NFIB Illinois submitted comments during the Illinois Department of Labor’s (IDoL’s) public comment period for its rulemaking on Public Acts 103-539 and 104-17.

The purpose of the rulemaking is to provide administrative guidance and clarity in the implementation of the state’s new pay transparency provisions for job postings that went into effect on January 1, 2025.

Under Public Act 103-539, Illinois employers with 15 or more employees must include the position’s pay scale and benefits on a job posting.

NFIB IL’s comments can be read below.

The National Federation of Independent Business (NFIB)—representing over 10,000 small and independent businesses in Illinois—offers the enclosed comments on the proposed rules to implement Public Acts 103-539 and 104-17. Public Act 103-539 was signed into law on August 11, 2023, and went into effect on January 1, 2025. Public Act 104-17 was signed into law on June 30, 2025, and went into effect on the same day. The rulemaking was published in the Illinois Register on September 19, 2025.

The Illinois Administrative Procedure Act outlines procedures and steps state agencies must take in the rulemaking process to reduce “the impact of the rulemaking on small businesses.” (5 ILCS 100/5-30(a)) These requirements are laid out in 5 ILCS 100/5-30 and 5 ILCS 100/5-40 and are binding upon rulemaking agencies.

NFIB submits these comments about the proposed rulemaking on behalf of its more than 10,000 small and independent business members in Illinois.  

Regulatory Flexibility Analysis

As outlined above, state rulemaking agencies must comply with the mandates and requirements of the Administrative Procedure Act (5 ILCS 100). The Administrative Procedure Act requires agencies to take steps to provide “regulatory flexibility” toward small businesses if there are “legal and feasible” methods to meet “statutory objectives.” (5 ILCS 100/5-30)

Subsections (a) and (b) outline agency requirements to accommodate small businesses’ unique needs and challenges.

Subsection (c) mandates that “[p]rior to filing for publication in the Illinois Register of any proposed rule or amendment that may have an adverse impact on small businesses,” the preparing agency “must prepare an economic impact analysis which shall be filed with the proposed rule and publicized in the Illinois Register together with the proposed rule.” The Administrative Procedure Act provides strict guidelines for the required economic impact analysis. It must include:

1. “An identification of the types and estimate of the number of small businesses subject to the proposed rule or amendment.” (5 ILCS 100/5-30(c)(1))

The Department’s rulemaking provided the types but failed to provide an estimate on the number of small businesses subject to the proposed rule.

2. “A statement of the probable positive or negative economic effect on impacted small businesses.” (5 ILCS 100/5-30(c)(3))

The Department did not include this statement in its rulemaking.

To protect small businesses and comply with the Administrative Procedures Act, rulemakings must comply with the “regulatory flexibility” requirements of 5 ILCS 100/5-30.

Section 320.200 (b), Section 320.210, & 320.230

The proposed rulemaking includes provisions that run contrary to the plain reading of the Equal Pay Act of 2003.

The proposed Section 320.200(b) states:

“2) To the extent possible, a complaint shall be in such detail as to substantially apprise the Department and the parties of the dates, place, parties, and facts with respect to the alleged violation of the Act.

“3) The Department has discretion to accept any complaint that lacks a complainant’s name and contact information if the complaint contains the information determined to be necessary for a proper investigation and review of the alleged violation contained in the complaint.” (Italics added for emphasis.)

This proposed language disregards the clear language of the statute. The statute specifies that complaints must be “complete” and “signed.” (820 ILCS 112/15(b)) While 320.210(a) notes that complaints must be “complete” and “signed,” the exceptions in 320.210(b) blow a gaping hole in these statutory requirements. An incomplete or unsigned complaint (“that lacks a complainant’s name and contact information”) violates specific statutory protections and parameters. Current rules make adequate provision for confidentiality while the case is pending at the administrative level. (Section 320.220) There is no language in either Public Act 103-539 or Public Act 104-17 to justify opening the door for unsigned or anonymous complaints.

The clear statutory requirement is reinforced by current administrative rules. Despite no statutory change in either Public Act 103-539 or Public Act 104-17 to justify the alteration, the proposed rulemaking would strip current language from the existing rules that requires “the full name and address of the complainant.” (320.210(a)(1)) Existing rules also provide for complainants to “perfect” “substantially” compliant but incomplete complaints within 30 days—or be subject to dismissal. (Section 320.230)

The proposed rules additionally remove the currently outlined requirements of what information must be included in any such complaint, replacing these clear standards with the vague catch-all phrase “[t]o the extent possible, a complaint shall be in such detail as to substantially apprise the Department and parties of the dates, place, parties, and facts with respect to the alleged violation of the Act.” (Section 320.200(b)(2))

These revisions to existing rules disregard existing statutory requirements. Nothing in the two public acts referenced by the Department justify these changes and the Department, in its rulemaking, fails to explain why its previous interpretation of statute, as reflected by current administrative rules, is incorrect.

Section 320.260

The proposed rulemaking limits a statutory provision to protect small businesses, curtailing its applicability in direct contradiction of the plain reading of the statute. Section 30(d) of the Equal Pay Act of 2003 reads: “In determining the amount of the penalty under this Section, the appropriateness of the penalty to the size of the business of the employer charged and the gravity of the violation shall be considered.” (820 ILCS 112/30(d)) (Italics added for emphasis) Subsection (d) explicitly states that this consideration applies to all penalties assessed under Section 30.

Section 30 lays out multiple penalty frameworks, most notably in subsection (c) which covers any violation of the act, “except for a violation of subsection (b-25) of Section 10,” and subsections (c-10) & (c-15) which cover violations of subsection (b-25). Section 30 specifically includes penalties for “[e]mployers who violate any provision of this Act or any rule adopted under the Act.” (820 ILCS 112/30(c))

The proposed rulemaking applies the small business protections of subsection (d) to the proposed penalty rules for the statutory subsections (c-10) and (c-15) in the proposed Section 320.260(b) of the administrative rulemaking, which is correct.

The rulemaking, however, in disregard to the plain statutory language fails to apply this protective language to penalties assessed under the statutory subsection (c) in the proposed Section 320-260(c). This oversight could, through administrative rules, limit a key statutory protection for small businesses subject to the penalties applied under 820 ILCS 112/30(c). The Department should rectify this deficiency and add the protective language to Section 320-260(c) of the proposed rulemaking to align the rulemaking with the statutory language.

Conclusion

NFIB appreciates the Department’s review and consideration of these concerns and stands ready to work with the Department and General Assembly to address and resolve these and other concerns that may arise.