September 24, 2019Client Alert

Illinois Mid-Year Employment Law Update: Navigating Your Organization through the Sea of Employment Law Changes in Illinois

Illinois employers have faced a wave of new employment laws in 2019, with more to come in 2020. Some of these changes have gone relatively unnoticed, while others have been heavily covered in the press. This mid-year update highlights the top legal changes for Chicago and Illinois employers in 2019, as well as employment laws on the horizon in 2020.

Artificial Intelligence Video Interview Act | This new law, effective January 1, 2020, regulates the emerging practice of using artificial intelligence (AI) to analyze video-recorded job interviews. Under the new AI law, employers must take three steps before asking job applicants to submit to a video interview. First, employers must notify each applicant AI may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the job. Second, employers must provide each applicant with information explaining how the AI system works and what general types of characteristics it uses to evaluate applicants. Third, employers must obtain consent from the applicant to be evaluated by the AI program. Given the numerous privacy considerations that technology presents, employers should continue to expect new laws regulating the use of technology in the workplace.

Cannabis Regulation and Tax Act (Cannabis Act) | Beginning January 1, 2020, Illinois residents will be permitted to possess and purchase cannabis for personal, recreational use. This new legislation raises a host of employment issues for employers. Fortunately, the Cannabis Act protects employers’ business and property interests in three important ways. First, employers will be permitted to adopt and continue zero-tolerance or drug-free workplace policies. Second, employers may continue to prohibit employees from using or being under the influence of cannabis in the workplace, while performing job duties, or while on call. Third, employers may still lawfully enforce non-discriminatory policies for drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call.

However, the Cannabis Act restricts employers’ right to discipline or terminate an employee who violates an employer’s drug-related policies. Employers must have a good faith belief that the employee manifests “specific, articulable symptoms while working that decrease or lessen the employee’s job performance.”  Employees are entitled to a reasonable opportunity to contest an employer’s determination that s/he was under the influence or impaired by cannabis while on the job. The Cannabis Act also amends the state privacy law, which generally prohibits employers from discriminating against employees for their lawful, off-duty conduct, to specifically include cannabis. Now, employers must treat cannabis in the same way as other lawful products, such as alcohol and tobacco.

These restrictions create challenging issues for employers. Although drug testing is still permitted under the law, a positive drug test should not be treated as conclusive evidence that an employee was under the influence or impaired by cannabis while on the job. Drug tests do not reveal when an individual used or consumed cannabis, which often remains in an individual’s system long after use or consumption. Therefore, employees who use or consume cannabis while off duty may still test positive for cannabis during a required drug screening. Employers will need to be particularly sensitive to these issues when deciding whether to take adverse action against an employee perceived to be under the influence or impaired by cannabis.

Chicago Fair Workweek Ordinance | Beginning July 1, 2020, Chicago employers in the building services, healthcare, hotel, manufacturing, restaurant, retail, and warehouse services industries will be subject to new predictive scheduling requirements. The ordinance applies only to employers (i) operating in one of the covered industries, (ii) which employ at least 100 employees globally, (iii) of which at least 50 are covered employees. To be covered, an employee must earn less than $50,000 per year, or $26.00 per hour. Prior to or at the start of employment, employers must provide covered employees a “good faith estimate” in writing of the employee’s anticipated days and hours of work for the first 90 days of employment, including: (i) the employee’s average number of weekly hours; (ii) whether the employee can expect to be on-call; and (iii) a subset of times or shifts that the employee can expect to work. Significantly, employees may request that their employer modify the projected days and hours of work. Employers may, however, accept or reject the employee’s request in their sole discretion.

Employers are also required to provide written notice of the employee’s work hours by posting the work schedule at least 10 days before the first day of any new schedule. Beginning July 1, 2022, employers will have up to 14 days to post the work schedule. Employers may change the work schedule at any time prior to the 10-day deadline without incurring a penalty. However, after the 10-day deadline lapses, employers face stiff consequences for making schedule changes.

