Category Archives: Illinois Employers

SB 75: NEW Anti-Harassment Law – A Serious Game Changer for Illinois Employers

Contributed by Jeffrey A. Risch and Julie A. Proscia, August 9, 2019

MAJOR CHANGES TO ILLINOIS EMPLOYMENT LAWS:  NEW MANDATORY SEXUAL HARASSMENT TRAINING, REPORTING AND DISCLOSURE REQUIREMENTS, RESTRICTIONS ON EMPLOYMENT AGREEMENTS, & SEVERAL OTHER MANDATES

ATTENTION Illinois employers of ALL sizes… Are you ready?  Today (August 9, 2019), Governor Pritzker signed Senate Bill 75 – the Workplace Transparency Act – into law.  Effective January 1, 2020, major new changes will forever alter how Illinois employers manage harassment and discrimination issues as well as other workplace controversies.

In fact, the changes will require ALL employers to update their training practices, key policies, personnel forms, severance agreements and arbitration agreements.  The changes will also impact how (and IF) employers will voluntarily resolve employment disputes or litigate such disputes not only in Illinois but anywhere in the United States.

MAJOR changes coming to Illinois include:

  • Limits the use of employment policies or other agreements intended to prevent an employee from reporting sexual harassment, such as non-disclosure agreements, arbitration clauses, and non-disparagement clauses for cases involving harassment, discrimination and retaliation. No such agreement can prevent an applicant, employee or former employee from reporting unlawful or criminal conduct to a government agency. Also, a mandatory arbitration provision is void if it’s a compulsory, unilateral condition of employment or continued employment.  Finally, strict confidentiality in any settlement or severance agreement is only valid IF: the provision is expressly preferred by the individual; expressly allows the individual to have the document reviewed by an attorney of their choosing; valid consideration is provided; there is no waiver of claims following the effective date; and it provides 21 days to the individual to consider the agreement and 7 days to revoke signature after execution (regardless of age).
  • Makes harassment and discrimination against bona fide independent contract workers illegal under the IL Human Rights Act.
  • Clarifies that it is illegal to discriminate against an employee if they are perceived to be part of a protected class (i.e. gender, sexual orientation, ethnicity), even if they are not.
  • Expands the Victims Economic Security & Safety Act (VESSA) to allow victims of gender violence to take unpaid leave from work to seek medical help, legal assistance, counseling, safety planning and other assistance.  Therefore, workplace harassment could, in theory, trigger VESSA rights in ways not contemplated before.
  • Prevents a union representative from representing both a victim of sexual harassment and the alleged harasser in a disciplinary proceeding.
  • Requires ALL employers, labor organizations and units of local government to disclose the number of final, non-appealable adverse administrative or judicial decisions of sexual harassment and discrimination against them (entered anywhere in the U.S.) to the Illinois Department of Human Rights beginning July 1, 2020 and each July 1 thereafter.
  • Requires ALL employers, labor organizations and units of local government to disclose the number of private settlements that involve sexual harassment and discrimination claims, entered anywhere in the U.S. in the previous 5 years, to the Illinois Department of Human Rights if requested to do so.
  • Requires ALL employers to annually train their employees on preventing sexual harassment. The Department of Human Rights is required to make a model sexual harassment training program available for employers to provide to their employees. Training shall include:  an explanation of sexual harassment; examples of conduct that constitutes unlawful sexual harassment; a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
  • Creates mandatory anti-harassment and discrimination policy distribution to ALL employees of restaurants and bars (NOTE: “restaurants” and “bars” are broadly defined) within the first week of starting employment, as well as, anti-harassment training. The anti-harassment training that restaurants and bars must conduct differs from that of other sectors and must include sections on conduct, activities, and/or videos related specifically to the restaurant and bar industries; an explanation of manager liability and responsibility under the law; and be available in both English and Spanish.
  • Creates the Hotel and Casino Employee Safety Act which will require ALL hotels and casinos to adopt anti-sexual harassment policies and make safety devices aka panic buttons available to certain employees by July 1, 2020. The anti-sexual harassment policies must have specific language and provisions that include language, amongst other items, that the complaining employee is permitted to cease work and leave the immediate area if he/she perceives danger until hotel or casino personnel or the police arrive to provide assistance, as well as, provisions that give the employee  paid time off  to file a police report or criminal complaint against the offending guest and/or testify as a witness against the offending guest.

