On January 1, 2016, the Illinois Equal Pay Act was amended to prohibit employers of any size from paying unequal wages to men and women for doing the same or substantially similar work, except if the wage difference is based upon a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or factors other than gender. Men and women are to receive equal pay for the same or substantially similar work that is performed for the same employer, in the same county regardless of job title.
The Illinois Department of Labor administers and enforces the Act and is granted the power to conduct investigations, gather data regarding employees’ wages, hours, and other conditions of employment, and enter and inspect work places and records. It is unlawful for any person to discharge or in any other manner discriminate against any individual because the individual has filed any charge or has instituted or caused to be instituted any proceeding under or related to the Act.
An employee or former employee may file a complaint with the Illinois Department of Labor within one year from the date of the underpayment. After the Department determines jurisdiction, the Department will conduct an investigation to determine whether reasonable cause exists to believe a violation under the Act has occurred. The investigation may be made by written or oral inquiry, field visit, conference or any method or combination of methods. The Department will review up to 3 years prior to the date the complaint was filed.
The identity of all employees who file Equal Pay complaints will be kept confidential with the Department. While the case is pending at the administrative level, the identity of the complainant shall be kept confidential unless the complainant requests otherwise. The Act also contains non-retaliation protection and recordkeeping provisions regarding the wages and salaries of each employee. Confidentiality provision does not apply in cases alleging retaliatory discharge or retaliatory discrimination under the Act.
In regard to recording keeping, the Act provides that an employer shall make and preserve records that document the name, address, and occupation of each employee, the wages paid to each employee, and any other information the Director may by rule deem necessary and appropriate for enforcement of the Act. An employer subject to any provision of the Act shall preserve those records for a period of not less than 5 years.
The anti-retaliation provision provides that any employer, or any agent of an employer, who knowingly discharges or discriminates against any employee because that employee has made a complaint to his or her employer, has instituted or caused to be instituted any proceeding under or related to the Act or consulted counsel for such purposes, or because that employee has testified, is about to testify in an investigation or proceeding, or offers any evidence of any violation of the Act, shall be liable to the employee for such legal and equitable relief as may be appropriate to the value of any lost benefits, back pay, and front pay so long as the employee has made reasonable efforts to mitigate his or her damages and an additional equal amount as liquidated damages.
If an employer is found guilty of pay discrimination, the employer, officers of a corporation, or agents of a company will be required to make up the wage difference to the employee and may be subject to pay legal costs and civil fines. The recent amendments to the Act also increase the civil penalties for violation of the law as follows: For employers with four or more employees: For a first offense, a fine not to exceed $2,500; for a second offense, a fine not to exceed $3,000; and for a third or subsequent offense, a fine not to exceed $5,000; and for employers with fewer than four employees: For a first offense, a fine not to exceed $500; for a second offense, a fine not to exceed $2,500; and for a third or subsequent offense, a fine not to exceed $5,000.
While employers may pay male and female employees different wages so long as their wage differences are based on legitimate factors such as seniority, merit, or another valid factor other than gender, to ensure compliance with the Act, employers should review their payroll practices to determine whether such legitimate factors are in fact responsible for any pay disparities. Now that small employers are covered by the Act, they should be informed that they may face a claim for wage discrimination under state law.
Joette S. Doran has her law practice in Hoffman Estates. She concentrates in employment law and handles employment law actions in state and federal administrative agencies and courts. She was a former Co-Chair of the NWSBA Employment Law Committee, is a Member of the Board of Governors and is the Co-Chair of the Women’s Law Committee. For more information please visit her website at www.joettedoran.com.