The Illinois Department of Labor (IDOL) recently published its final rules regarding Illinois Equal Pay Registration Certificates (EPRC). The final rules largely adopt the proposed rules issued last June, which was discussed here in a prior post. However, the rules include a few notable changes.
As a reminder, the law requires an authorized agent of the business to certify the following items to receive an EPRC:
- The employer is in compliance with the EPA, Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Illinois Human Rights Act, the Equal Wage Act, and other antidiscrimination laws;
- The average compensation for the employer’s female and minority workers is not consistently below the average compensation for male and non-minority workers within each job category in the EEO-1 Report, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, education or training, job location, use of a collective bargaining agreement, or other mitigating factors;
- The employer does not restrict employees of one sex to certain job classifications, and makes retention and promotion decisions without regard to sex;
- The employer corrects wage and benefit disparities when identified to ensure statutory compliance;
- How often the employer evaluates employees’ wages and benefits; and
- The approach the employer takes in determining what level of wages and benefits to pay its employees (g., wage and salary survey).
The final rules clarify that “compliance” with those laws means that, as of the date of the application, the business either: (1) has not had any final and non-appealable adverse judgment or final and non-appealable administrative ruling entered against it in the preceding two years; or (2) has corrected any final and non-appealable adverse judgment or final and non-appealable administrative ruling entered against it and has evidence of the underlying judgment or ruling and the corrective measures undertaken.
The final rules confirm that all businesses shall submit an enrollment form to the IDOL that includes contact information for the business. To the extent employers have not completed this enrollment yet, they should do so as soon as possible. The form can be found here: Equal Pay Act Registration Certificate (EPARC) (office.com)
The final rules specify that employers must preserve records that document:
- The name, address, and occupation of each employee
- The wages paid to each employee and any other forms of compensation provided by the employer
- Dates of hire
- Dates of promotion
- Dates of pay increases
- Dates any other compensation was provided by the employer, if applicable, for each employee
- Payroll Records
As the Equal Pay Act rules already require, employers should also preserve records made in the regular course of business related to personnel records, qualifications, job descriptions, etc. that may help explain the basis for payment of wage differentials between employees. While there is no specified time frame, best practice is to preserve the records for five years as that is the statute of limitations for claims under the Illinois law. The final regulations also clarify that IDOL investigators may request records dating back five years for investigation purposes.
The IDOL outlined its investigation process in more detail, both regarding general pay complaints and regarding investigations prior to suspension or revocation of an Equal Pay Registration Certificate.
The IDOL clarified that when it has received a complaint and has decided not to refer the matter to the Department of Human Rights, the IDOL will investigate pursuant to the following timeline:
- Within 30 days of the complaint, IDOL will provide a written notice of investigation with the substance of the alleged violation and an opportunity to respond
- Respondent must submit its response within 30 business days of receiving the notice of investigation.
As part of its investigation, IDOL may request documents and records regarding wages, hours, and other conditions and practices of employment and has a right to inspect as needed. IDOL may also question employees and otherwise investigate as it deems necessary. As stated above, the IDOL may request up to five years of records.
The final rules also explain if the IDOL wants to suspend or revoke a EPRC, it must first conduct an investigation. The final regulations confer multiple investigative powers, including: conducting audits, interviewing workers, administering oaths, taking depositions, and sending subpoenas for all relevant evidence or testimony. The IDOL must give notice of the investigation within 30 days after starting the investigation and provide the basis for the investigation. The business will have an opportunity to respond to the notice within 30 business days of receiving the notice.
Open Questions and Next Steps
Covered employers should submit their enrollment forms to the IDOL as soon as possible. The final rules do not address how businesses should evaluate whether “the average compensation for the business’s female and minorities” is “consistently below the average compensation for its male and non-minority employees within each of the EEO-1 job categories.” This is an issue that employers will continue to grapple with while completing their first certification. A privileged pay audit is a helpful tool to evaluate your pay practices in a proactive manner and ensure that you are prepared to explain your compensation practices if requested by the IDOL.
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