SB 75 is a BIG game changer for employers in Illinois and requires a review and revision of employment contracts, arbitration, severance and settlement agreements, employee handbooks and training programs. It is imperative that companies and HR professionals work with their legal team to develop policies, procedures and strategies to ensure compliance.  Also, litigation risk tolerance and one’s general appetite to resolve controversies should be evaluated closely as well in light of the new disclosure and reporting obligations.

Up in Smoke: Recreational Marijuana and its Impact on the Illinois Workplace

Contributed by Noah A. Frank, Michael D. Wong, and Jeffrey A. Risch, May 31, 2019

It appears Illinois will become the 11th state to permit recreational cannabis. Once Governor Pritzker signs the legislation, as promised, beginning January 1, 2020, the Cannabis Regulation and Tax Act (“Act”), will allow adults (21+) in Illinois to possess and consume cannabis. While there is a lot “rolled” into the 600 plus page law (pun intended), there are significant employment pitfalls for employers with regard to enforcing drug free workplaces.

Marijuana and a gavel

The Act expressly permits employers to adopt and enforce “reasonable” and nondiscriminatory zero tolerance and drug free workplace policies, including policies on drug testing, smoking, consumption, storage, and use of cannabis in the workplace or while on-call – which is good for employers.

However, the Act’s language indicates that employers are not allowed to take an adverse action against an applicant or employee for marijuana usage outside the workplace. This is bad for employers, as it makes it much more difficult for employers to identify and address use of marijuana by employees. In particular, the Act amends the Illinois Right to Privacy in the Workplace Act (“Right to Privacy Act”), which prohibits employers from restricting employees from using legal products outside of work. Specifically, the Right to Privacy Act is amended to provide that “lawful products” means products that are legal under state law, indicating that recreational and medical marijuana are legal products that must be treated like alcohol and tobacco. Thus, employers may not discriminate against an employee or applicant who lawfully uses cannabis (recreationally or medically) off-premises during nonworking and non-call hours. 

Much like with the Illinois medical marijuana law, the Act changes the emphasis from whether an employee “used” marijuana while employed, to whether the employee was “impaired” or “under the influence” of marijuana while at work or working. As a result, drug testing without any other evidence of the employee being impaired at work or while working will open the door to legal challenges. Specifically, refusing to hire, disciplining, terminating, refusing to return an employee to work or taking an adverse action against an employee or applicant who fails a pre-employment, random, or post-leave return to duty drug test for marijuana will arguably create a claim for the employee against an employer for a violation of Illinois law. For example, an employee who undergoes a urine drug test (which shows use of marijuana within 30-45 days) following a workplace accident may argue that “recreational cannabis was lawfully used outside of work, and the accident/injury was unrelated to the employee’s legal use of cannabis outside of work.” Without more than the drug test result, the employer would be in a vulnerable position to argue against or defend such a claim. However, if the employer completed a post-accident report, which included a reasonable suspicion checklist, in which a trained supervisor observed and recorded symptoms/behaviors of drug use, the employer would be in a much better position to take an adverse action against the employee and dispute any such claim by an employee based on the observations and positive drug test.

With the changes to the Right to Privacy Act, it is important for employers to understand the potential exposure and damages. Under the Right to Privacy Act, aggrieved employees can recover actual damages, costs, attorneys’ fees and fines. As such, employers should make sure their practices and procedures are practical in light of these changes, until and unless the legislature or a court provides further clarity. Of course, the Illinois Department of Labor can provide such clarity through administrative rulemaking. However, that will likely not happen any time soon. 

