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Illinois Legislative Changes

SB1480 Amends Human Rights Act, Equal Pay Act and Business Corporation Act
  • Signed into law on March 23, 2021
Amendment of Human Rights Act
  • Creates new employment offense, discrimination on the basis of criminal conviction, 775 ILCS § 5/2-103.1
  • Criminal conviction includes felony, misdemeanor or other criminal offense, including sentences of imprisonment, fine, probation, and/or parole and including sentences imposed by military authorities 775 ILCS § 5/1-103(G-5)
  • Criminal conviction includes felony, misdemeanor or other criminal offense, including sentences of imprisonment, fine, probation, and/or parole and including sentences imposed by military authorities 775 ILCS § 5/1-103(G-5)
  • Unless otherwise authorized by law, employers may not make any employment decisions (hiring, promotion, compensation, rehiring, training, discharge, discipline, tenure, or terms and conditions of employment) based on criminal convictions, unless:
    • “there is a substantial relationship between one or more of the criminal offenses and the employment sought or held” OR
    • “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public”
    • “Unreasonable risk” is not defined – but the employer has to prove it
    • “Substantial relationship” means that the job creates an opportunity for the same or similar offense to occur, and whether the circumstances for which the person was convicted are likely to happen again
  • In determining whether there is a substantial relationship between the offense and the job, the following six factors have to be considered by the employer:
    1. the length of time since the conviction
    2. the number of convictions on the record
    3. the nature and severity of the conviction and its relationship to safety and security of others
    4. the facts and circumstances involved
    5. the age of the employee at the time of the conviction
    6. evidence of rehabilitation efforts
  • If the employer preliminarily decides to take a negative employment action, it must provide written notice to the employee, which must contain:
    1. The specific conviction on which the action is based
    2. A copy of the conviction history report if any
    3. An explanation of the employee’s right to challenge the decision before it becomes final, including challenging the conviction record and providing rehabilitation information, which may be submitted within 2 days
  • The employer must consider any information offered by the employee
  • If the employer decides to make the decision final, it must provide written notice to the employee, which must contain:
    1. The specific conviction on which the action is based
    2. The employer’s reasoning
    3. Any available internal appeals, and
    4. The employee’s right to file a charge with the Illinois Department of Human Rights
  • These changes go into effect immediately as of March 23, 2021
Amendment of Business Corporation Act
  • If the employer must file an EEO-1 report with the EEOC (100 or more employees, or 50 more employees and federal contractor), the employer must file the same employment data with the Illinois Secretary of State with the annual report 805 ILCS § 5/14.05(m)
  • The Secretary of State will publish the employment data on its website
  • These new reporting requirements begin with the first annual report filed after January 1, 2023
Amendment of Equal Pay Act of 2003
  • Employers with more than 100 employees must obtain an “equal pay registration certificate” and certify compliance with federal and state discrimination and equal pay laws 820 ILCS § 112/11
  • This requirement applies to private employers, not to governmental agencies
  • To obtain the certificate, the employer must provide EEO-1 data to the Illinois Department of Labor for each county in which the business has a facility or employees, and a list of all employees during the past calendar year separated by gender, race and ethnicity, plus total wages paid to each employee during the prior calendar year
  • Wages are defined the same as in Illinois Wage Payment and Collection Act and include wages, salaries, earned commissions, and other forms of compensation
  • Employers must also submit to the IDOL a statement signed by a corporate officer, legal counsel, or other authorized agent of the business that includes the following:
    1. That the business is in compliance with Title VII, Equal Pay Act of 1963, Illinois Human Rights Act, Equal Wage Act, and Equal Pay Act of 2003
    2. That the average compensation for female and minority employees is not consistently below the average compensation, as determined by IDOL rules, for male and non-minority employees within each of the major job categories in the EEO-1 report for which an employee is expected to perform work under the contract, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job and other mitigating factors
    3. That the employer does not restrict employees of one sex to certain job classification and makes retention and promotion decisions without regard to sex
    4. That the business corrects wage and benefit disparities when identified
    5. How often the business evaluates wages and benefits to ensure compliance with these statutes.
    6. The statement must also indicate whether the business uses a market pricing approach, or State prevailing wage or union contract requirements, or a performance pay system, or an internal analysis, or an alternative approach (which must be explained) to determine what compensation and benefits to provide to employees.
  • The issuance of an equal pay certificate by IDOL is not a defense to an Equal Pay Act violation nor is it a basis to mitigate damages to an aggrieved employee
  • Employers who do not obtain a certificate or whose certificate is suspended or revoked after IDOL investigation are subject to a mandatory civil penalty equal to 1% of gross profits
  • IDOL will conduct audits of businesses to ensure compliance with these new requirements
  • IDOL may revoke certificates that it has issued if it determines that the business has failed to make good faith efforts to comply with these Acts or has multiple violations; the employer will have a right to an administrative hearing regarding the revocation
  • Existing corporations must obtain certificates within three years, by March 23, 2024
  • New corporations must obtain certificates within three years after commencing operations
  • Recertification will be required every two years
  • Businesses are prohibited from retaliating against employees for disclosing information to company supervisors or to public bodies believed violations of this law, for providing information to public bodies at investigations, inquiries or hearing, and/or participating in enforcement proceedings, and the employee’s remedies include reinstatement, two times the amount of backpay, interest, and attorney’s fees