Pay Transparency and Promotional Opportunity under the Illinois Equal Pay Act of 2003

Because pay disparities may arise or become apparent at the start of the employment relationship, the IL EPA seeks to increase transparency in pay, benefits, and opportunities at the time of hire.

For any job posting for work with a covered employer, the job posting – whether internal or external – must include the pay scale and benefits for that position.

If a covered employer engages a third party to make a job posting known, Pay Transparency applies to their actions as well.

Pay Transparency applies to job postings for all types of positions, including those for temporary, student, part-time, seasonal, intermittent, confidential, and union-covered positions. The only explicit Pay Transparency exemption is for positions in the State of Illinois workforce designated as exempt from competitive selection, though the general exception from IL EPA coverage for independent contractor positions also applies here.

A related provision requires employers to let their staff know of their publicly-advertised job opportunities, so they can consider whether to apply (“Promotional Opportunity”). 820 ILCS 112/10(b-25). If an employer, or third party engaged to act on their behalf, externally publishes a specific job posting, the employer must within 14 days make all opportunities known to all employees. This Promotional Opportunity aspect of job postings often is included in or referred to under the umbrella of Pay Transparency.

If an employer engages in the hiring process without a job posting, the employer or employment agency shall disclose to an applicant for employment the pay scale and benefits to be offered for the position prior to any offer or discussion of compensation and at the applicant's request, if a public or internal posting for the job, promotion, transfer, or other employment opportunity has not been made available to the applicant.

 Because Pay Transparency and Promotional Opportunity issues can depend on many facts, please view IDOL’s Frequently Asked Questions and Training Slides to get more information.  IDOL resources also include workplace posters and one-page fact sheets for employers and employees.

A specific job posting can meet IL EPA requirements for inclusion of pay scale and benefits by including in the posting a hyperlink (820 ILCS 112/10(b-25)), so long as the link leads directly to the pay and benefits for that position in the posting.

The use of a hyperlink to take jobseekers to a lengthy, complex, or voluminous resource that includes possible pay for a number of positions would not meet this requirement.

Posting of a relevant and up-to-date general benefits description in an easily accessible, central, and public location on an employer's website and referring to this posting in the job posting shall be deemed to satisfy the benefits posting requirement under this subsection (820 ILCS 112/10(b-25), so long as the general benefits description identifies the benefits available for that position in the posting.

The use of general benefits description would not be sufficient if it is lengthy, complex, or voluminous, or is so general that it does not tell a jobseeker what benefits go with the posted position (e.g, indicates that various types of benefits may be available depending on eligibility).

If a covered employer engages a third-party to act on its behalf related to a specific job posting for Illinois work, the third party’s actions are also covered by Pay Transparency.  820 ILCS 112/10(b-25). This is not true for third parties that the employer did not engage related to job postings, such as job boards that “scrape” postings from employer websites.

When a third party makes known a specific job posting for Illinois work that lacks required pay or benefit information, the third party may be held liable under the IL EPA unless it shows that the employer failed to provide the pay and benefit information for the job posting.  It is not a defense to the IL EPA that the third party has fewer than 15 employees so long as the employer that engaged them does, nor is it a defense that the third party is not in Illinois so long as it was engaged to make known a job posting for Illinois work.

Recruiters, employment or temporary agencies, job boards, and others may be third parties an employer engages to make a specific job posting known, and all must ensure that actions they take related to job postings for Illinois work include pay and benefit information. An individual written communication from a third party to a job prospect is subject to Pay Transparency if it is making known a specific job posting for Illinois work.

A third party engaged by the employer that externally publishes a specific job posting, announces it, or makes it known, or publishes it, can trigger the Promotional Opportunity obligation for the employer.

The IL EPA requires an employer subject to any provision of the IL EPA to “make and preserve” records that document the name, address, and occupation of each employee, the wages paid to each employee, the pay scale and benefits for each position, the job posting for each position, and any other information the Director may by rule deem necessary and appropriate for enforcement of this Act.  The employer must keep the records for at least five years. 820 ILCS 112/20. There are additional recordkeeping requirements for every employer set forth in 56 Ill. Admin. Code Section 320.140.

While the IL EPA does not proscribe the format an employer must use to make and preserve records regarding Pay Transparency and Promotional Opportunity, IDOL encourages employers to consider how they can most efficiently show that a specific job posting – or many of its postings – contained pay scale and benefits information.

In the event that IDOL receives a complaint about a job posting from a jobseeker, IDOL may ask the employer to demonstrate that a particular posting – or all its postings, including those announced, made known, or published by a third party – contained pay scale and benefit information. While an employer’s provision of information from its internal or external systems for human resources or hiring may be useful, a view of the job posting as it actually appeared when published is most persuasive.

IDOL encourages employers to maintain records of when they published each job posting, where they published it, and what it looked like and included when published. For job postings externally announced, made known, or published, IDOL urges employers to maintain records showing when and where each external posting was made, and when and where the employer made each opportunity known to its employees.

