By: Maryjo F. Pirages Reynolds

Illinois employers already need to exercise caution to avoid prematurely inquiring about an applicant’s criminal history in violation of the Illinois Job Opportunities for Qualified Applicants Act, effective January 1, 2015. Soon, there could be a need for Illinois employers to avoid asking job applicants about their salary history.

In February 2017, the Illinois House proposed a bill to prohibit as salary inquiries and applicant screening based on wages as an amendment to the Illinois Equal Pay Act of 2003. The bill passed the House and Senate and made it to the Governor’s desk, only to be vetoed in August 2017. The bill then bounced back to the House which overrode the Governor’s veto. Ultimately, in November 2017, the Senate did not get enough votes to override the bill, such that the proposed legislation is dead for the time being.

When vetoing the bill, Governor Rauner issued a message stating that he strongly supports wage equality and urging the Illinois legislature to propose a new bill mirroring Massachusetts’ law which he deemed “a best-in-the-country approach to the issue of employers inquiring about salary history.” Such a law would require employers to remove any questions about salary history from their applicants and prohibit salary-related questions until after an offer, with compensation, is made. It would also provide an affirmative defense to employers if they conduct a detailed self-evaluation and could demonstrate steps taken to address wage differentials for similar work based on gender. The purpose of these laws is to close the gender gap in wages that may persist if the wages of new employees are based on their prior salary history rather than a salary range for the position.

If Illinois passes such a law, which we expect in the near future, it will join Delaware, Massachusetts, Oregon, and most recently, California. For the time being, be on the look out for revised legislation. The growing debate surrounding wage inquiries offers employers a good opportunity to pause and think about their application and interview questions to ensure that they are both in compliance with current law and promoting equal opportunity. We recommend that employers remove salary inquiries from their applications and first round interviews. Employers should also consider the fair salary range for a given position before the position is advertised, even if they do not want to include such information in the advertisement itself.