Illinois Legislative Changes

Workplace Transparency Act

• Goes into effect on January 1, 2020.
• States that any employment agreement that has the purpose of preventing an applicant or employee from making truthful statements about alleged unlawful employment practices (i.e., discrimination and harassment) is against public policy, void to the extent it prevents these statements, and severable from an otherwise enforceable contract, unless the agreement is in writing, demonstrates valid and bargained-for consideration from both parties, and acknowledges the right of the applicant or employee to: 1) report any good faith allegation of unlawful employment practices to any appropriate federal, State or local government agency enforcing discrimination laws; 2) report any good faith allegation of criminal conduct to any appropriate federal, State or local official; 3) participate in a proceeding with any appropriate federal, State, or local government agency enforcing discrimination laws; 4) make any truthful statements or disclosures required by law, regulation or legal process; and 5) request or receive confidential legal advice.
• Prohibits arbitration agreements from including harassment and discrimination claims.
• Prohibits confidentiality agreements within settlement agreements or severance agreements that terminate employment, unless: 1) both the employer and employee prefer confidentiality; 2) the employer notifies the employee in writing of the right to get legal advice; 3) there is valid, bargained-for consideration for the confidentiality clause; 4) the agreement does not waive claims that arise after the effective date of the agreement; and 5) the employee receives a 21-day consideration period and a 7-day revocation period.
• Allows employers to require the following persons to maintain confidentiality: 1) persons who receive complaints or otherwise have access to personnel records; 2) employees and third parties requested to provide information in a confidential internal investigation; 3) employees and third parties who receive attorney work product and attorney client privileged materials; 4) any individual subject to a recognized legal or evidentiary privilege; and 5) third parties hired to investigate complaints of unlawful employment practices.

Cannabis Regulation and Tax Act (CRTA)

• Goes into effect on January 1, 2020.
• Persons aged 21 and over will be able to buy cannabis from licensed vendors.
• Individuals may use and possess cannabis in their own homes and in some cannabis-related business.
• Cannabis use and possession will be prohibited in schools; residential daycare facilities; on school buses; by/near individuals younger than 21; and by/near on duty police officers, school bus drivers, correctional officers (unless marijuana is consumed for medical purposes).  Possession (but not use) is allowed in private vehicles if it is stored in a reasonably inaccessible place while vehicles are being operated.
• See Dazed and Confused: Employer Concerns Due to Passage of Illinois’ Recreational Marijuana Bill for a discussion of employer implications as a result of the CRTA.

Illinois Minimum Wage Law Amendments

*Under 18, working fewer than 650 hours in calendar year.

• Some employers with 50 or fewer FT employees may qualify for tax credit equal to 25% of the increased cost of wages paid in 2020; 21% of increased cost of wages in 2021; 17% of increased wage costs in 2022; 13% in 2023; 9% in 2024; and 5% in 2025.
• Total average wages for employees earning less than $55,000 must increase from the prior year.
• Credit is available for wages paid to employees who work 90 or more consecutive days during the year.
• Successful employees are able to recover THREE TIMES the amount of unpaid minimum wages and overtime.
• Statutory interest penalties on unpaid wages increased from 2% per month to 5% per month.
• IDOL wage theft enforcement fund penalty of $1500 for willful, reckless, and repeat violations.
• $100 per employee fine for failure to keep accurate records.

Illinois Equal Pay Act Amendments

• Goes into effect on September 29, 2019.
• Employers and employment agencies are prohibited from requesting or requiring applicants to disclose compensation history.
• Employers may ask applicants their compensation expectations.
• Employers may not prohibit employees from discussing compensation with other employees.
• Employers must pay equal pay to women and men and to African-Americans for the same or substantially similar work on a job that requires “substantially similar” skill, effort and responsibility performed under similar working conditions.
• Replaces the “equal” work standard and expands the scope of comparators.
• Relief is expanded to include actual damages, “special” damages of $10,000, injunctive relief, punitive and compensatory damages and attorney’s fees.
• To justify paying men and women differently and same for African-American employees, the employer must be prepared to point to factors that are not correlated to historic/social differences in compensation, and that are job related and consistent with business necessity.

Workers Compensation Public Act 101-0006

• Amends Workers Compensation Act and Workers’ Occupational Disease Act to eliminate the exclusive remedy provision for latent diseases and injuries that manifest 25 years or more after the last exposure.
• Impact on cases filed before May 17, 2019 is uncertain.
• Act may face constitutional challenges.

