United States: 2017 Illinois Employment Law Update

The following is a summary of some important new and recent state and local laws impacting Illinois employers. Employers should take note of these developments to ensure that their policies and procedures are in compliance. 

STATE LAWS

Illinois "Religious Garb" Law

Effective August 11, 2017, the Illinois Human Rights Act ("IHRA") was amended to clarify protections for sincerely held religious beliefs. 

The amendment provides that an employer cannot impose any requirement that would cause an employee to "violate or forgo a sincerely held practice of his or her religion including, but not limited to, the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion." The law specifically provides that an employer is not prohibited from enacting a dress code or grooming policy that may include restrictions on attire, clothing, or facial hair to maintain workplace safety or food sanitation. Employers still may prohibit attire, clothing, and facial hair if an undue hardship to the employer's business would result.

Employers should review dress code and uniform policies to ensure compliance with the IHRA and also ensure that supervisors are aware of the religious accommodation implications if an employee requests or objects to uniform, dress code, or grooming requirement.

Social Media Protections

The Illinois' Right to Privacy in the Workplace Act ("IRPWA") was amended effective January 1, 2017 to expand its protections to prevent employers from seeking access to "personal online accounts" of employees. The IRPWA previously only prevented employers from seeking access to certain "social networking websites" like Facebook. The definition was broadened to include all online accounts used by a person primarily for their personal purposes. The IRPWA does not prohibit activity with respect to "business" or "professional" online accounts or prohibit employers from inquiring about personal online accounts in certain instances, including investigating certain alleged violations of law or ensuring legal compliance.

Illinois Freedom to Work Act

The Illinois Freedom To Work Act ("IFTWA") went into effect on January 1, 2017. The IFTWA declares all covenants not to compete entered into between an employer and a "low-wage employee" "illegal and void." The IFTWA applies to agreements entered on or after January 1, 2017. For purposes of the IFTWA, a covenant not to compete includes any agreement that restricts working for another employer for a specific period of time, restricts work in a specific geographic area, or restricts engaging in similar work. A "low-wage employee" is one who earns less than $13/hour (or less than the applicable federal, state, or local minimum wage, if that wage is greater).

The law came about after a lawsuit was filed by the Illinois Attorney General against a fast food company over its alleged practice of forcing restaurant workers to sign non-competes. The legislature determined that these types of agreements served little purpose because the restrictions had no reasonable connection to a company's protectable interests and only kept employees from looking for better paying employment elsewhere. 

More Weed in Illinois?

The impact of marijuana on the workplace is a continuing challenge for employers as more states legalize marijuana for medicinal or recreational use. In 2013, Illinois permitted the use of medical marijuana under the Compassionate Use of Medical Cannabis Pilot Program Act, which allows individuals who are suffering from certain debilitating medical conditions to use prescribed medical marijuana to ease symptoms. In 2015, Illinois got its first medical marijuana dispensary, and in 2016, it decriminalized possession of small amounts of marijuana. On December 13, 2017, the Cook County Board of Commissioners unanimously voted to put an advisory recreational marijuana referendum on Cook County's March 20, 2018, primary ballot. The ballot initiative will ask Cook County voters if they support the legalization of recreational marijuana for anyone 21 years of age or older. If passed, the measure will not be legally binding, but it would be another step in what appears to be a push to legalize marijuana in Illinois.

Disclosure of Genetic Information

The Illinois Genetic Information Privacy Act ("Act") has been amended effective January 1, 2018, to prohibit an employer from penalizing an employee who does not disclose his or her genetic information or elects not to participate in an employer program requiring the disclosure of the employee's genetic information.

In general, the Act provides that an employer shall not use genetic information or genetic testing in furtherance of a workplace wellness program benefiting employees unless: (1) health or genetic services are offered by the employer; (2) the employee provides written authorization; (3) only the employee (or family member if the family member, is receiving genetic services) and the licensed healthcare professional or licensed genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services; and (4) any individually identifiable information is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees.

Expanded VESSA Leave

The Illinois Victims' Economic Security and Safety Act ("VESSA") was amended effective January 1, 2017, to provide that all employers, regardless of size, must offer Illinois employees unpaid leave if they or a member of their family or household is the victim of domestic abuse. Previously, only employers with 15 or more employees were covered. Employers with 50 or more employers must offer up to 12 weeks of unpaid leave; employers with 15-49 employees must offer up to eight weeks of unpaid leave; and employers with less than 15 employees must offer up to four weeks of unpaid leave.

