We believe that aggregated data that is not associated with a specific person or business may be made public and will be discoverable through a FOIA request. Additionally, we believe a current employee of a covered business may receive anonymized data regarding their job classification and the pay for that classification collected from their employer.

The recent amendments to the Equal Pay Act of 2003 generally provide that any “individually identifiable information” submitted to the IDOL in connection with an equal pay registration application or equal pay compliance statement that is associated with a specific person or business “shall be considered confidential information and not subject to disclosure pursuant to the Illinois Freedom of information Act.”

However, “aggregate data or reports that are reasonably calculated to prevent the association of any data with any individual business or person” are not considered to be confidential information, and the IDOL may aggregate data from registration certificate applications. Further, the IDOL’s “decision to issue, not issue, revoke, or suspend an equal pay registration certificate is public information.”

We spoke with a representative from the IDOL who indicated that they may publish reports of aggregated data on a county level. For example, such a report might indicate that “in Cook County, a white male worker’s average wage is X, and a white female worker’s average wage is Y.” Such information also may be aggregated based on industry or job category. The IDOL representative said they were not aware of any plans to publish a list of covered businesses whose equal pay registrations were not issued, suspended, or revoked, but that the IDOL is not prohibited from doing so.

Additionally, current employees “of a covered business may request anonymized data regarding their job classification or title and the pay for that classification,” and the IDOL representative confirmed that this data would be specific to an employee’s employer. We note that the section of the Equal Pay Act of 2003 that allows for these requests of anonymized data is “notwithstanding” another provision stating that information associated with a specific business is confidential. The law also allows the IDOL to share data and identifiable information with the Illinois Department of Human Rights and Illinois Attorney General pursuant to their enforcement of the Illinois Human Rights Act.

Further clarification regarding the recent amendments maybe set forth in future rulemaking, but the IDOL representative said a timeline for the rulemaking process has not yet been determined. 

Also, under recent amendments to the Business Corporation Act of 1983, corporations required to file an EEO-1 report with the Equal Employment Opportunity Commission must include in their annual report to the Secretary of State “information that is substantially similar to the employment data reported under Section D of the corporation’s EEO-1,” and the Secretary of State must publish “the data on the gender, race, and ethnicity of each corporation’s employees” on its website within ninety days of receipt. We note that while banks are not required to file an annual report with the Secretary of State, bank holding companies are required to do so.

For resources related to our guidance, please see:

• Public Act 102-36, Equal Pay Act of 2003, 820 ILCS 112/11 (“For the purposes of this Section 11 only, ‘business’ means any private employer who has more than 100 employees in the State of Illinois and is required to file an Annual Employer Information Report EEO-1 with the Equal Employment Opportunity Commission, but does not include the State of Illinois or any political subdivision, municipal corporation, or other governmental unit or agency.”)

• Public Act 102-36, Equal Pay Act of 2003, 820 ILCS 112/11(h)(1) (“Any individually identifiable information submitted to the Director within or related to an equal pay registration application or otherwise provided by an employer in its equal pay compliance statement under subsection (c) shall be considered confidential information and not subject to disclosure pursuant to the Illinois Freedom of Information Act. As used in this Section, ‘individually identifiable information’ means data submitted pursuant to this Section that is associated with a specific person or business. Aggregate data or reports that are reasonably calculated to prevent the association of any data with any individual business or person are not confidential information. Aggregate data shall include the job category and the average hourly wage by county for each gender, race, and ethnicity category on the registration certificate applications. The Department of Labor may compile aggregate data from registration certificate applications.”)

• Public Act 102-36, Equal Pay Act of 2003, 820 ILCS 112/11(c)(a) (“A business shall apply for an equal pay registration certificate by paying a $150 filing fee and submitting wage records and an equal pay compliance statement to the Director as follows . . .”)

• Public Act 102-36, Equal Pay Act of 2003, 820 ILCS 112/11(h)(2) (“The Director's decision to issue, not issue, revoke, or suspend an equal pay registration certificate is public information.”)

• Public Act 102-36, Equal Pay Act of 2003, 820 ILCS 112/11(h)(3) (“Notwithstanding this subsection (h), a current employee of a covered business may request anonymized data regarding their job classification or title and the pay for that classification. No individually identifiable information may be provided to an employee making a request under this paragraph.”)

• Public Act 102-36, Equal Pay Act of 2003, 820 ILCS 112/11(h)(4) (“Notwithstanding this subsection (h), the Department may share data and identifiable information with the Department of Human Rights, pursuant to its enforcement of Article 2 of the Illinois Human Rights Act, or the Office of the Attorney General, pursuant to its enforcement of Section 10-104 of the Illinois Human Rights Act.”)

• Public Act 102-36, Equal Pay Act of 2003, 820 ILCS 112/11(h)(5) (“Any Department employee who willfully and knowingly divulges, except in accordance with a proper judicial order or otherwise provided by law, confidential information received by the Department from any business pursuant to this Act shall be deemed to have violated the State Officials and Employees Ethics Act and be subject to the penalties established under subsections (e) and (f) of Section 50-5 of that Act after investigation and opportunity for hearing before the Executive Ethics Commission in accordance with Section 20-50 of that Act.”)

• Illinois Business Corporation Act of 1983, 805 ILCS 5/14.05 (“Each domestic corporation organized under any general law or special act of this State authorizing the corporation to issue shares, other than homestead associations, building and loan associations, banks and insurance companies . . . shall file, within the time prescribed by this Act, an annual report setting forth: . . . . (m) For those corporations required to file an Employer Information Report EEO-1 with the Equal Employment Opportunity Commission, information that is substantially similar to the employment data reported under Section D of the corporation's EEO-1 in a format approved by the Secretary of State. For each corporation that submits data under this paragraph, the Secretary of State shall publish the data on the gender, race, and ethnicity of each corporation's employees on the Secretary of State's official website. The Secretary of State shall publish such information within 90 days of receipt of a properly filed annual report or as soon thereafter as practicable.”)