THE ILLINOIS VICTIMS’ ECONOMIC SECURITY AND SAFETY ACT
The Illinois Victims' Economic Security and Safety Act ("VESSA") was signed into law by Governor Blagojevich on August 25, 2003 and takes effect immediately. It requires that public and private employers in Illinois with 50 or more employees provide up to 12 weeks of unpaid leave in a 12-month period to workers in Illinois who become victims of sexual or domestic violence, or who have a family or household member victimized by such violence.
Covered Employees Entitled to 12 Weeks of Leave.
Under the Act, covered employees can take leave to seek medical attention and psychiatric counseling, obtain assistance from a victims' service agency, seek legal counsel, and participate in civil and criminal legal proceedings, not only for themselves, but also to assist a family or household member in doing so. Before granting leave, an employer may require certification in the form of (i) the employee's own sworn statement and (ii) a police or court record, or documentation from a worker at a victim services organization, attorney, clergy member or health care professional who was asked to provide assistance. Employees are supposed to provide 48 hours advance notice before taking leave, unless it is not "practicable" to do so. But when an unscheduled absence occurs, the employer may not take any action against the employee if he or she provides the certification required by the Act "within a reasonable period" (which is not defined).
Domestic Partners are Covered.
VESSA contains many other significant provisions. For example, it broadly defines a "household member" as a "person jointly residing in the same household." This includes same-sex domestic partners. It is the first Illinois state law to grant employment rights in the private sector based upon such relationships. The new law also adds a new protected classification to the already long list of persons protected by employment laws. It precludes employer discrimination with respect to hiring, promotion, harassment, termination and retaliation based upon an employee's (or family or household member's) status as a victim of domestic violence, dating violence, sexual assault, or stalking.
Employers Must Make Accommodations.
Moreover, VESSA defines discrimination as "not making a reasonable accommodation." This means that an employer may violate the Act by not making an adjustment to a job structure, workplace facility, or work requirement, a transfer, reassignment, or modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, or implementation of a safety procedure, in response to actual or threatened domestic or sexual violence. Now, employers in Illinois will not only have to refrain from discriminating against victims of domestic or sexual violence, they will also have to make affirmative accommodations to protect employees from violence by outsiders.
Discharge Prohibited When Domestic Violence Threatens Workplace.
Another significant provision likely to cause concern is that employers are prohibited from taking any action against an employee because the workplace is disrupted or threatened by a person who is accused by the employee of having committed or threatened to commit domestic or sexual violence against the employee or a family/household member. The fact that domestic abuse often spills over into the workplace, has led many employers to incorporate domestic violence into their employment policies and training designed to prevent violence in the workplace. However, the new act significantly limits an employer's ability to take action against employees whose outside problems cause disruptions and threats at work.
Domestic Violence Leave is Similar to FMLA Leave.
This new Illinois law supplements the federal Family and Medical Leave Act ("FMLA") which requires 12 weeks of unpaid leave during a 12-month period to employees who have a serious medical condition or family member with such a condition. The new Illinois act does not provide additional unpaid leave if it would otherwise qualify as FMLA leave, but it does allow an intermittent or reduced work schedule, the use of paid leave such as vacation time in lieu of unpaid leave, and the right to be restored to the same or equivalent position after the leave. Unlike the FMLA, the Illinois act does not require that covered employers have 50 employees in a 75-mile radius or that employees have worked for the employer for 12 months and 1250 hours in the previous year before becoming eligible for leave.
Covered Employees Can Sue for Damages.
An employee whose rights under the Act are violated must file a complaint with the Illinois Department of Labor within three years after the alleged violation occurred. The employee may recover damages such as lost wages, employee benefits, attorney's fees, and other relief, such as a reinstatement or a promotion, but not compensatory or punitive damages.
THE ILLINIOS WHISTLEBLOWER ACT
The Illinois Whistleblower Act was signed into law on August 18, 2003 and becomes effective January 1, 2004. The Act creates a new civil cause of action for private sector employees in Illinois who are subject to discipline, discrimination and retaliation for whistleblowing, i.e., going to a government or law enforcement agency with information that the employees had reasonable cause to believe was a violation of state or federal law. The new law also prohibits employers from punishing employees who refuse to participate in activities that the employees "reasonably believe" are illegal.
One significant aspect of the Illinois Whistleblower Act is how it broadly defines "employer" and "employee." An "employer" is covered by the Act if it is an individual partnership corporation, association and "any other entity [other than a governmental entity] that has one or more employees in the state." An "employee" protected under this law includes "any individual who is employed on a full-time, part-time, or contractual basis by an employer," which may protect whistleblowers who are not traditional employees, such as leased employees, temps, and independent contractors.
The Act Supplements Prior Whistleblower Protections.
The Illinois Whistleblower Act was enacted, even though Illinois courts have, for some time, recognized a civil cause of action for damages when an employee is discharged for reporting criminal conduct. However, the judicially-created cause of action does not cover all violations of state or federal law (as does the new Act) and applies only to discharges (not demotions, suspensions and other adverse employment actions covered under the Illinois Whistleblower Act). The judicially-created cause of action does allow punitive damages, while the new statute does not. It is unclear whether the new law preempts the judicially-created cause of action in whole or in part.
The Illinois Whistleblower Act follows on the heels of the federal Sarbanes-Oxley Act, which was enacted last year to protect employees who provide information or assist in an investigation regarding conduct that is "reasonably believed" to constitute a violation of federal criminal laws relating to mail fraud, wire fraud, bank or securities fraud or other federal laws relating to fraud against shareholders of publicly held companies. However, the Sarbanes-Oxley Act specifically states that it does not diminish any right or remedies that an employee may have under any other federal or state law, such as the Illinois Whistleblower Act.
Employers Face New Cause of Action.
Employees who are unlawfully disciplined for whistleblowing activities protected by the Act may bring a civil lawsuit in state court against the employer for reinstatement, back pay, compensation for damages, litigation costs, expert witness fees, and reasonable attorney's fees, but not punitive or exemplary damages. In addition to creating a new civil cause of action for Illinois private sector employees, a violation of the Act also can be a Class A misdemeanor. The Act does not apply to governmental employers or where whistleblowing may violate the attorney-client privilege.
ACTION IS NEEDED
Employers in Illinois will be well advised to amend their employment policies and begin training supervisors and employees about these new laws in order to avoid inadvertent violations.
To deal with the Illinois Victims' Economic Security and Safety Act, employers with 50 or more employees will have to amend their leave of absence policies to provide leave to employees victimized by domestic or sexual violence, create forms for employees to provide the required certification, and revise their workplace violence prevention procedures to provide avenues for employees to report threats and request reasonable accommodations. In addition, frontline supervisors, security personnel, and risk managers will have to be brought into the loop in order to comply with this new law. To come to grips with the Illinois Whistleblower Act, all Illinois employers will have to review and revise employment policies, compliance manuals, and codes of ethics to make sure they incorporate the new whistleblower protections. Hotlines and other procedures for employees to report criminal conduct will have to be established. Management will have to be trained on how to recognize whistleblowers and what to do when they report possible wrongdoing.
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