Interestingly, the Act neither diminishes nor enhances the protections afforded to registered patients under the medical cannabis and opioid pilot programs (while cannabis use is not protected under federal law, the underlying medical condition is likely an ADA and IHRA-covered disability!). Much like under the Illinois medical marijuana law, the Act appears to require employers to take an additional step before disciplining or terminating an employee based on a “good faith belief” that the employee was impaired or under the influence of cannabis while at work or performing the job. After the employer has made a “good faith belief” determination and drug tested the employee, but before disciplining or terminating an employee, the employer must provide the employee with a reasonable opportunity to contest that determination. Once the employee is provided a reasonable opportunity to explain, an employer may then make a final determination regarding its good faith belief that the employee was impaired or under the influence of cannabis while on the job or while working, and what, if any, adverse employment action it will take against the employee without violating the Act. Requiring an employee to go through drug testing is still currently the best practice as a positive drug test will provide additional support for a supervisor’s reasonable suspicion determination.

What Employers Should Do to Diminish Legal Risks and Protect ‎their Workforce?

  1. First, get educated and evaluate all policies and practices that touch on providing and ensuring a safe workplace, including job descriptions. Review the law. Talk to legal counsel on an intimate basis. Assess workplace cannabis-tolerance (in general) and implement policies that can be enforced consistently amongst similarly situated employees. Policies that should be reviewed (and that could be affected) include those addressing health and safety (including accident reporting, smoking, and distracted driving), equal employment opportunity policies, workplace search/privacy policies and drug testing policies. Companies should also review with legal counsel, their drug testing vendor as well as their Medical Review Officer, the drug testing methodology being used to make sure that such is producing results that are useful, accurate and well vetted.
  2. Second, ensure managers and supervisors are well trained and capable of enforcing policies. Remember – exceptions and favoritism lead to discrimination claims.  Conducting training, especially training on reasonable suspicion detection, will be necessary to avoid legal challenges to a supervisor’s reasonable suspicion determination. Creating and/or updating forms for accident reporting (including witness statements), reasonable suspicion checklists, and established protocols for addressing suspected impairment in the workplace, is now more critical than ever.
  3. Third, clearly communicate management’s position and policies to employees, especially where there is a shift in current policy or practice. Educate employees on the effect of lawful and unlawful drug use and the employer’s policies regarding marijuana.
  4. Fourth, engage competent legal counsel to assist you in this process and in addressing difficult situations before they lead to costly and time-consuming litigation.

Finally, stay tuned for further state and national developments in this growing area of law. Be assured that SmithAmundsen’s Labor & Employment Group will be presenting timely webinars and seminars on this subject in the coming weeks and months.

Illinois Supreme Court to Decide Biometric Privacy Case

Contributed by Carlos Arévalo, November 27, 2018

Data breach 2In October of 2017, we first reported on the filing of a class action suit by a group of Chicago-area employees where plaintiffs alleged that their employer’s use of worker fingerprints for time-tracking purposes violates the Illinois Biometric Information Privacy Act (BIPA).  Specifically, the employees claimed that their employer failed to properly inform them in writing of the specific purpose for which their fingerprints were being collected and the length of time their fingerprints would be stored. Plaintiffs also claimed the employer failed to obtain written consent before obtaining fingerprints.

Then, this past June, we reported on a federal court’s decision finding that despite no concrete damage, an employee (and her putative class) might have a triable cause of action for violating her privacy and right to control her biometric data. The allegations in this case also included a failure to inform the specific purpose of collection and failing to obtain written authorization for the collection of biometric data.

On November 20, 2018, the Illinois Supreme Court heard oral arguments in a Rosenbach v. Six Flags Entertainment Corp., a case specifically addressing BIPA. While Rosenbach is not an employment case (it concerns a patron’s access to Six Flags), it nevertheless involves the issue of whether collection of biometric data alone triggers statutory damages even if the plaintiff has not claimed actual harm. The lower appellate court in Rosenbach found that alleging only technical violations of the notice and consent provisions of the statute is not tantamount to alleging an adverse effect or harm. Thus, how the Illinois Supreme Court rules in the next few months is bound to have a significant impact on Illinois employers and potentially elsewhere in the country.