Illinois Biometric Privacy Act

Illinois has what many consider the most stringent law on the use of biometrics in the United States, the Biometric Information Privacy Act ("BIPA"). The BIPA was enacted in 2008 and sets forth a comprehensive list of rules and notice requirements for companies that collect biometric data of Illinois employees. Although the law has been on the books for nearly a decade, the use of biometric data in employment is only now becoming commonplace.

The law defines "biometric identifier" as a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. Any private entity that possesses biometric identifiers or information is required to develop a written policy with specific requirements and comply with disclosure, storage, and release requirements.

Illinois is currently the only state with a private right of action for violation of a biometric privacy act. The statute of limitations is ten years, and significant liquidated damages of $1,000 for each negligent violation and $5,000 for each intentional violation are available to a prevailing party. Case law interpreting the BIPA remains sparse. Due to the dearth of case law, the plaintiff's bar has advocated that "each violation" could be liberally interpreted,i.e., each individual punch of a time clock using a fingerprint. Since September 2017, over 30 class actions asserting BIPA violations for the collection, use, or storage of biometric data have been filed in Illinois.

Many companies using biometric data are unaware of the BIPA's requirements and should immediately determine if action is necessary to come into compliance with the BIPA.

Illinois Pay History Law – VETOED!

On August 25, 2017, Governor Bruce Rauner vetoed HB 2462. The bill would have amended the Illinois Equal Pay Act of 2003 related to applicant salary histories to prohibit employers from: (1) screening job applicants based on their wage or salary history; (2) requiring that an applicant's prior wages satisfy minimum or maximum criteria; (3) requesting or requiring, as a condition of being interviewed or continuing to be considered for an offer of employment, that an applicant disclose prior wages or salary; or (4) requiring an employee to sign a contract or waiver that would prohibit the employee from disclosing or discussing information about the employee's wages.

The Illinois House voted to override the vetoed on October 25, 2017, but, on November 9, 2017, the Illinois Senate voted against overriding the veto. 

Additional legislation is anticipated, which may well be supported by the Governor. In his veto, Governor Rauner stated, "The gender wage gap must be eliminated, and I strongly support wage equality. Massachusetts already has established a best-in-the-country approach to the issue of employers inquiring about salary history. Illinois should model its legal regime on Massachusetts' model."

Leave as an Accommodation in the Seventh Circuit

The Seventh Circuit reached one of its most significant decisions under the Americans with Disabilities Act ("ADA") in Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 U.S. App. LEXIS 18197 (7th Cir. Sept. 20, 2017). The Court held that an employee who needs a long-term medical leave cannot work and, thus, is not a qualified individual under the ADA.

Severson had back issues that resulted in a significant amount of time off work. After exhausting FMLA, Severson asked for at least two more months of leave as an accommodation to recover from surgery. The employer terminated his employment. Severson fully recovered in about three months and sued under the ADA asserting, among other claims, that the employer should have provided additional leave beyond FMLA as a reasonable accommodation under the ADA. The District Court granted summary judgment in favor of the employer, and Severson appealed.

Significantly, the EEOC filed an amicus brief and participated in oral argument. The EEOC has long taken the position that extended leave is per se a reasonable accommodation. Here, the EEOC argued the leave was for a definite period, would have allowed the employee to return to work, and the inquiry should focus on the employee's ability to perform the essential functions of the job at the end of the requested leave, not at the time the termination decision was made. It took the position that the length of leave does not matter.

The Seventh Circuit disagreed, holding that the ADA is an anti-discrimination statute, not a "leave entitlement" statute. It noted that the ADA is "concrete" in stating that a reasonable accommodation enables an employee to perform the essential functions of the job, and a leave of absence excuses the employee from working. It does not help them do the functions of the job. The Court criticized the EEOC's position that the length of leave is irrelevant, stating, "If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute – in effect, an open-ended extension of the FMLA. That's an untenable interpretation of the term 'reasonable accommodation.'" The Court left open the possibility that a short leave or intermittent time off, i.e., a couple days or weeks, may be appropriate and analogous to a part-time or modified work schedule.

LOCAL ORDINANCES

Hands Off Pants On in 2018

The city of Chicago has passed what is known as the "Hands Off Pants On" Ordinance. The Ordinance is designed to better protect hotel workers against sexual harassment and assault by guests. Effective January 7, 2018, hotels in the city of Chicago must develop, maintain, and comply with a written anti-sexual harassment policy that contains specific provisions including: (1) encouraging employees to immediately report alleged sexual harassment or assault by guests; (2) describing the procedures the employee and hotel will follow to respond to complaints; (3) instructing employees to stop working and immediately leave the area of danger; (4) offering temporary work assignments for the duration of the stay of the guest against whom allegations are made; (5) providing the employee with paid time off to file a police report or testify; (6) not retaliating for exercising any right afforded by the Ordinance; and (7) informing the employee that Title VII of the Civil Rights Act of 1964, as amended, the Illinois Human Rights Act, and the Chicago Human Rights Ordinance provide additional protections against sexual harassment.

