HB3129ham001 103RD GENERAL ASSEMBLY

Rep. Mary Beth Canty

Filed: 3/21/2023

 

 


 

 


 
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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 10, 20, and 30 as follows:
 
6    (820 ILCS 112/10)
7    Sec. 10. Prohibited acts.
8    (a) No employer may discriminate between employees on the
9basis of sex by paying wages to an employee at a rate less than
10the rate at which the employer pays wages to another employee
11of the opposite sex for the same or substantially similar work
12on jobs the performance of which requires substantially
13similar skill, effort, and responsibility, and which are
14performed under similar working conditions, except where the
15payment is made under:
16        (1) a seniority system;

 

 

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

 

 

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1    than: (i) race 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 race 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    An employer who is paying wages in violation of this Act
11may not, to comply with this Act, reduce the wages of any other
12employee.
13    Nothing in this Act may be construed to require an
14employer to pay, to any employee at a workplace in a particular
15county, wages that are equal to the wages paid by that employer
16at a workplace in another county to employees in jobs the
17performance of which requires equal skill, effort, and
18responsibility, and which are performed under similar working
19conditions.
20    (b) It is unlawful for any employer to interfere with,
21restrain, or deny the exercise of or the attempt to exercise
22any right provided under this Act. It is unlawful for any
23employer to discharge or in any other manner discriminate
24against any individual for inquiring about, disclosing,
25comparing, or otherwise discussing the employee's wages or the
26wages of any other employee, or aiding or encouraging any

 

 

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1person to exercise his or her rights under this Act. It is
2unlawful for an employer to require an employee to sign a
3contract or waiver that would prohibit the employee from
4disclosing or discussing information about the employee's
5wages, salary, benefits, or other compensation. An employer
6may, however, prohibit a human resources employee, a
7supervisor, or any other employee whose job responsibilities
8require or allow access to other employees' wage or salary
9information from disclosing that information without prior
10written consent from the employee whose information is sought
11or requested.
12    (b-5) It is unlawful for an employer or employment agency,
13or employee or agent thereof, to (1) screen job applicants
14based on their current or prior wages or salary histories,
15including benefits or other compensation, by requiring that
16the wage or salary history of an applicant satisfy minimum or
17maximum criteria, (2) request or require a wage or salary
18history as a condition of being considered for employment, as
19a condition of being interviewed, as a condition of continuing
20to be considered for an offer of employment, as a condition of
21an offer of employment or an offer of compensation, or (3)
22request or require that an applicant disclose wage or salary
23history as a condition of employment.
24    (b-10) It is unlawful for an employer to seek the wage or
25salary history, including benefits or other compensation, of a
26job applicant from any current or former employer. This

 

 

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1subsection (b-10) does not apply if:
2        (1) the job applicant's wage or salary history is a
3    matter of public record under the Freedom of Information
4    Act, or any other equivalent State or federal law, or is
5    contained in a document completed by the job applicant's
6    current or former employer and then made available to the
7    public by the employer, or submitted or posted by the
8    employer to comply with State or federal law; or
9        (2) the job applicant is a current employee and is
10    applying for a position with the same current employer.
11    (b-15) Nothing in subsections (b-5) and (b-10) shall be
12construed to prevent an employer or employment agency, or an
13employee or agent thereof, from:
14        (1) providing information about the wages, benefits,
15    compensation, or salary offered in relation to a position;
16    or
17        (2) engaging in discussions with an applicant for
18    employment about the applicant's expectations with respect
19    to wage or salary, benefits, and other compensation,
20    including unvested equity or deferred compensation that
21    the applicant would forfeit or have canceled by virtue of
22    the applicant's resignation from the applicant's current
23    employer. If, during such discussion, the applicant
24    voluntarily and without prompting discloses that the
25    applicant would forfeit or have canceled by virtue of the
26    applicant's resignation from the applicant's current

 

 

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

 

 

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1include the pay scale and benefits in the job posting. An
2employer shall announce, post, or otherwise make known all
3opportunities for promotion to all current employees no later
4than the same calendar day that the employer makes an external
5job posting for the position. Nothing in this subsection
6requires an employer to make a job posting. As used in this
7subsection, "pay scale and benefits" means the wage or salary,
8or the wage or salary range, and a general description of the
9benefits and other compensation the employer reasonably
10expects to offer for the position.
11    (c) It is unlawful for any person to discharge or in any
12other manner discriminate against any individual because the
13individual:
14        (1) has filed any charge or has instituted or caused
15    to be instituted any proceeding under or related to this
16    Act;
17        (2) has given, or is about to give, any information in
18    connection with any inquiry or proceeding relating to any
19    right provided under this Act;
20        (3) has testified, or is about to testify, in any
21    inquiry or proceeding relating to any right provided under
22    this Act; or
23        (4) fails to comply with any wage or salary history
24    inquiry.
25(Source: P.A. 101-177, eff. 9-29-19; 102-277, eff. 1-1-22.)
 