Illinois Human Rights Act Amendments

• Expands unlawful discrimination and harassment to include “actual or perceived” race, color, religion, national origin, ancestry, age, sex, marital status, order of protection, disability, marital status, sexual orientation, pregnancy, or unfavorable discharge from military.
• Expands protections to include contractors, not just employees.
• Broadens the definition of “work environment” in the context of discrimination/harassment claims to include spaces beyond the physical location of the employee’s work space.
• Requires employer responsibility for sexual harassment of nonemployees by the employer’s nonmanagerial and nonsupervisory employees, but only if the employer becomes aware of the conduct and fails to take reasonable corrective measures. (This is consistent with federal law.)  But harassment by managers and supervisors remains STRICT LIABILITY under the IHRA.
• Requires employers and parties to public contracts in Illinois to – beginning July 1, 2020 and every July 1 thereafter – to provide the following information to the Illinois Department of Human Rights: 1) the number of settlements entered into that year which included allegations of harassment or discrimination; 2) the number of judgments/rulings against the employer during the year; 3) if equitable relief was entered against the employer during the year; 4) the number and breakdown of settlements involving claims regarding protected characteristics; and 5) the number of adverse judgments/rulings against the employer concerning claims regarding protective characteristics.  This information reported to the IDHR may be used for investigations related to pattern and practice allegations.  If employers and parties to public contracts fail to comply with these reporting requirements, they could be faced with a $5,000 fine per offense.
• Mandates that employers provide annual sexual harassment training that includes certain minimum requirements. IDHR will have a model training program for use by employers, which employers are required to use, unless the employer develops its own training program that is more expansive than the IDHR’s minimum requirements.  Employers may be fined $5,000 for failing to comply with this mandate.
• Restaurants and bars must provide a sexual harassment policy to all employees within the first week of any employee’s employment.
• On August 20, 2019, Governor Pritzker signed House Bill 252, which lowers the coverage threshold for “employer” under the Human Rights Act to include any entity that employs one or more persons. The prior threshold was 15 or more employees.
• The Bill also exempts places of worship from employer status with respect to employment of persons of a particular religion to carry out work of the place.

Proposed BCA Amendment

• House Bill 3994 would require corporations to report to the Illinois Secretary of State whether the corporation is publicly traded, domestic or foreign and whether its principal office is in Illinois, the qualifications, skills or experience that the corporation considers for its Board and officers, whether each Board member self-identifies by racial group and board racial demographics. The information is compiled into a public report and aggregate data is reported by the University of Illinois.
• The Bill passed and was sent to the Governor on June 28, 2019.

Artificial Intelligence Video Interview Act

• Prohibits employers from using “artificial intelligence” to analyze videotaped job interviews and to consider the applicant’s fitness for the position unless: 1) the employer notifies the applicant in advance; 2) the employer explains how the AI works; and 3) the applicant consents.
• Prohibits employers from disclosing or sharing video interviews, except with persons whose expertise or technology is necessary to evaluate an applicant’s fitness for a position.
• Requires employers to delete videos and require third parties to delete videos within 30 days after a request by the applicant.
• The Act does not define AI or distinguish between covered uses.

Victims’ Economic Security and Safety Act Amendments

• Requires employers to provide leave to victims or family members of victims of gender violence. “Gender violence” includes violent actions against a person based on his/her gender or perceived gender.  The law also now forbids employers from discriminating against gender violence victims, not just sexual or domestic violence victims.
• Gender violence is defined as a criminal act of violence or aggression, physical invasion of a sexual nature, and/or threats of such act, committed at least in part on the basis of the victim’s actual or perceived sex or gender.

Hotel and Casino Employee Safety Act

• Covered businesses must provide notification devices (“panic buttons”) to employees working in guest rooms, restrooms, and casino floors to be used to summon help if employee believes that criminal activity, sexual harassment or assault is occurring.
• Requires covered employers to develop, maintain and comply with a written anti-sexual harassment policy that includes very specific provisions, also mandated by this Act.

Chicago Fair Workweek Predictive Scheduling Ordinance

• Covered businesses: businesses that globally employ more than 100 employees and are primarily engaged in the building services, health care, hotels, manufacturing, restaurants, retail or warehouse services industries; not-for-profit corporations in such industries if they employ 250 or more employees; restaurants with 30 locations and 250 employees globally; and franchises with four or more Chicago locations.
• Covered employees: salaried employees making $50,000 or less; and hourly employees making no more than $26 per hour.
• Effective July 1, 2020, covered employers must offer covered employees 10 days advance notice of their work schedules. Effective July 1, 2022, covered employers must offer covered employees 14 days advance notice of their schedules.
• Covered employers must give new hires notice of their expected days and hours of work for their first 90 days.
• Covered employees may decline previously unscheduled hours if the employer makes a late schedule change.
• Covered employees may decline a shift with less than a ten hour break from their previous shift. If the covered employee works such a shift, he/she is entitled to 1 ¼ wage rate.
• If a shift is canceled or reduced in hours with less than 24 hours’ notice, the covered employer must pay the covered employee at least 50 percent of his/her regular pay rate for any scheduled hours. This applies to on-call shifts and if the employee is sent home from a shift early.
• Covered employers must offer extra shifts to existing employees qualified to do the work before using temporary workers.
• Employers and Unions may agree in collective bargaining agreements to waive or exclude the provisions of the Act.
• There are several exceptions to compliance with the Act, including a covered employee’s request for a shift change and a reduction of hours for disciplinary reasons.