John E. Fester and Anthony Scariano III
August 16, 2019
Governor Pritzker recently signed a bill into law that, in certain circumstances, will prohibit school districts from asking job applicants about their compensation history. The bill, which amends Illinois’ Equal Pay Act (“amendments”), will become effective on September 29, 2019.
The amendments will prohibit school districts from requesting or requiring wage or salary history as a condition of being considered for employment. There is no violation if the job applicant voluntarily, and without prompting, discloses his or her current or prior wage or salary history – on the condition that the school district does not consider or rely on the voluntary disclosures when determining whether to offer employment to the applicant. In other words, the applicant can give you his/her salary history, but you cannot use it to make a decision, and you may have to prove you did not use it against an applicant you do not hire, or that you did not use it to offer less than you otherwise would have offered. Does that sound like information you want to have?
Many job applications we see from school districts (e.g. Applitrack©, Regional Office common applications) have a section where the applicant is asked to disclose current or last wage rate or salary. Therefore, if your school district is using one of these applications, the amendments raise the question: “should we eliminate this portion of the application?” We believe the answer is yes. Continuing to request this information would first require you to revise the application to include a disclaimer, such as “answering this question is voluntary – your disclosure of this information will not be considered in our decision to offer or not offer you employment.” Then you would have to figure out how to prove that the voluntarily-disclosed wage or salary history did not factor into your decision to reject the applicant, or to set the salary for a successful applicant. Proving this, in our opinion, would be nearly impossible or, at the very least, a large hill to climb.
Most newly hired school district employees will be compensated based on a salary schedule or other systems or practices for setting the salaries of new hires. While educational attainment and/or years of experience are commonly used in setting a new hire’s salary, wage history is not typically a factor in such decisions. For employees whose salaries are not determined by education or years of experience, the amendments allow employers to discuss an applicant’s expectations with respect to wage or salary, benefits, and other compensation. So, it will be permissible to ask applicants: “what are your salary expectations for this position?”
Finally, the amendments allow employers to ask an applicant’s current or former employer for wage, salary, benefit, or other compensation history as long as that history is a matter of public record under the Illinois Freedom of Information Act (“FOIA”). Some of this information may even be posted on the current or former employer’s website. We recommend cautious use of this exception since there will no doubt be litigation claiming a school district used this exception to “lowball” an applicant that might have otherwise received a higher offer if the school district did not discover the applicant’s salary history. Remember that the purpose of the law is to prevent historical inequities in compensation from being perpetuated through basing compensation decisions on a salary history that may have been tainted by discrimination.
If you have any questions about these changes, please do not hesitate to contact your SHP attorney.