In addition to other requirements, the law provides that employees may decline work schedule hours that are less than 10 hours after the end of a previous day’s shift. Employees who work a shift beginning less than 10 hours after the end of a previous day’s shift must be paid premium pay, at a rate of 1.25 times the employee’s regular pay rate. Furthermore, employees have a right to request a modified work schedule, such as additional shifts or hours, changes in days of work, changes in shift start and end times, permission to exchange shifts with other employees, limitations on availability, part-time or part-year employment, job sharing arrangements, or a reduction or change in work duties.

Collective Bargaining Freedom Act | Earlier this year, Illinois enacted the Collective Bargaining Freedom Act, P.A. 101-0003, which allows labor organizations and employers covered by the National Labor Relations Act to execute security agreements requiring membership in a union. Union security clauses require that all employees covered by a collective bargaining agreement pay union dues as a condition of employment. The law is an explicit front to right-to-work legislation that has trended in other states around the country. It also prohibits local governments from creating “right-to-work zones.”

Employment Discrimination Expansion | Currently in effect are amendments to the Illinois Human Rights Act (IHRA), which allow employees more time to file charges of discrimination and to opt out of the investigation process. Employees now have up to 300 days to file a charge of discrimination with the Illinois Department of Human Rights (IDHR) or the Chicago Commission on Human Rights (CCHR), as opposed to 180 day as before. In addition, employees are now allowed to opt-out of the IDHR’s investigatory process and file an immediate lawsuit in state court. Effective July 1, 2020, the IHRA will cover all employers in Illinois. Previously, the IHRA covered only those employers with 15+ employees. Finally, recent changes in the law also require employers to include in their employee handbooks an explicit notice informing employees of their right to be free from sexual harassment in the workplace. This notice must also provide the contact information for the Illinois Department of Human Rights.

Equal Pay Protections | This past year ushered in two new safeguards for wage parity. First, Illinois passed legislation that amends the Illinois Equal Pay Act (IEPA) to cover pay discrimination between African-Americans and non-African-Americans. Previously, the IEPA was limited to ensuring equal pay between men and women.

More recently, Illinois passed a separate law that prohibits employers from screening job applicants based on their salary histories. In addition to making it unlawful for employers to seek salary history information from applicants, the new law protects employees’ rights to discuss wages and benefits with others. As a result, Illinois employers are expressly prohibited from requiring employees to sign a contract or waiver barring them from discussing compensation with other employees. Illinois’ salary history ban, set to go into effect on September 29, 2019, is not a complete prohibition on salary discussions during the recruitment and application phases. The law carves out certain information employers can still provide and discuss with applicants. First, employers are permitted to provide information about the wages, benefits, compensation or salary offered in relation to a position. Second, they can discuss with an applicant his or her expectations with respect to wage or salary, benefits and other compensation. An employer does not violate the law if an applicant voluntarily discloses his or her current or prior salary history, so long as the employer does not consider that information when making employment or compensation decisions.

Expense Reimbursements | The Illinois Wage Payment and Collection Act (IWPCA) now expressly requires employers to reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” The law allows employers to establish written expense reimbursement policies specifying requirements or guidelines for such expenses. Employers are not obligated to reimburse employees for expenses that fail to comply with any established requirements or guidelines. This means that an employer with a written expense reimbursement policy can reimburse for less than 100 percent of the actual costs, provided that the amount stated in the policy is not zero and is not considered “de minimis.”  These legal changes require employers to carefully consider how they treat expenses employees incur at or away from the workplace, including business expenses of telecommuting employees.

Healthcare Worker Background Check Law Amendments | Employers in the health care industry will want to take note of the recent changes to the Illinois Health Care Worker Background Check Act, 225 ILCS 46/1 et seq. The Act prohibits health care or long-term care facilities from employing individuals in direct care positions if they have a disqualifying conviction, absent a waiver from the Department of Public Health. The recent amendments are designed to streamline the hiring process and give ex-offenders better opportunities to gain employment in the health care industry. Before, background checks were not conducted until after a conditional offer of employment had been made. Employers could revoke the offer or conditional employment if the background check revealed a disqualifying conviction, unless the applicant received a waiver. Changes to the law now allow “workforce intermediaries” (i.e., organizations providing job training and employment services) and organizations providing pro bono legal services to initiate a fingerprint-based criminal history background check and apply for a waiver on behalf of the applicant even before a conditional offer of employment. Employers may still revoke an offer of employment or terminate the conditional employment of an applicant or employee who is granted a waiver.

