September 28, 2009Client Alert

What Employers Need to Know About Three Recent Amendments to Illinois Employment Laws

Illinois Governor Quinn recently signed three bills into law that expand employee rights and protections and impose additional obligations on Illinois employers. The bills amend the Illinois Equal Pay Act (“IEPA”), the Illinois Human Rights Act (“IHRA”), and the Illinois Victims Economic Security and Safety Act (“VESSA”).

The amendments to the IEPA make it easier for employees to file complaints with the Illinois Department of Labor and place heavier burdens on employers to preserve records. The amendments to the IHRA make “order of protection status” a protected class under the anti-discrimination laws. This amendment becomes effective January 1, 2010. The amendments to VESSA broaden coverage of the law, which requires employers to provide eight to twelve weeks of unpaid leave to victims of domestic or sexual violence based on the employer's size. This amendment became effective August 24, 2009.

Illinois Equal Pay Act Amendments

The IEPA applies to all employers in Illinois with four or more employees. It prohibits employers from paying unequal wages to men and women doing the same or substantially similar work, requiring equal skill, effort, responsibility, and under similar working conditions. Employers found liable for pay discrimination are required to make up the wage difference to the employee, as well as pay civil fines and the employee's legal fees.

Under the IEPA amendments, employees now have more time to file a wage complaint. Previously, an employee had only 180 days from the date the employee learned of the violation to file an administrative complaint, but now an employee may file a complaint within one year of the underpayment. Additionally, an employee now has four years (rather than three) from the date of underpayment to file a lawsuit against the employer. The IEPA amendments also change the method for determining when a wage violation has occurred. Previously, the limitations period began running from the date the employee learned of the underpayment, but now it starts on the date of underpayment, which occurs each time an employee is underpaid. Therefore, an employee may sue an employer based upon a compensation decision made many years before as long as that decision has affected the employee’s paycheck within the past four years. This amendment adopts the paycheck standard utilized in the Lilly Ledbetter Fair Pay Act, a federal law passed in January, 2009. In addition, the recent amendments to the IEPA impose greater record-keeping requirements on employers. Employers now must, for at least five years, “make and preserve records that document the name, address, and occupation of each employee, the wages paid to each employee, and any other information the Illinois Department of Labor Director may deem necessary and appropriate for enforcement.” Before the amendments, employers had to maintain records for only three years.

These changes put employers at greater risk for lawsuits under the IEPA. Employers should take proactive steps to ensure compliance with the IEPA. When considering different pay for two employees who do the same or substantially similar jobs, the employer must assess the reasons for the pay disparity. If the employer has a legitimate, non-discriminatory reason to proceed with the pay disparity, it must be able to articulate and document that reason. Moreover, to comply with the amendments, employers must now make and preserve records regarding each employee's wages and other information for at least five years.

Illinois Human Rights Act Amendments

The recent amendments to the IHRA protect an employee from discrimination based on his or her “order of protection status.” The IHRA defines the term “order of protection status” to mean “a person's status as being a person protected under an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 or an order of protection issued by a court of another state.” This means that employers may not make adverse employment decisions based on the fact that an employee has an order of protection. The amendment is in addition to the already existing prohibitions from discriminating against applicants and employees based on their race, color, religion, sex, national origin, ancestry, age, marital status, disability, military status, sexual orientation, or unfavorable discharge from military service.

Illinois Victims Economic Security and Safety Act

The amendments to VESSA expand rights for victims of domestic or sexual violence. Previously, VESSA required employers with 50 or more employees to allow employees who are victims of domestic or sexual violence to take up to 12 weeks of unpaid leave to seek medical attention, psychological or other counseling, legal assistance, or relocation. The amendments expand these protections to employees who work for smaller businesses. Under the new law, employers with 15-49 employees must provide up to eight weeks of unpaid leave to such victims, while employers with 50 or more employees must still provide up to twelve weeks of unpaid leave to victims. Employers may not require that employees substitute other forms of paid or unpaid leave, such as vacation, personal leave, or FMLA, instead of using VESSA leave. Employees, however, may elect to use those other forms of paid or unpaid leave if they so choose.

In addition, VESSA requires employers to provide “reasonable accommodations” to the known limitations of employees who are victims of domestic or sexual violence. The amendments specify that a reasonable accomodation must be timely and that “any exigent circumstances or danger facing the employee or his or her family or household member shall be considered in determining whether the accommodation is reasonable.” Employers have a duty to post a notice informing employees of the Act. The amendments also add a provision that when an employer fails to post a notice, that employer may not argue that an employee failed to inform the employer in advance that he or she needed leave under the Act.

For any questions concerning these new laws or any other employment law issues, please contact the
author(s) of this alert.

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