Particularly with regard to job postings that a third party announced, published, or made known, it is key for employers to maintain records of what they transmitted to the third party and when, and what the third party announced, published or made known and when. Since the IL EPA imposes recordkeeping duties on an employer, but not on a third party acting on the employer’s behalf, the employer’s recordkeeping about the third party and Pay Transparency is vital.

If IDOL investigates a Pay Transparency complaint and finds there is reasonable cause to believe that there was a violation of the IL EPA, the statute sets out possible consequences for Pay Transparency violations. 820 ILCS 112/30(c-5).

At the time that IDOL finds that a job posting did not comply with Pay Transparency, IDOL also must determine if the violative posting is “active”.  820 ILCS 112/30(c-10) and (c-15).  IDOL determines whether a job posting is active by looking at whether the position has been filled, how long the posting has been open to the public, any date range given for the posting, and whether the employer is still accepting applications. 

If IDOL determines that a job posting for Illinois work lacks required pay and benefit information, and the posting is still “active” when IDOL issues that determination, the IL EPA in many situations offers the employer (or third party they engaged for the job posting) an opportunity to “cure’” the violation in lieu of of IDOL imposing a penalty.  820 ILCS 112/30(c-10). Whether there is cure time allowed, and how much, depends on whether IDOL previously found that same party to have violated Pay Transparency.  IDOL typically will order the employer or third party to cure all Pay Transparency violations in the time allowed or to pay a penalty.

If IDOL determines that a job posting for Illinois work lacks required pay and benefit information, and the posting is not active at the time IDOL makes that determination, IDOL typically will order the employer or third party to pay a penalty. 820 ILCS 112/30(c-15).

The IL EPA sets outer limits for Pay Transparency penalties, depending largely on whether a particular employer or third party has previously been found responsible for a Pay Transparency “offense”, and gives IDOL discretion to determine penalties within those limits.  820 ILCS 112/30(c-10) and (c-15).

The IL EPA explicitly states that an employer or an employment agency “shall not refuse to interview, hire, promote, or employ, and shall not otherwise retaliate against, an applicant for employment or an employee for exercising any rights” related to Pay Transparency or Promotional Opportunity.  820 ILCS 112/10(b-30).

More broadly, the IL EPA makes it unlawful for any person to discharge or in any other manner discriminate against any individual because the individual filed or caused to be filed an IL EPA proceeding, gave testimony or information in an IL EPA proceeding (or is about to do so),  or failed to comply with any wage or salary history. 820 ILCS 112/35(b).

A person may file a complaint – anonymously or otherwise – about Pay Transparency or Promotional Opportunity, if within the past year, the person:

• Viewed and was aggrieved by a specific job posting for Illinois work that did not contain the position’s pay scale and benefits.
• While working for an employer that externally published a job posting, the employer did not make all promotional opportunities known to all employees using its typical method for sharing job-related information with employees.
• While an applicant for employment (including promotion, transfer, or other opportunity) without a job posting, requested the position’s pay scale and benefits prior to any offer or discussion of compensation and was not provided it.
• Was subjected to interference related to Pay Transparency or Promotional Opportunity by an employer, employment agency, or third party engaged by the employer related to job postings.
• Was subjected to discrimination or retaliation related to Pay Transparency or Promotional Opportunity by an employer, employment agency, or third party engaged by the employer related to job postings.

The complaint form for Pay Transparency issues can be found here.

NOTE: If you wish to file a complaint about Unequal Pay (including discussions of pay, pay history inquiries, recordkeeping, interference, or retaliation) AND Pay Transparency or Promotional Opportunity, you will need to fill out and submit to IDOL two different complaint forms. 

Filing process

The Pay Transparency complaint may be filled out and submitted electronically using the web-based form, or printed and submitted by US Mail, facsimile, physical delivery or email (DOL.EqualPay@Illnois.gov).

If you are filling out the complaint form electronically, please be advised that the form does not save your progress as you work through it.

A person who files an Pay Transparency complaint can view the steps of the Department’s process in the IL EPA regulation.

A note about anonymity in Pay Transparency complaints

A Pay Transparency complaint can be filed anonymously.

You also may include your name and contact information on the complaint but indicate that you wish to proceed anonymously.

When the Department receives an anonymous complaint solely about Pay Transparency, our practice is to check if there has been any prior Pay Transparency complaint against that respondent; if not, the Department will hold and monitor the complaint without further action until we receive a second complaint against the same respondent

The Department’s practice is to maintain anonymity of a complainant’s names during the administrative investigation of their Pay Transparency complaint when possible, but any person filing a Pay Transparency complaint should be aware that the Department’s ability to maintain confidentiality is limited in several scenarios:

• First, if a Pay Transparency complaint alleges retaliation for asserting an IL EPA right, the complainant’s name must be revealed to the respondent.
• Second, the IL EPA does not provide that complaints or any other documents related to Pay Transparency are confidential as a matter of law or exempt from production in the event that the Department receives a request pursuant to the Freedom of Information Act.

Pay Transparency Complaint Form