United States: Sharp Curve Ahead! An Employer's Roadmap To Recent Legislative Developments In Illinois

Last Updated: October 7 2019
Article by Jennifer Schilling and Kyle Mueller

The Illinois legislature has been quite active, leaving many employers wondering: "Is Illinois the new California?" Some measures, like Chicago's Fair Workweek Ordinance, are new, while other laws amended existing statutes, including the Equal Pay Act, the Illinois Human Rights Act, and the Wage Payment and Collection Act. This article will cover certain wide-ranging developments and trends, from recreational marijuana use and how legalization impacts workplace policies, to Illinois' new #MeToo law requiring sweeping changes for employers.

Changes Effective September 2019

Equal Pay Act Amendments

Beginning September 29, 2019, Illinois' Equal Pay Act will provide even broader pay protections to Illinois workers. The statute now requires employers to compensate employees equally, without regard to sex or race, where they perform substantially similar work that requires substantially equal skill, effort, and responsibility. This expands the statute's previous requirement of equal pay for the performance of work that required equal skill, effort, and responsibility.

The statute continues to prohibit employers from interfering with an employee's right to openly discuss their wages. As amended, the statute further prohibits employers from requiring an employee to sign a contract or waiver prohibiting the employee from discussing their own compensation.

The statute also includes a salary history ban, adding Illinois to the growing list of states prohibiting employers from soliciting such information. Illinois employers may not: (1) screen job applicants based on their salary history, by requiring that applicants satisfy a minimum or maximum compensation criteria; (2) request or require salary history be provided as a condition of being interviewed, or considered for employment; or (3) otherwise request or require applicants to disclose salary history information as a condition of employment. The salary history ban further precludes employers from seeking an applicant's salary history information from the applicant's current or former employers, unless that salary history is a matter of public record.

More information on the amendments to the Equal Pay Act can be found here.

Changes Coming in 2020 – Let's Get Ready

Increased Minimum Wage

Beginning January 1, 2020, the state's minimum wage will increase in increments, reaching $15.00 per hour by 2025. For workers at least 18 years old, hourly rates will go from $8.25 to $9.25 per hour, beginning on January 1, 2020. After six months, the hourly minimum will increase to $10 per hour through the end of 2020. Thereafter, the minimum wage will increase one dollar per hour on the first day of each year, until it reaches $15 per hour on January 1, 2025.

More information on the minimum wage increases can be found here.

The Chicago Fair Workweek Ordinance

The Chicago Fair Workweek Ordinance, effective July 1, 2020, borrows from similar ordinances adopted in other major cities such as New York, San Francisco and Seattle. While initially designed to address unpredictable schedules in the restaurant and retail industries, the Ordinance applies more broadly to large building services, healthcare, hotel, manufacturing, restaurant, retail, and warehouse employers.

The Ordinance requires employers to provide written notice 10 days in advance of a new schedule (14 days in advance beginning July 1, 2022). Employees have a right to decline to work any hours added within the 10- (or 14-) day window. Moreover, employers must pay extra compensation to an employee whose schedule is changed within the 10- (or 14-) day window, including:

  • One hour of "Predictability Pay" for each shift in which the employer: (a) adds hours of work; (b) changes the date or time of a work shift with no loss of hours; or (c) cancels or subtracts hours from a regular or on-call shift with more than 24 hours' notice; and
  • 50% of the employee's regular rate of pay for any scheduled hours the employee does not work because the employer cancels or subtracts hours from a regular or on-call shift with less than 24 hours' notice, including while the employee is working on a shift.

Extra pay is not required in all instances of a late schedule change. For example, schedule changes necessitated by failure of public utilities, acts of nature, or war, or as agreed to or requested by the employee, will not trigger extra pay.

The Ordinance further requires employers to offer additional shifts to current employees qualified to perform the work before hiring additional staff.

More information on the Chicago Fair Workweek Ordinance can be found here.

Workplace Protections for Recreational Marijuana Users

On January 1, 2020, Illinois will become the latest state to legalize marijuana for adult recreational use. The state's change in drug policy is accompanied by workplace protections for marijuana users, including a ban on discrimination against employees who use "lawful products off the premises of the employer during nonworking and non-call hours."

That said, employers can continue to adopt and enforce zero-tolerance or drug-free work policies. Employers may discipline marijuana users if the use "impairs an employee's ability to perform the employee's assigned duties." Moreover, employers are not required to "permit an employee to be under the influence" of marijuana "in the employer's workplace or while performing the employee's job duties or while on call."

The question employers are asking is: how do we enforce a zero-tolerance standard when employees cannot be discriminated against for using during non-work hours? This is a great question since, unlike a blood alcohol test, a positive marijuana test will not definitively tell whether an employee is currently under the influence. Indeed, the new protections afforded to individuals who use cannabis as a "lawful product" are expected to significantly limit employers' ability to take disciplinary action in the event an employee tests positive for marijuana. Employers should thus ensure they have robust reasonable-suspicion drug-testing programs and supervisory impairment-determination training, including a clear written policy outlining the circumstances that can trigger reasonable-suspicion drug testing. Employers in Illinois should take the opportunity to review their existing workplace drug and alcohol-testing policies promptly to ensure compliance by the law's approaching effective date.

