CHICAGO — In the wake of a veto of legislation to amend the Illinois Equal Pay Act, lawmakers in the state have been left to sift through the rejected proposal and find a foundation to serve as a model for the next proposal.

House Bill 2462 would have made a potential employer’s inquiry into a job applicant’s wage, benefits and other compensation history an unlawful form of discrimination.

Noah A. Frank, SmithAmundsen LLC
Noah A. Frank, SmithAmundsen LLC | http://www.salawus.com

However, Gov. Bruce Rauner vetoed the measure on Aug. 25, and while the House had passed the measure by a veto-proof margin, their counterparts in the state Senate couldn’t muster enough support to override the governor’s veto.

According to Noah Frank, an attorney at SmithAmundsen, whose practice focuses on labor and employment matters, the veto and lawmakers’ inability to override it could be only a temporary setback.

“I think it shows the immediate temperature of the General Assembly,” he told the Cook County Record. “In terms of a long-term significance, I don’t think there is much. I think that we will see a new bill similar to this one or similar to the one that the governor had suggested, which is similar to one passed in Massachusetts, introduced in the next General Assembly.”

The bill traveled a long and winding road to Rauner's veto.

It was initially passed by the House by a 91-24 vote and 35 senators agreed to adopt the measure. However, when it came time to override the veto, Frank noted that it lost support in both chambers.

On Oct. 25, the House agreed to override the veto by an 80-33 vote, a slimmer margin than the original vote. In the Senate, only 29 lawmakers favored overriding the veto, short of the 36 votes needed to overturn.

Frank said he expects another try in 2018 to pass legislation similar to laws in other states.

Currently, similar legislation is on the books in California, Massachusetts, Delaware and Oregon. On a municipal level, measures have been adopted in New York, Philadelphia and Pittsburgh. Puerto Rico also has adopted a measure.

“I think what we are seeing is the start of a national trend much like we have seen with 'ban-the-box' legislation, which is asking about criminal convictions on job applications, sweeping the nation,” Frank said. “I would expect more states, cities, counties and other taxing bodies, like mass transit districts, that have such authority, to pass this type of legislation in the future.”

In California, such a measure becomes law on Jan. 1. In other states, Frank said it is too soon to determine whether there will be any significant backlash.

“In terms of applicants filing charges of discrimination or complaints, it is still a little too new,” he said. “You have to see that they didn’t hire someone or if they did, they hired them at a lower rate.”

As a result, there would have to be some evidence that the law was broken.

“We would have to get some sort of knowledge that a lawsuit was filed alleging that there is discrimination under the equal pay act because the job application or the interview asked about prior salary history,” Frank said. “We would most likely find that an employer was sued under the equal pay act for discriminating against applicants.”

Support for the legislation has generally broken along party lines, with Democrats favoring the legislation and Republicans lining up against the proposals. Businesses also are opposing the legislation, which Frank said could impact their recruiting efforts.

“If I am trying to get a qualified candidate and I find out that person is making $30,000 a year, I know that I will have to offer more to bring that person over,” he said. “It could be more money or more benefits. They have to get more of something, unless they are totally miserable.”

However, Frank noted that most laws don’t prevent prospective employers from inquiring how much an applicant would like to make.

In a message accompanying his veto, Rauner urged state lawmakers to consider altering the bill to bring it in line with Massachusetts' law, which allows employers to inquire about salary history after a job and salary offer has been extended to a prospective employee.

Going forward, Frank said he expects to see such legislation popping up in states and municipalities across the country.

“The federal government has not been legislating much in the last year in employment law,” he said. “We will see more and more local laws that are creating a patchwork of legislation that employers with operations in multiple states have to comply with.”

That will force employers with locations in multiple states to take additional steps to ensure that they are complying with local or state laws. This could include using generic terminology or using separate application forms for each location, he said.

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