Breaks for Expressing Breastmilk Must Be Paid
Effective August 21, 2018, Illinois amended its Nursing Mothers in the Workplace Act (820 ILCS 260/10). The prior law, which went into effect in 2001, required employers who have more than five employees to provide unpaid break time to an employee who needed to express breast milk for her nursing infant child. The amendment now requires employers to pay for "reasonable" break time spent expressing breast milk, no matter how long it takes or how often it needs to occur. A limit of up to one year after the birth has now replaced a previously undefined period.
Further, the prior version required the break time to run, when possible, concurrently with any break time already provided to the employee. The new version states that the break time "may" run concurrently but it no longer has to. Instead, an employer is required to provide "reasonable" break time as needed by the employee unless to do so would create an "undue hardship" as defined under the Illinois Human Rights Act (which is a fairly high burden for an employer to meet). The "undue hardship" standard is higher than the prior version, which allowed employers to refuse or restrict lactation breaks if to do so would "unduly disrupt the employer's operations."
The bottom line is that Illinois employers must immediately review their policies on expressing breast milk and further ensure that employees' pay is no longer being deducted for those breaks.
Employee Expense Reimbursement Now Mandated
Effective on January 1, 2019, Illinois will join eight other states in imposing a statutory requirement for employers to reimburse employees for certain expenses incurred. The Illinois Legislature has added a section to the Illinois Wage Payment and Collection Act and will now require employers to reimburse employees for all "necessary expenditures" incurred by employees within the scope of employment and "directly related to services performed" by the employers. 820 ILCS 115/9.5. The term "necessary expenditures" is defined as "all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer." The employer will not be responsible for any losses due to the employee's own negligence, due to normal wear, or due to theft (unless the theft was caused by the employer's negligence).
The new law requires employees to submit "appropriate" supporting documentation for any necessary expenditure within 30 calendar days after incurring the expense. The law allows employers to provide more than 30 days if they have a written policy. Absent supporting documentation—even if supporting documentation does not exist, is missing, or is lost--the employee can submit a signed statement in lieu of a receipt. The law does not address any specifics with respect to what a "statement" in lieu of a receipt must contain, whether an employer without a policy must accept a reimbursement request after 30 days, and/or whether an employer can impose a shorter period for submitting documentation. It remains to be seen how the Illinois Department of Labor and/or Illinois courts will interpret the new law.
The amendment does not apply to an employer that has a written expense reimbursement policy if an employee seeking reimbursement does not comply with that policy, unless the employer also fails to comply with the policy. Further, the new law states that an employer will not be liable to an employee if the employer did not authorize or require the expenditure. Finally, if the written expense reimbursement policy establishes specifications and guidelines for necessary expenditures, the employer will not be liable for the portion of the expenditure amount that exceeds the specifications or guidelines of the policy as long as the employer does not institute a policy that provides for no reimbursement or a de minimis reimbursement.
As noted above, several of the amendment's provisions are subject to interpretation, and even if the Illinois Department of Labor issues regulations, courts are likely to face questions about what expenses are considered "necessary," and whether an employer has "required" a particular expense (or type of expense). For example, employers commonly require, expect, or allow employees to use personal cellular phones or laptop computers to carry out work duties. Will an employer have to pay for the phone, or for the data plan, or for a portion of the data plan? What about use of a personal laptop or home internet service used to remotely connect to a company's servers when the employee chooses to work from home, or when an employee is traveling for work? Under the new amendment, which allows employers to have a written policy that establishes the specifications for the "necessary expenditures" as long as the policy does not provide for "no reimbursement or de minimis reimbursement," it would seem that an employer who requires or expects an employee to use his or her own equipment for work must provide at least some reimbursement, but may specify a flat rate of reimbursement, or may limit reimbursement depending on the extent to which the employee's equipment is expected to be used. Notably, courts in California—which has a law with substantially identical language to that in Illinois' new law—have found that employers are required to reimburse employees for expenses such as data plans and internet service, even if the cost to the employee is minimal (such as where the employee has an unlimited data plan).
The bottom line for Illinois employers is that they should establish or update expense reimbursement policies before the January 1, 2019, effective date. Policies should at least include:
- The types of expenses that are reimbursable;
- The amount or proportion of the expense eligible for reimbursement;
- The type of documentary evidence (receipts, invoices, etc.) required for reimbursement; and
- The time period in which employees have to submit documents.
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