Illinois bans employer inquires on salary history, continues trend

Excerpted from Hunton Employment & Labor Perspectives By Reilly C. Moore, Ryan M. Bates & Alan J. Marcuis

Illinois joined a handful of other states when its prohibition on employer inquiries into applicants’ prior wage or salary information took effect this week.

Under the law, no employers in Illinois can ask about the wage or salary histories of job applicants. If an employer receives salary history information voluntarily from the applicant, the employer still may not use that information to screen candidates.

The Illinois law does not apply if an applicant’s salary history is publicly available or if the applicant is applying internally for a new job at the same company. It also does not prohibit employers from discussing an applicant’s expectations with respect to their salary, benefits or other compensation.

Applicants may enforce the law through private causes of action, and penalties for violation of the law can range from $500 to $10,000 depending on the size of the employer. The law also allows for recovery of attorney’s fees, so it could encourage litigation despite the relatively limited damages available.

Several other states, including California, Delaware and Connecticut, already have similar salary history inquiry bans in place for all employers in the state. Some localities, including Cincinnati, Ohio and Philadelphia, Pennsylvania also have similar laws in place. Even more states are either considering similar legislation, or have laws set to take effect next year. For example, a similar New Jersey law prohibiting salary history discrimination will become effective on January 1, 2020.

The Illinois law and others like it reflect a larger trend of restricting the use of employee background information for employment decisions. Several states and localities have enacted Ban the Box legislation that limits an employer’s right to consider an applicant’s criminal history. Congress is also considering legislation to curtail the use of consumer credit reports in employment decisions.