Laws prohibiting employers from asking about a job applicant’s salary have been sweeping the nation over the past year. As we discussed, Massachusetts passed such a law about a year ago. New York and San Francisco did as well. Not to be outdone, Illinois hopped on the salary inquiry prohibition, with both houses in the General Assembly passing a bill prohibiting salary history inquiries last June.
Governor Rauner vetoed the bill, but accompanied that veto with a message to the Illinois legislature that he would support a law prohibiting salary history inquiries based on that passed by Massachusetts last year. The logic behind passing such a bill is that employers are able to pay female employees less than male employees based on their previous salary, and such a bill would eliminate this basis for employers to pay male and female employees different amounts for comparable work.
The bill that Governor Rauner vetoed would have amended the Illinois Equal Pay Act to make an employer’s inquiry into a job applicant’s prior wages, benefits, and other compensation illegal. Employers would have been subject to significant liability for violating the law, with employees able to receive $10,000 in special damages, along with compensatory damages and reimbursement of their attorneys’ fees.
The Massachusetts law prohibiting salary history inquiry requires employers to state a compensation figure upfront. It also prevents them from prohibiting employees from discussing their compensation with one another. However, past compensation can be discussed if the job applicant brings it up voluntarily. Employers who violate this law can be sued, with successful litigants winning unpaid wages and attorneys’ fees. It also makes it easier for class action lawsuits to be filed against the employer.
The bill prohibiting inquiry into salary history received broad support in the Illinois General Assembly, with the House passing it 91 to 24 and the Senate passing it 35 to 18. It therefore is possible that the General Assembly will simply override the Governor’s veto and sign the bill into law, as it has enough votes to do that. It seems more likely that the legislature will make the changes to the bill that the Governor suggested, which likely then will be passed by the Governor. In any event, it seems like only a matter of time before some bill prohibiting salary history inquiries is on the books.
I am all for pay equality, and believe that men and women should receive equal compensation for equal work. However, I think it is questionable whether salary history prohibition will achieve this. First of all, it is premised on the dubious assumption that men and women are paid different amounts for comparable work. Secondly, if an employer is determined to pay female employees less, there are innumerable reasons besides prior salary that can be used to justify this decision. All this bill really does is restrict important information from being available in the marketplace.
Moreover, this law is one more burden thrust upon employers. At a time when Illinois’s neighbors are taking measures to make life easier for employers, passing right-to-work laws, cutting business taxes, and lowering workers’ compensation premiums, Illinois is going in the opposite direction, increasing taxes and passing laws that impose more liability on employers. Disincentivizing employers from moving to or staying in Illinois is not going to help reverse the population loss, debt increase, and stagnant economic growth that our state has experienced this decade.
In any event, stay tuned to our blog for more information about this law and feel free to contact me to discuss it.