Employers should be aware that the act contains a limited "safe harbor" provision protecting, among other things, the following employer decisions:

  • subjecting an employee or applicant to reasonable drug and alcohol testing under an employer's workplace drug policy;
  • acting on an employee's refusal to be tested or cooperate in testing procedures;
  • disciplining or terminating employment, based on the employer's good-faith belief that an employee used or possessed cannabis in the employer's workplace, while performing the employee's job duties, or while on call in violation of the employer's employment;
  • disciplining or terminating employment, based on the employer's good-faith belief that an employee was impaired as a result of the use of cannabis or under the influence of cannabis while at the employer's workplace, while performing the employee's job duties, or while on call in violation of the employer's workplace drug policy; or
  • any injury, loss, or liability to a third party based on an employee's allegedly impaired actions, if the employer neither knew nor had reason to know that the employee was impaired.

More information on the workplace protections for recreational marijuana users can be found here.

#MeToo Protections

Joining other jurisdictions such as New York and California, Illinois has responded to the #MeToo movement by enacting new laws and amending others to increase employee protections from harassment and discrimination. These laws are scheduled largely to take effect on January 1, 2020 (with the exception of the employer disclosure requirement noted below).

Illinois Workplace Transparency Act

Illinois adopted the Workplace Transparency Act with the expressly stated purpose of "securing individuals' freedom from unlawful discrimination and harassment in the workplace." To accomplish this goal, the law broadens employer liability under the Illinois Human Rights Act (IHRA) to include unlawful employment practices of non-employees, such as contractors and consultants.

The law also targets employer contract rights in two ways.

1. Requirements for Settlement or Termination Agreements

Under the Workplace Transparency Act, any settlement or termination agreement related to alleged unlawful employment practices is valid only if the employee, former employee or prospective employee:

  • Has 21 calendar days to consider the agreement, and 7 days to revoke it after execution;
  • Is notified in writing to have an attorney review the agreement;
  • Agrees that the document's confidentiality is their "documented preference" and is mutually beneficial to both parties;
  • Has bargained-for consideration in exchange for confidentiality; and
  • Is not waiving claims arising after the date of the agreement.

Employers must also ensure that the employee's waiver of claims is made "knowing and voluntarily." Employers may not unilaterally prohibit truthful statements or disclosures regarding unlawful employment practices.

2. Limits on Arbitration Agreements

The Workplace Transparency Act further provides that a unilateral condition of employment or continued employment that prevents employees or prospective employees from making truthful statements or disclosures of unlawful employment practices, or requires arbitration of existing or future claims, is "void to the extent that it denies the employee a substantive or procedural right or remedy."

Employers are permitted, however, to negotiate mutual agreements to arbitrate on an individual basis in exchange for consideration. As a minor concession to employers with existing arbitration agreements, the law provides for the severability of non-compliant terms from an otherwise enforceable agreement.

Employers seeking to challenge the enforceability of the Workplace Transparency Act restrictions on arbitration agreements may have the opportunity to do so, as there is a strong argument that the Federal Arbitration Act preempts this aspect of the law.

Amendments to the IHRA

More #MeToo rights are implemented through recent amendments to the Illinois IHRA.

Effective January 1, 2020, employers must provide sexual harassment prevention training to all employees at least once per year. The Illinois Department of Human Rights (IDHR) will be tasked with creating a model training program that will be provided to the public at no cost. The amendments also broaden protections based on a "perceived" protected category including race, age, sex, national origin, pregnancy, etc.

Employers will have new reporting requirements beginning July 1, 2020, and every July 1 thereafter. An employer with at least one adverse judgment or ruling against it in the preceding calendar year must disclose to the IDHR the total number of final, non-appealable judgments or final, non-appealable administrative rulings entered against the employer in which there was a finding of sexual harassment or unlawful discrimination.

The amendments are particularly stringent on employers in the restaurant/bar industry, which are required to provide each employee with a copy of the company's sexual harassment policy within the first week of employment. The policy must, among other requirements, detail how to report sexual harassment, including options on how to make a confidential report to a manager, owner, corporate headquarters, human resources department, or via another internal reporting mechanism.

Amendments to the Victims' Economic Security and Safety Act

Further #MeToo protections are reflected in amendments to the Victims' Economic Security and Safety Act (VESSA). VESSA, which mandates 12 weeks of unpaid leave for victims of domestic and sexual violence, has been expanded to cover victims of "gender violence" as well. Gender violence includes criminal acts of violence committed on the basis of a person's actual or perceived sex or gender (regardless of whether the acts resulted in criminal charges, prosecution, or conviction), as well as any threat of criminal acts of violence based on gender.

