June 2013

By: Nancy E. Joerg, Esq.

Many employers do not realize that Illinois has more than a Minimum Wage and Overtime law. It also has an Equal Pay Act. This little known law is called the Equal Pay Act of 2003 (820 ILCS 112/).

This special Illinois law prohibits Illinois employers with four (4) or more employees from paying UNEQUAL WAGES to male and female employees for doing “the same or substantially similar work.” The law was originally passed to bring women’s wages up to a fair level.

EXCEPTIONS: However, if the wage difference between the male and female employees is based upon a “seniority system, a merit system, a system measuring earnings by quantity or quality of production,” then the prohibition against paying unequal wages to males and females does not apply.

COMPLAINTS CAN BE FILED BY CURRENT AND FORMER EMPLOYEES: Illinois Equal Pay Act complaints may be filed by either a current employee or a former employee (and by a woman or a man). Also, the Illinois Department of Labor can decide to do an investigation on its own motion.

Employees who file Illinois Equal Pay Act complaints can ask the Illinois Department of Labor to keep their identity confidential. The Illinois Department of Labor will honor this request for anonymity.

The Illinois Department of Labor may follow up on a complaint by either written or oral questions, visit to the company’s location, telephone call, etc.

STATUTE OF LIMITATIONS FOR FILING COMPLAINT: Illinois employers often worry about how long a disgruntled employee may have to file an Equal Pay Act complaint. All complaints under the Equal Pay Act must be filed within one year from the date of the alleged underpayment. This is of course a relatively short statute of limitations.

Under the Illinois Equal Pay Act, complaints may also be filed alleging retaliatory discharge or retaliatory discrimination.

DOES THE ACT APPLY IF THE MALE AND FEMALE WORK AT TWO DIFFERENT PHYSICAL LOCATIONS: Illinois employers often ask if a male and female work at two different physical locations, does the Illinois Equal Pay Act still apply. The answer is that male and female employees must receive equal pay for the same or substantially similar work when they work for the same employer as long as they are both working in the same county.

JOB TITLES ARE NOT DETERMINATIVE: Job titles do not rule under the Illinois Equal Pay Act. Job titles are not considered determinative of whether or not male and female employees actually perform the same or substantially similar work.

INVESTIGATION CAN GO BACK THREE YEARS: Illinois employers often wonder how far back the Illinois Department of Labor will go in an equal pay investigation. The answer is that the Illinois Department of Labor will go back and investigate up to three years prior to the date the Illinois Equal Pay Act complaint was actually filed.

INDIVIDUAL LIABILITY: Bad news for employers. Governor Pat Quinn signed Senate Bill 2847 (P.A. 97-0903) on August 6, 2012, which amends the Illinois Equal Pay Act to include individual liability. This amendment became effective January 1, 2013. Prior to the change in the law, officers of a corporation or agents of a company could not be held individually liable to pay owed wages for violations of the law by the employer.

VIOLATIONS: If an employer is found guilty of pay discrimination, the employer will be required to make up the wage difference to the employee (and may be subject to pay legal costs and civil fines up to $2,500 per violation).

Because of potential liability under the Illinois Equal Pay Act, Illinois employers should be certain that male and female employees doing the same or substantially similar work are paid equally (unless the wage difference is based upon a seniority system, merit system, a system measuring earnings by quantity or quality of production, etc.).

Employers should seek professional help in doing a self audit of the Company’s wage scale for each job category.

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554.