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Illinois Bucks the Trend on Salary History
Posted 11.19.17
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Emily M. Wajert
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A growing number of cities and states have enacted legislation banning employers from inquiring about an applicant’s past salary history in an effort to remedy the gender pay gap and combat discrimination.  Illinois will not be joining that list—at least not yet.

On Thursday, November 9, 2017, the Illinois state senate failed to override the governor’s veto of its salary history bill.  The governor, Bruce Rauner, initially vetoed the bill in August suggesting his state should instead model its bill after its Massachusetts counterpart—providing more flexibility to employers.  A successful veto override required 71 votes in the House and 36 in the Senate—the override failed in the Senate on Thursday, receiving 29 “yeas,” despite some bi-partisan support.  Much like other jurisdictions’ versions of salary history bans, the proposed legislation would have made it unlawful for an employer to seek a job candidate’s compensation history, including pay and benefits, unless a matter of public record.  The ban would not have applied to current employees seeking another position within the company.

Illinois is not the only jurisdiction struggling to implement a salary history ban.  Philadelphia, despite being one of the first cities to introduce a ban, recently agreed to stay its law until a legal challenge is resolved. New Jersey is also facing similar struggles after New Jersey governor, Chris Christie, vetoed legislation in August that would have amended the New Jersey Law Against Discrimination to prohibit employers from requesting salary history information from prospective employees. However, NJ employers should be cognizant of changes in this area because it is likely that lawmakers will introduce the same or similar legislation once he is out of office next year.

While the “past salary” question is thus still permissible in Illinois, employers should be aware of the expanding list of cities and states where the question is impermissible and could lead to a multitude of headaches and potential litigation.   Employers in jurisdictions listed below should ensure their HR managers, recruiters, and applications are up-to-date on what type of, if any, inquiries into an applicant’s salary history are acceptable.

State/City/Locality Effective Date Which employers are covered?
Pittsburgh In effect Only applies to city employees
New York In effect Only applies to state employees
New Orleans In effect City employees and employees of contractors who work for the city
Oregon In effect All employers
New York City In effect All employers of any size that are hiring job applicants in New York City
Puerto Rico In effect All employers
Delaware Dec. 14, 2017 All employers
San Francisco July 1, 2018 All employers
Philadelphia Stay pending legal challenge All employers

 

Max's Mistakes -Salary History Ban

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About Emily M. Wajert
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Emily M. Wajert is an Associate with the Employment, Labor, Benefits and Immigration Practice Group. Ms. Wajert is a 2017 cum laude graduate of the University of Pennsylvania Law School, where she was online managing editor of Vol. 19 of the University of Pennsylvania Journal of Constitutional Law, and a graduate of The Pennsylvania State University.