In the meantime, to avoid and/or minimize any BIPA issues or potential liability, we continue to recommend that employers take the following steps:

    1. Establish a written policy that addresses the purpose(s) of biometric data use, how it will be collected, and how it will be stored.
    2. Be prepared to address any requests for reasonable accommodations based on disability, religious, or other reasons.
    3. If biometric data might leave a closed system, ensure that proper safeguards are in place, including contractual liability shifting.
    4. Ensure that employees whose biometric data is used acknowledge the policy, and authorize its use and collection.
    5. Train supervisors on the company’s policies and practices to ensure consistency.
    6. Have biometric data systems audited to ensure that data is not open to the public or a systems breach.
    7. Finally, consult with competent employment counsel to ensure that policies and practices comply with relevant law.

 

The New Year is Coming…Is Your Office Prepared with the Required Illinois Posters for 2019?

Contributed by Sara Zorich, November 20, 2018

As the holidays are quickly approaching and the hustle and bustle of the end of the year begins, it is important to focus on compliance for 2019. Illinois employers need to ensure that they have the required Illinois postings displayed in their workplaces. The following Illinois posters are required for the designated Illinois employers:

  1. NEW Discrimination and Sexual Harassment Poster (Required to be posted by ALL ILLINOIS EMPLOYERS as of September 2018). In addition, employers should review the notice to employers which outlines information about the poster AND the additional posting requirements necessary in the Company’s handbook.
  2. NEW Illinois Service Member Employment and Reemployment Rights Act (ISERRA) Poster (Required to be posted by ALL ILLINOIS EMPLOYERS by January 1, 2019). This is a new law applicable to public and private employers governing military service leave which aligns Illinois’ military law with the federal law USERRA. For private employers, there are some additional requirements beyond USERRA regarding performance reviews addressed in Section 330 ILCS 61/5-5(3) of the Act. This new law has NO IMPACT on the Illinois Family Military Leave Act which is still applicable law.
  3. Pregnancy Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  4. Know Your Rights Poster (Required to be posted by ALL ILLINOIS EMPLOYERS)
  5. Workers Compensation (Required to be posted by ALL ILLINOIS EMPLOYERS)
  6. Unemployment Insurance Benefits Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  7. Emergency Choking Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  8. Smoke Free Illinois Act Notice (Required to be posted by ALL ILLINOIS EMPLOYERS)
  9. Sexual Harassment in Higher Education Act Poster (Required for those entities who are a public university, a public community college, or an independent, not-for-profit or for-profit higher education institution located in Illinois)
  10. Employee Classification Act of 2008 Poster (Required to be posted by ALL ILLINOIS CONSTRUCTION CONTRACTORS that have one or more individuals that are not classified as employees)
  11. Illinois Occupational Safety & Health Act Poster (Required to be posted by ALL ILLINOIS PUBLIC SECTOR EMPLOYERS)
  12. Illinois Day and Temporary Labor Services Act (Required to be posted by ALL ILLINOIS TEMPORARY LABOR AGENCIES)

Post-Election Employment Implications in Illinois, Indiana, Missouri and Wisconsin

Contributed by Steven Jados, Rebecca Dobbs Bush, Suzanne Newcomb, and Brian Wacker November 7, 2018

47062864 - man putting a ballot into a voting box - usaWith the dust mostly settled after election night, we can now look at the impact the election will have on employment laws in Illinois, Indiana, Missouri and Wisconsin, and at the federal level.

Illinois: The major story in Illinois is the election of J.B. Pritzker as governor.  In short, his election is likely to usher in greater infrastructure spending—including an increase in prevailing wage jobs—and more aggressive enforcement efforts by state agencies charged with regulating employers and protecting employees. Beyond that, minimum wage increases, expansions to employee protections under the Illinois Human Rights Act, and more legislation favorable to employees are likely to receive strong consideration in the General Assembly in the near future.