Hotel and Casino Employee Safety Act

Employees within the hotel and casino industries who work alone must be provided with a "panic button" that will notify help if they are in danger of sexual assault or harassment. The device must be provided at no cost to the employee.

Employers also have special obligations to develop written policies protecting employees from harassment and sexual assault.

More information on #MeToo protections can be found here.

In Case You Missed It – Laws Already In Effect

IHRA Amended Twice in 2018

The #MeToo efforts of the Illinois legislature started in 2018 with two amendments broadening rights under the IHRA. In addition to the recent amendments set forth above, in June and August 2018, the IRHA was revised to provide individuals with 300 days (not the former 180 days) to file charges of discrimination and the right to opt out of the IDHR's investigation and commence legal action in court. The amendments also updated employer posting and handbook requirements concerning an employee's right to be free from sexual harassment. The updated notice and other information is available from the IDHR, here.

Expanded Protections for Nursing Mothers

Illinois has made several significant amendments to the Nursing Mothers in the Workplace Act, including an implicit requirement to compensate employees for time spent expressing breast milk.

The amendments require "reasonable break time" (instead of "unpaid break time") each time an employee needs to express milk for up to one year after the child's birth. An employee's break time "may" (instead of "must, if possible") run concurrently with any break time already otherwise provided. These amendments appear to prohibit employers from reducing an employee's compensation for time spent for the purpose of expressing milk. Previously, employees could use their existing compensated breaks (usually 20 minutes or less pursuant to the federal Fair Labor Standards Act) to express milk, but any excess break time could be uncompensated. It is now implied that reasonable lactation breaks lasting longer than 20 minutes must be compensated.

The amendments also clarify the employer exemption to these requirements. Previously, employers were exempt from providing breaks if doing so would "unduly disrupt the employer's operations." This phrase was not defined. The amendments modify this language to require employers to prove an "undue hardship," as defined under the IHRA.

More information on the expanded protections for nursing mothers can be found here.

Amendments to the Illinois Wage Payment and Collection Act

Illinois became the ninth jurisdiction to impose expense reimbursement requirements on employers. In amending its Wage Payment and Collection Act, the state now requires employers to reimburse employees for all reasonable "necessary expenses" that are "directly related to services performed for [the] employer" and incurred primarily for the benefit of the employer. For "necessary expenses" to be reimbursable: (1) the employer must have "authorized or required" the employee to incur the expense; and (2) the expense reimbursement request must be submitted to the employer in writing within 30 calendar days of the date the expense was incurred, with appropriate documentation substantiating the expense.

More information on the amendments to the Illinois Wage Payment and Collection Act can be found here.

Job Protection for Military Service Member Employees

The Illinois Service Member Employment and Reemployment Rights Act (ISERRA), effective January 1, 2019, consolidates several existing Illinois statutes to expand the job protections afforded to military service members.

ISERRA's basic protections provide that service member employees are not required to receive permission for military leave. Instead, service members are required simply to provide advance notice of pending service. In certain circumstances, employers may require notice on official letterhead of the appropriate military authority. Military necessity, however, is an exception to the advance notice requirement.

Further, employers may not impose conditions on employee use of military leave, such as requiring an employee to find a shift replacement. Nonetheless, employers are allowed to voice their concerns over the timing, frequency or duration of military leave with the appropriate military authority.

In addition to reinstatement rights under the similar federal law (USERRA), under ISERRA, service members absent on military leave must be credited with the average of performance ratings or evaluations received for the three years immediately prior to the military leave. The performance rating must not be less than the rating that the employee received for the rated period immediately prior to the military leave. Seniority and service requirements for promotions or other benefits must be counted as civilian service.

Public employers have additional obligations to provide paid time off of up to 30 days for concurrent pay for periods of annual military training, or for up to 60 days of differential pay per calendar year for periods of active service.

All employers must display a poster about ISERRA rights. The poster can be found here.

Uptick in Illinois Biometric Information Privacy Act Litigation

Does your employer use time clocks with a fingerprint scanner, or door locks with a fingerprint or handprint scanner? Employers that rely on any current or future technology that is or will capture biometric data (such as retina, iris, or hand scans, or voice recognition) should be aware of the Biometric Information Privacy Act (BIPA) and its obligations on employers that use such technology.

Because biometric information cannot be changed, unlike a Social Security number, the BIPA imposes specific standards requiring employers to develop written policies, retention criteria, and guidelines for permanently destroying all such biometric identifiers when the purpose for which they were collected has been achieved.

These obligations became more salient on January 25, 2019, when the Illinois Supreme Court held that individuals alleging a violation under the BIPA need not suffer any actual damages in order to sue under the statute. A mere failure to comply with the BIPA's notice and consent requirements—even without any injury to the individual—is enough to subject an employer to severe penalties. See Rosenbach v. Six Flags Entm't Corp., 2019 IL 123186 (Ill. Jan. 25, 2019). This holding has led to more than 100 BIPA class actions being filed in Illinois state and federal courts since the end of January.

We will continue to monitor major legislative developments and other significant labor and employment trends in Illinois.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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