 

 

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1    (820 ILCS 112/20)
2    Sec. 20. Recordkeeping requirements. An employer subject
3to any provision of this Act shall make and preserve records
4that document the name, address, and occupation of each
5employee, the wages paid to each employee, the pay scale and
6benefits, as defined in subsection (b-25) of Section (10), for
7a position, and any other information the Director may by rule
8deem necessary and appropriate for enforcement of this Act. An
9employer subject to any provision of this Act shall preserve
10those records for a period of not less than 5 years and shall
11make reports from the records as prescribed by rule or order of
12the Director, unless the records relate to an ongoing
13investigation or enforcement action under this Act, in which
14case the records must be maintained until their destruction is
15authorized by the Department or by court order.
16(Source: P.A. 96-467, eff. 8-14-09.)
 
17    (820 ILCS 112/30)
18    Sec. 30. Violations; fines and penalties.
19    (a) If an employee is paid by his or her employer less than
20the wage to which he or she is entitled in violation of Section
2110 or 11 of this Act, the employee may recover in a civil
22action the entire amount of any underpayment together with
23interest, compensatory damages if the employee demonstrates
24that the employer acted with malice or reckless indifference,
25punitive damages as may be appropriate, injunctive relief as

 

 

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1may be appropriate, and the costs and reasonable attorney's
2fees as may be allowed by the court and as necessary to make
3the employee whole. At the request of the employee or on a
4motion of the Director, the Department may make an assignment
5of the wage claim in trust for the assigning employee and may
6bring any legal action necessary to collect the claim, and the
7employer shall be required to pay the costs incurred in
8collecting the claim. Every such action shall be brought
9within 5 years from the date of the underpayment. For purposes
10of this Act, "date of the underpayment" means each time wages
11are underpaid.
12    (a-5) If an employer violates subsection (b), (b-5),
13(b-10), or (b-20), or (b-25) of Section 10, the employee may
14recover in a civil action any damages incurred, special
15damages not to exceed $10,000, injunctive relief as may be
16appropriate, and costs and reasonable attorney's fees as may
17be allowed by the court and as necessary to make the employee
18whole. If special damages are available, an employee may
19recover compensatory damages only to the extent such damages
20exceed the amount of special damages. Such action shall be
21brought within 5 years from the date of the violation.
22    (b) The Director is authorized to supervise the payment of
23the unpaid wages under subsection (a) or damages under
24subsection (b), (b-5), (b-10), or (b-20), or (b-25) of Section
2510 owing to any employee or employees under this Act and may
26bring any legal action necessary to recover the amount of

 

 

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1unpaid wages, damages, and penalties or to seek injunctive
2relief, and the employer shall be required to pay the costs.
3Any sums recovered by the Director on behalf of an employee
4under this Section shall be paid to the employee or employees
5affected.
6    (c) Employers who violate any provision of this Act or any
7rule adopted under the Act, except for a violation of
8subsection (b-25) of Section 10, are subject to a civil
9penalty for each employee affected as follows:
10        (1) An employer with fewer than 4 employees: first
11    offense, a fine not to exceed $500; second offense, a fine
12    not to exceed $2,500; third or subsequent offense, a fine
13    not to exceed $5,000.
14        (2) An employer with between 4 and 99 employees: first
15    offense, a fine not to exceed $2,500; second offense, a
16    fine not to exceed $3,000; third or subsequent offense, a
17    fine not to exceed $5,000.
18        (3) An employer with 100 or more employees who
19    violates any Section of this Act except for Section 11
20    shall be fined up to $10,000 per employee affected. An
21    employer with 100 or more employees that is a business as
22    defined under Section 11 and commits a violation of
23    Section 11 shall be fined up to $10,000.
24    Before any imposition of a penalty under this subsection,
25an employer with 100 or more employees who violates item (b) of
26Section 11 and inadvertently fails to file an initial

 

 

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1application or recertification shall be provided 30 calendar
2days by the Department to submit the application or
3recertification.
4    An employer or person who violates subsection (b), (b-5),
5(b-10), (b-20), or (c) of Section 10 is subject to a civil
6penalty not to exceed $5,000 for each violation for each
7employee affected.
8    (c-5) The Department may initiate investigations of
9alleged violations of subsection (b-25) of Section (10) upon
10receiving a complaint from any individual, or at the
11Department's discretion. Any individual may submit a complaint
12of a violation of subsection (b-25) of Section (10) to the
13Department within one year after the date the individual
14learned of the violation. If the Department has determined
15that a violation of subsection (b-25) of Section (10) has
16occurred, the employer has 7 days upon receipt of notice of a
17violation from the Department to remedy the violation. The
18employer shall demonstrate to the Department that the
19violation has been remedied or the employer shall be subject
20to a civil penalty of $100 per day for each day that a
21violation continues after the 7-day notice period. Each job
22posting not in compliance with the requirements of subsection
23(b-25) of Section (10) shall be considered a separate
24violation.
25    (d) In determining the amount of the penalty, the
26appropriateness of the penalty to the size of the business of

 

 

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1the employer charged and the gravity of the violation shall be
2considered. The penalty may be recovered in a civil action
3brought by the Director in any circuit court.
4(Source: P.A. 101-177, eff. 9-29-19; 102-36, eff. 6-25-21.)
 
5    Section 99. Effective date. This Act takes effect January
61, 2024.".