Illinois Military Members’ Consolidated Protections | In 2019, the Illinois General Assembly streamlined the various job-related protections afforded to Illinois service members by consolidating those protections into the Illinois Service Member Employment and Reemployment Rights Act (ISERRA). While ISERRA mostly mimics the protections in the federal Uniformed Services Employment and Reemployment Rights Act of 1994, it provides several additional protections, including: (i) an expanded definition of “military service”; (ii) special treatment and procedures for performance reviews; (iii) additional methods of enforcement and damages for a potential plaintiff; and (iv) the creation of an ISERRA Advocate, who would assist service members and employers with questions about service members’ protections under the statute.

Minimum Wage Changes | July 1, 2019 marked the final phase-in of the Chicago minimum wage increases (now $13.00 per hour). For all future years, the local minimum wage will be indexed to the Consumer Price Index (CPI). Although the state minimum wage is currently $8.25 per hour, recent legislation signed by Governor Pritzker changes that. Beginning January 1, 2020, the state minimum wage will rise to $9.25 per hour. Beginning July 1, 2020, it will rise again to $10.00 per hour. For each subsequent calendar year, the state minimum wage will increase by $1.00 increments until it tops out at $15.00 per hour in 2025.

Paid Nursing Breaks | Employers must provide reasonable break time for employees who need to express breast milk for up to one year after a child’s birth. Previously, employers were not required to pay employees for additional time to express breast milk beyond their regularly-scheduled paid breaks. Employers must now compensate employees who require additional break time for this purpose, unless doing so would create an undue hardship.

Prevailing Wage Act | Other key changes in the labor field include recent amendments to the Illinois Prevailing Wage Act. The Prevailing Wage Act governs the wages of laborers, mechanics and other workers employed in any public works by a public body, or under any contract for public works. Previously, each public body was responsible for ascertaining the prevailing wage rate in the locality where the work was performed. The amendments now require the Illinois Department of Labor (IDOL) to ascertain the prevailing wage rate for each county in Illinois, and to publish those rates on its official website by July 15 of each year.

Additionally, IDOL will be rolling out an electronic database for collecting and maintaining certified payrolls. This project will be completed by April 1, 2020, after which contractors will be required to submit certified payrolls directly to the IDOL, rather than the public body in charge of the project.

The IDOL is also now charged with studying and reporting on levels of female and minority participation on public works in Illinois. By December 31, 2020, the IDOL will publish recommendations to increase female and minority participation on public works by county. Federal contractors will recall that federal law, including Executive Order 11246, already requires them to take affirmative steps to increase female and minority participation.

Workplace Transparency Act | On August 9, 2019, Governor J.B. Pritzker signed into law the Workplace Transparency Act (WTA), which will take effect on January 1, 2020. The WTA sets forth several new requirements and limitations on Illinois employers with respect to harassment and discrimination. Under the WTA, all employers in Illinois – regardless of size – must provide annual sexual harassment prevention training and must annually report to the IDHR any adverse judgment or administrative ruling involving harassment or discrimination  within the preceding year. The WTA also restricts the use of agreements that are presented as a condition of employment and have the “purpose or effect” of preventing an employee from disclosing unlawful employment practices. In addition, the WTA extends protections to independent contractors. That means Illinois employers can be held liable for harassing conduct that substantially interferes with the work of an independent contractor or creates a hostile work environment adversely affecting a contractor. Additionally, the WTA amends the Illinois Victims’ Economic Security and Safety Act (VESSA) to include sexual harassment among the qualifying reasons for taking a protected leave of absence. Finally, the WTA creates the Sexual Harassment Victim Representation Act, which affects employee representation during labor proceedings involving sexual harassment claims. Where a victim has accused a perpetrator within the same union of sexual harassment, the victim is entitled to have a different union representative from the accused perpetrator.

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