to conduct investigations
14in connection with the administration and enforcement of this
15Act and the authorized officers and employees of the
16Department are authorized to investigate and gather data
17regarding the wages, hours, and other conditions and practices
18of employment in any industry subject to this Act, and may
19enter and inspect such places and such records at reasonable
20times during regular business hours, question the employees
21and investigate the facts, conditions, practices, or matters
22as he or she may deem necessary or appropriate to determine
23whether any person has violated any provision of this Act, or
24which may aid in the enforcement of this Act.
25    (d) The Department may refer a complaint alleging a
26violation of this Act to the Department of Human Rights for

 

 

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1investigation if the subject matter of the complaint also
2alleges a violation of the Illinois Human Rights Act and the
3Department of Human Rights has jurisdiction over the matter.
4When a complaint is referred to the Department of Human Rights
5under this subsection, the Department of Human Rights shall
6also file the complaint under the Illinois Human Rights Act
7and be the agency responsible for investigating the complaint.
8The Department shall review the Department of Human Rights'
9investigation and findings to determine whether a violation of
10this Act has occurred or whether further investigation by the
11Department is necessary and take any necessary or appropriate
12action required to enforce the provisions of this Act. The
13Director of Labor and the Department of Human Rights shall
14adopt joint rules necessary to administer and enforce this
15subsection.
16(Source: P.A. 98-1051, eff. 1-1-15.)
 
17    (820 ILCS 112/20)
18    Sec. 20. Recordkeeping requirements. An employer subject
19to any provision of this Act shall make and preserve records
20that document the name, address, and occupation of each
21employee, the wages paid to each employee, the pay scale and
22benefits for each position, the job posting for each position,
23and any other information the Director may by rule deem
24necessary and appropriate for enforcement of this Act. An
25employer subject to any provision of this Act shall preserve

 

 

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1those records for a period of not less than 5 years and shall
2make reports from the records as prescribed by rule or order of
3the Director, unless the records relate to an ongoing
4investigation or enforcement action under this Act, in which
5case the records must be maintained until their destruction is
6authorized by the Department or by court order.
7(Source: P.A. 96-467, eff. 8-14-09.)
 
8    (820 ILCS 112/30)
9    Sec. 30. Violations; fines and penalties.
10    (a) If an employee is paid by his or her employer less than
11the wage to which he or she is entitled in violation of Section
1210 or 11 of this Act, the employee may recover in a civil
13action the entire amount of any underpayment together with
14interest, compensatory damages if the employee demonstrates
15that the employer acted with malice or reckless indifference,
16punitive damages as may be appropriate, injunctive relief as
17may be appropriate, and the costs and reasonable attorney's
18fees as may be allowed by the court and as necessary to make
19the employee whole. At the request of the employee or on a
20motion of the Director, the Department may make an assignment
21of the wage claim in trust for the assigning employee and may
22bring any legal action necessary to collect the claim, and the
23employer shall be required to pay the costs incurred in
24collecting the claim. Every such action shall be brought
25within 5 years from the date of the underpayment. For purposes

 

 

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

 

 

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1    offense, a fine not to exceed $500; second offense, a fine
2    not to exceed $2,500; third or subsequent offense, a fine
3    not to exceed $5,000.
4        (2) An employer with between 4 and 99 employees: first
5    offense, a fine not to exceed $2,500; second offense, a
6    fine not to exceed $3,000; third or subsequent offense, a
7    fine not to exceed $5,000.
8        (3) An employer with 100 or more employees who
9    violates any Section of this Act except for Section 11
10    shall be fined up to $10,000 per employee affected. An
11    employer with 100 or more employees that is a business as
12    defined under Section 11 and commits a violation of
13    Section 11 shall be fined up to $10,000.
14    Before any imposition of a penalty under this subsection,
15an employer with 100 or more employees who violates item (b) of
16Section 11 and inadvertently fails to file an initial
17application or recertification shall be provided 30 calendar
18days by the Department to submit the application or
19recertification.
20    An employer or person who violates subsection (b), (b-5),
21(b-10), (b-20), or (c) of Section 10 is subject to a civil
22penalty not to exceed $5,000 for each violation for each
23employee affected.
24    (c-5) The Department may initiate investigations of
25alleged violations of subsection (b-25) of Section 10 upon
26receiving a complaint from any person that claims to be

 

 

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1aggrieved by a violation of that subsection or at the
2Department's discretion. Any person that claims to be
3aggrieved by a violation of subsection (b-25) of Section 10
4may submit a complaint of an alleged violation of that
5subsection to the Department within one year after the date of
6the violation. If the Department has determined that a
7violation has occurred, it shall issue to the employer a
8notice setting forth the violation, the applicable penalty as
9described in subsections (c-10) and (c-15), and the period to
10cure the violation as described in subsection (c-10).
11    (c-7) A job posting found to be in violation of subsection
12(b-25) of Section 10 shall be considered as one violating job
13posting regardless of the number of duplicative postings that
14list the job opening.
15    (c-10) The penalties for a job posting or batch of
16postings that are active at the time the Department issues a
17notice of violation for violating subsection (b-25) of Section
1810 are as follows:
19        (1) For a first offense, following a cure period of 14
20    days to remedy the violation, a fine not to exceed $500 at
21    the discretion of the Department. A first offense may be
22    either a single job posting that violates subsection
23    (b-25) of Section 10 or multiple job postings that violate
24    subsection (b-25) of Section 10 and are identified at the
25    same time by the Department. The Department shall have
26    discretion to waive any civil penalty under this

 

 

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

 

 

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1    (b-25) of Section 10 or multiple job postings that violate
2    subsection (b-25) of Section 10 and are identified at the
3    same time by the Department. The Department shall have
4    discretion to waive any civil penalty under this
5    paragraph.
6        (2) For a second offense, a fine not to exceed $2,500
7    at the discretion of the Department. A second offense is a
8    single job posting that violates subsection (b-25) of
9    Section 10. The Department shall have discretion to waive
10    any civil penalty under this paragraph.
11        (3) For a third or subsequent offense, a fine not to
12    exceed $10,000 at the discretion of the Department. A
13    third or subsequent offense is a single job posting that
14    violates subsection (b-25) of Section 10. The Department
15    shall have discretion to waive any civil penalty under
16    this paragraph.
17    For the purposes of this subsection, the Department,
18during its investigation of a complaint, shall make a
19determination as to whether a job posting is not active by
20considering the totality of the circumstances, including, but
21not limited to: (i) whether a position has been filled; (ii)
22the length of time a posting has been accessible to the public;
23(iii) the existence of a date range for which a given position
24is active; and (iv) whether the violating posting is for a
25position for which the employer is no longer accepting
26applications.

 

 

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1    (d) In determining the amount of the penalty under this
2Section, the appropriateness of the penalty to the size of the
3business of the employer charged and the gravity of the
4violation shall be considered. The penalty may be recovered in
5a civil action brought by the Director in any circuit court.
6(Source: P.A. 101-177, eff. 9-29-19; 102-36, eff. 6-25-21.)
 
7    Section 99. Effective date. This Act takes effect January
81, 2025.".