United States: Will Illinois Ban Salary History Inquiries? Hang On For A Bumpy Override!

As the 2017 legislative session closed in Illinois, Governor Bruce Rauner vetoed several measures relating to labor and employment issues. He rejected a statewide minimum wage increase, for example, as well as a ban on salary history inquiries. Illinois employers should be aware, however, that the governor's veto is not the end of this legislative roller coaster.

Indeed, the General Assembly recently convened its override session and revived the potential amendments to the state's equal pay law, along with numerous other bills. During this brief session, lawmakers have the opportunity to take another look at popular bills that died on the governor's desk and to vote on whether to circumvent his vetoes. If the vote in both chambers supports a bill by a supermajority, the bill becomes law despite Governor Rauner's prior veto. To successfully override a veto in Illinois, three-fifths of the members of each chamber (that is, both the house and the senate) must consider and pass the bill.

This session, lawmakers have revisited a couple of noteworthy labor and employment bills that Governor Rauner had rejected. The first measure (SB 1905), known as the "Collective Bargaining Freedom Act," would have prohibited municipalities from enacting right-to-work ordinances. Governor Rauner has long been a proponent of right-to-work laws, which generally make it unlawful to require employees to join a union or to pay union dues as a condition of their employment.1 Under SB 1905, only the state General Assembly would have the authority to adopt a right-to-work measure—an unlikely outcome given that the legislature is predominantly Democratic and union-friendly.2 Although the senate garnered enough support to override the veto of SB 1905, the maneuver fell short in the house, by one vote. The bill's sponsors have vowed to try again during the second half of the override session next month.3

Governor Rauner also vetoed a measure amending the existing equal pay act. If enacted, this bill (HB 2462) would have bolstered equal pay provisions and prohibited salary history inquiries. Specifically, HB 2462 would make it illegal to screen applicants based on their wage or salary history or to require that an applicant's prior wages satisfy any minimum or maximum criteria. The bill would also prevent employers from requesting that an applicant disclose his or her prior wages or salary as a condition for being interviewed, being considered for employment, being hired, or receiving an offer of compensation.

Notably, HB 2462 would prohibit employers from asking any current or former employer of a candidate about that individual's pay history. This restriction would not apply for wage information about an applicant: (1) that is a matter of public record under the Freedom of Information Act; (2) that was posted by the current or former employer to comply with state or federal law; or (3) that is otherwise included in a document made public by the current or former employer. This limitation also would not apply to current employees seeking a different position with the same, current employer.

In addition to the ban on salary history inquiries, HB 2462 makes it unlawful for employers to demand that employees sign a contract or waiver that would restrict an individual's ability to disclose or discuss his or her wages. This proposal thus broadens the current statute's wage transparency provision, which prohibits employers from discharging or discriminating against anyone who asks about, discloses, compares, or otherwise discusses employee wages. Finally, HB 2462 authorizes aggrieved employees to recover compensatory and punitive awards, as well as injunctive relief and special damages of up to $10,000. The equal pay act further provides for civil penalties of up to $5,000 per violation, per affected employee.

In vetoing HB 2462,4 Governor Rauner emphasized his support for wage equality and encouraged the legislature to model the Illinois equal pay act after its Massachusetts counterpart.5 The Illinois house voted to override that veto, however, sending it to the senate for reconsideration. When the senate initially voted on May 30, 2017 to pass the bill, it received 35 votes in favor. To achieve an override, 36 votes will be needed. While it is unclear whether the bill's proponents can muster the necessary votes, legislative override of HB 2462 is a real possibility. If the override succeeds, Illinois will become the latest jurisdiction to enact a salary history ban, joining California, Delaware, Massachusetts and Oregon, along with New York City and San Francisco.6

The override session is scheduled to conclude on November 9, 2017. Employers in the Land of Lincoln should stay tuned for further developments.

Footnotes

1See Gov. Rauner's Veto Message on SB 1905 (Sept. 29, 2017) (rejecting bill as damaging to the state's economy).

2 Interestingly, a federal district court judge has already reached a similar conclusion. International Union of Operating Eng'rs, Local 339 v. Village of Lincolnshire, 228 F. Supp. 3d 824 (N.D. Ill. 2017) (further holding that the National Labor Relations Act precluded Lincolnshire's right-to-work ordinance). That ruling is currently on appeal.

3 Monique Garcia, Rauner Narrowly Avoids Losing Battle Over Right-to-Work Union Issue, For Now, Chi. Trib., Oct. 26, 2017.

4 See Gov. Rauner's Veto Message on HB 2462 (Aug. 25, 2017).

5 See Christopher Kaczmarek, Stephen Melnick & Joseph Lazazzero, Massachusetts Adds Teeth to Equal Pay Obligations, Littler Insight (July 28, 2016).

6 See, e.g., Bruce Sarchet, New California Law Prohibits Salary History Inquiries, Littler ASAP (Oct. 13, 2017); Bruce Sarchet & Corinn Jackson, Another San Francisco Treat: Mayor Lee Signs Salary History Ban, Littler ASAP (July 20, 2017); Joon Hwang, Delaware Enacts Law to Address Gender Pay Gap By Prohibiting Employers From Requesting Compensation History of Job Applicants, Littler ASAP (June 19, 2017); Christopher Kaczmarek, Stephen Melnick, and Joseph Lazazzero, Massachusetts Adds Teeth to Equal Pay Obligations, Littler Insight (July 28, 2016); Cody Emily Schvaneveldt, Oregon Enacts New Equal Pay Law that Includes Salary History Inquiry Restrictions, Littler ASAP (June 1, 2017); María Cáceres-Boneau, Jean Schmidt & David M. Wirtz, New York City Set to Ban Inquiries About Salary History, Littler ASAP (Apr. 14, 2017). An ordinance was also passed in Philadelphia, Pennsylvania but is currently on hold pending the outcome of litigation challenging the law. See Martha Keon, The City of Philadelphia Has Agreed To Stay The Enforcement of The Philadelphia Wage Equity Ordinance Pending Resolution of Court Challenge, Littler ASAP (Apr. 20, 2017); see also Martha Keon & William J. Simmons, Philadelphia Adopts Regulations Clarifying the Still-Stayed Ordinance Banning Salary History Inquiries, Littler ASAP (Oct. 24, 2017). In addition, on October 25, 2017, the Albany, New York legislature passed a county law that would restrict salary history inquiries. The County Executive has 30 days to sign or veto this measure.

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