CHICAGO – Changes to Illinois law may make a potential employer’s inquiry into a job applicant’s wage, benefits and other compensation history an unlawful form of discrimination.
“The point of this bill is - you can’t ask somebody when they are applying 'How much do you make at your current job?' How much did you make at your last job?' The purpose is to minimize and eliminate past discrimination going forward,” said Noah Frank, an attorney with the labor and employment group at the firm of SmithAmundsen, of Chicago.
“Because of the salary history you have this disparate impact that has traveled with the applicant over time,” he said.
He noted, for instance, applicants who may have earned more in previous jobs may be turned aside, if a business believes another applicant with similar qualifications who earned less previously may be willing to work for less.
An amendment to the Illinois Equal Pay Act, House Bill 2462 passed both chambers of the Illinois General Assembly in June. Violations of it would make employers liable potentially for compensatory damages, special damages of up to $10,000, injunctive relief and attorney fees through a private cause of action with a five-year statute of limitations.
Although Gov. Bruce Rauner vetoed the bill Aug. 25, the bill could be re-introduced and the veto overridden.
Frank often advises companies on how to handle these types of claims. If the bill passes and he were called upon to advise a client, he said he would recommend they revise company job applications to delete questions regarding salary and wage history.
"Instead, I would advise them to ask proactive questions, like: How much would you like to be making or how would you like to be compensated for a position like this? What are your goals? The questions would focus on how much it would take for the person to make the move, as opposed to what they are currently making,” he said.
Several other states have passed bills similar to this one, including Massachusetts, he said.
And Frank believes a new bill may be introduced to replace House Bill 2462, rather than just changing the current version.
A new vote might come as soon as October when the legislature comes back into session.
Frank feels there are potentially quite serious implications for employers if the bill passes.
“With or without this particular bill I think we are going to see some sort of salary amendment law go into effect in Illinois," he said. "And even without it, I think it’s possible that there could be claims by employees that are pushed forward by administrative agencies - the EEOC (Equal Employment Opportunity Commission or IDHR (Illinois Department of Human Rights) - and what they are going to be trying to argue is that, by asking about the salary history, even without this law in effect, (there is) a discriminatory impact.
"It’s a form of discrimination on its own because they are not paying somebody based on what the value of the position is; they are (paying) based on what this person thinks they are worth,” he said.