Indiana: We do not expect to see any significant state-level changes in Indiana. Republicans maintained their supermajority in both chambers of the Indiana Statehouse and swept every statewide race on the ballot. Republican Eric Holcomb (elected to his first four year term in 2016) will continue as Indiana’s Governor.

Missouri: In Missouri, the elected status quo kept. Governor Mike Parsons, serving out former Governor Eric Greitens’ term, was not on the ballot. In the Legislature, Republicans maintained their supermajority status in both the Missouri State Senate and House of Representatives. In the Senate, the Republicans maintained their 24 to 10 seat lead over Democrats with no seats changing hands. In the House, preliminary results show that each party flipped three seats from the other, maintaining the Republicans’ dominant 116 to 47 seat advantage.

Missouri voters did, however, approve Proposition B, a minimum wage increase measure by a 62% to 38% margin. The measure increases the state’s current $7.85 minimum wage incrementally over the next five years to: $8.60 in 2019, $9.45 in 2020, $10.30 in 2021, $11.15 in 2022 and $12.00 in 2023. After 2023, the minimum wage will automatically increase or decrease based on Consumer Price Index for Urban Wage Earners and Clerical Workers. The measure also increases the penalty for employers paying employees less than minimum wages. Affected workers can now recover the full amount of the wage rate and an additional amount equal to twice the unpaid wages as liquidated damages.

Wisconsin: In 2011, Governor Walker drew national attention to Wisconsin when he revealed his plan to eradicate collective bargaining for most public workers. Since 2013, the governor and the legislature in Wisconsin have been dominated by Republicans. Scott Walker’s loss to Tony Evers, marks the end of that complete control. And based upon a law signed last year by Governor Walker, the margin of loss, while extremely narrow, is not narrow enough to demand a recount.

Evers campaigned on promises to cut income taxes by 10 percent for people making less than $100,000 and for families making less than $150,000. Evers has also stated that it is his goal to eliminate the limitations on unions (known as Act 10). However, with the legislature remaining primarily Republican, such a goal will likely remain out of reach.

Change does not happen overnight and a Republican legislature will slow any initiatives of Democrat, Tony Evers. However, the loss of a 5 year complete Republican majority of government will certainly have an effect on Wisconsin businesses.

Federal: At the federal level, little is likely to change over the next two years with respect to the Executive and Legislative branches of government. As long as Republicans remain in the White House, the composition and direction of the National Labor Relations Board (NLRB) is unlikely to shift dramatically from its current course. The Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), and other agencies charged with regulation and enforcement of employment-related laws are also likely to continue to operate much as they have for the last two years—albeit with less-aggressive enforcement initiatives directed at businesses and, perhaps, smaller budgets. The prospect of significant employment-related legislation—whether protective of employees or businesses—seems quite unlikely for the foreseeable future given that Democrats control the U.S. House of Representatives, and Republicans control the Senate. However, there is some talk that family paid medical leave and an infrastructure bill may receive bipartisan support. We shall see. Of course, Republicans are likely to continue to use their Senate majority to fill judicial vacancies with conservative judges.

Although gridlock is likely in the federal government, we expect plenty of employment-law related activity at the state level, particularly in Illinois, and we will continue to apprise you of new developments as they arise.

 

Illinois Amends Nursing Mothers in the Workplace Act to Expand Rights of Breastfeeding Mothers

Contributed by Allison P. Sues, September, 19, 2018

96042497 - baby milk bottles and pacifier on white background

baby bottles and pacifier on white background

Illinois employers should be aware of amendments to the Illinois Nursing Mothers in the Workplace Act that expand the rights of employees who need to express milk while they are at work. Both before and after the amendments, the Act requires employers to provide a private space, other than a toilet stall, for mothers to pump at work. The amendments, which went into effect immediately when Governor Bruce Rauner signed House Bill 1595 on August 21, 2018, make some key changes to the law, each discussed below:

  • Employers cannot require employees to pump during their break time. Formerly, the Act provided that the employee’s pumping break “must, if possible” run concurrently with other break times provided. The amendments now provide that the pumping break “may” coincide with other break times, but adds that employers must provide “reasonable breaks each time the employee has the need to express milk for one year after the child’s birth.” These amendments provide moms with greater control in scheduling pump breaks according to their needs, and confirm that an employer cannot require an employee to schedule pumping breaks around other previously scheduled breaks.
  • Employers cannot reduce pay for pumping breaks. The prior version of the Act required employers to provide “unpaid” breaks for pumping mothers. The amendments remove the word “unpaid,” and instead state that an “employer may not reduce an employee’s compensation for the time used for the purpose of expressing milk.” While the Act does not expressly provide that all pumping breaks must be paid, it does prohibit employers from reducing an employee’s pay for pumping breaks. Under a fair reading of these amendments, employers should pay employees exactly as they would have if they were not taking pumping breaks. If an employee needs to pump during a regularly scheduled unpaid break, the employer does not need to pay her for that time.  However, if an employee needs to pump during a time period that is regularly paid, the employer cannot reduce her pay for that time spent pumping.
  • Employers may only restrict employees from pumping if it causes an undue hardship. The former act provided that an employer is not required to provide this break time if it would “unduly disrupt the employer’s operations.” Under the new amendments, an employer may only restrict mothers from pumping at work if it can satisfy the higher burden of showing an undue hardship, as defined by the Illinois Human Rights Act. This means an employer would need to show that a pumping break would be prohibitively expensive or disruptive given the employer’s size, financial resources, and operation, among other factors.

As before, this Act applies to employers who have more than five employees. The requirement that employers provide a private space to pumping mothers in close proximity to their work area remains unchanged. In light of these amendments, employers should review their workplace lactation policies and reach out to employment counsel with any questions.

 

House Republicans Try to Remedy Patchwork of Paid Sick Leave

Contributed by Beverly Alfon, November 10, 2017

Eight states, the District of Columbia, and more than 30 municipalities have enacted laws mandating differing paid leave requirements. Localities such as New York and San Francisco, have enacted some of the most aggressive sick leave requirements in the country. Employers doing business within the City of Chicago have also been left to deal with a trifecta of sick leave laws in 2017:  the IL Employee Sick Leave Act, the Cook County Paid Sick Leave ordinance, and the City of Chicago paid sick leave ordinance. All of this has resulted in an administrative nightmare for employers dealing with more than one set of sick leave requirements.

sick leave 2

On November 2, 2017, three Republicans in the U.S. House of Representatives, Reps. Mimi Walters (R-CA), Elise Stefanik (R-NY) and Cathy McMorris Rodgers (R-WA), introduced a bill, The Workflex in the 21st Century Act (H.R. 4219). Supporters of the bill tout that the legislation gives employees job flexibility, while also giving employers more certainty and predictability over their leave practices. The bill provides for a voluntary program that is comprised of a combination of guaranteed paid leave and increased workplace flexibility options to employees. The amount of paid leave required (ranging from 12 days up to 20 days) would depend on an employee’s tenure and the employer’s size.  At least one type of workflex option would also be made available to employees, which may include a compressed work schedule, biweekly work program, telecommuting program, job-sharing program, flexible scheduling or a predictable schedule.  The incentive for an employer is that participation in the program would shield it from the mish-mosh of paid leave obligations stemming from state and local laws currently in effect.

The bill would not require employees to use the workflex option in order to take advantage of the paid days off. Also, to be eligible for a workflex arrangement, an employee would have to be employed for at least 12 months by the employer and would have to have worked at least 1,000 hours during the previous 12 months. More details regarding the bill can be found here.

Bottom line: Where this bill will end up obviously remains to be seen, but it has strong support from the Society for Human Resource Management (SHRM), the U.S. Chamber of Commerce, National Association of Manufacturers, National Association of Women Business Owners and other employer groups. Until there is a solution to the administrative hopscotch required of employers whose employees work in different cities, counties and states, employers must do their best to stay on top of the applicable paid sick leave requirements and related rules and regulations, and adjust their policies and procedures accordingly.