By July 1, 2018, hotels in the city of Chicago must also provide employees who work alone in guest rooms or rest rooms with a "portable emergency contact device," i.e., a panic button or other notification device, that allows the employee to summon hotel security or management in the event the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault, or other emergency is occurring in the presence of the employee. Hotels are prohibited from retaliating against employees for reasonably using the emergency contact device or otherwise disclosing, reporting, or testifying about any violation of the Hands Off Pants On Ordinance. Complaints can be filed with the Chicago Commission on Human Relations.

Chicago Fair Workweek Ordinance

Following in the footsteps of New York, San Francisco, and Seattle, in June 2017, the Chicago City Council introduced the Chicago Fair Workweek Ordinance in an attempt to regulate the scheduling of non-exempt workers in the city of Chicago and create predictability in scheduling. If passed, the law would go into effect on July 1, 2018, and introduce onerous requirements. Although the greatest impact will likely be on employees in the retail and hospitality industries, the ordinance is designed to cover any employer with a physical presence in Chicago if they are required to have a Chicago business license. It also covers any employee who works at least two hours in the City, specifically including those who work in residential locations.

In addition to maintaining scheduling records for five years, employers will be required to:

  • Give two weeks' advance notice of work schedules;
  • Compensate employees for changes in their schedule, for example, provide one extra hour of "predictability pay" if there are changes in scheduled times with less than 14 days' notice, regardless of whether there are changes in the total number of hours the employee is scheduled to work;
  • Employees will have the right to decline previously unscheduled hours if they are added to the schedule without at least 14 days' notice;
  • If an employer eliminates four hours or less from an employee's schedule, the employer must still pay the employee for those lost hours. When four or more hours are eliminated, the employee must still be paid for at least four hours;
  • Provide a "good faith" estimate of hours to be worked and estimated schedule prior to hiring an employee.

Penalties for violating the proposed ordinance could include fines of $500 - $1,000 and would be enforced by the Chicago Department of Business Affairs and Consumer Protection.

STATE LAWS VS. LOCAL ORDINANCES

Illinois vs. Cook County vs. City of Chicago Minimum Wage

Minimum wage in Illinois is $8.25/hour and will remain so for 2018. In August, Governor Bruce Rauner vetoed a bill that would have increased it to $9.00/hour in 2018 with increases to $15/hour by 2022. However, the Cook County minimum wage ordinance requires that non-tipped employees working in Cook County earn $10/hour, unless they work in a municipality that has opted out of the Ordinance. Over 50 municipalities have opted out of the Cook County minimum wage ordinance. As if that weren't enough, the minimum wage for non-exempt employees working in the city of Chicago is $11/hour. It will increase to $12/hour effective July 1, 2018.

Paid Sick Leave in Illinois, Cook County, and the City of Chicago

Paid sick leave laws continue as a trend nationally. Prior to 2014, there were only four paid sick leave laws nationwide. Today, there are more than 30 leave laws that vary by location. Illinois illustrates the challenge employers are facing. The Illinois Employee Sick Leave Act became effective January 1, 2017. It does not require employers to provide paid sick leave, but it does require employers who have paid sick leave to permit employees to use it for absences due not only to their own illness, but due to an illness, injury, or medical appointment for the employee's child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent, on the same terms as an employee may use the time for his/her own illness/injury. Within weeks of the effective date, the Act was amended to expand the list of relatives to include stepchildren and domestic partners.

The Cook County Earned Sick Leave Ordinance and the Chicago Paid Sick Leave Ordinance became effective July 1, 2017. Significantly, the Cook County law permits municipalities to opt out, which has resulted in a patchwork of requirements throughout Cook County.

Both the City and County laws cover employees who perform at least two hours of work for a covered employer while physically present within the boundaries of the jurisdiction in any two-week period and who work at least 80 hours for a covered employer in a 120-day period. Employees may use the time in increments of four hours for illness, injury, or medical care (including preventative care) or that of covered family members including: child, legal guardian/ward, spouse, domestic partner, sibling, grandparent, grandchild, or any other person related by blood or whose close association with the employee is the equivalent of a family relationship.

Employers are required (1) to post a notice advising covered employees of their right to sick leave; and (2) include with the first paycheck a notice that advises covered employees of their rights under the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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