Category Archives: Illinois Employers

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.

Salary History Inquiry Bill Down But Far From Out

Contributed by Noah A. Frank, September 19, 2017

wage

On June 28, 2017, HB 2462, an amendment to the Illinois Equal Pay Act, passed both chambers of Illinois General Assembly. The bill would have made an employer’s inquiry into an applicants’ wage, benefits, and other compensation history an unlawful form of discrimination. Even worse for Illinois employers, the bill would allow for compensatory damages, special damages of up to $10,000, injunctive relief, and attorney fees through a private cause of action with a five (5) year statute of limitations.

On August 25, 2017, Governor Rauner vetoed the bill with a special message to the legislature that, while the gender wage gap must be eliminated, Illinois’ new law should be modeled after Massachusetts’s “best-in-the-country” law on the topic, and that he would support a bill that more closely resembled Massachusetts’ law.

The bill, which passed 91 to 24 in the House, and 35 to 18 in the Senate, could be reintroduced as new or amended legislation following the Governor’s statement, or the General Assembly could override the veto (71 votes are needed in the House, and 36 in the Senate, so this is possible) with the current language.

Why is this important?

With the Trump Administration, we have seen an increase in local regulation of labor and employment law. This means that employers located in multiple states, counties, and cities must carefully pay attention to the various laws impacting their workforces. Examples of this type of “piecemeal legislation” we have already seen in Illinois and across the country include local ordinances impacting minimum wage, paid sick leave, and other mandated leaves. Additionally, laws that go into effect in other jurisdictions may foreshadow changes at home as well (e.g., Illinois’s governor pointing towards Massachusetts’s exemplary statue).

Had it become law, this amendment would have effective required employers to keep applications and interview records (even for those they did not hire) for five years to comply with the statute of limitations for an unlawful wage inquiry (the Illinois Equal Pay Act already imposes a five year status of limitations for other discriminatory pay practices). By contrast, under Federal law, application records must be kept for only one year from the date of making the record or the personnel action involved (2 years for educational institutions and state and local governments).

What do you do now?

While the law has not gone into effect as of the date of this blog, it is likely that some form of the salary history amendment will ultimately become law in Illinois. Businesses should carefully review their job applications, interview questions, and related policies to avoid inquiries that may lead to challenges in the hiring process.

Additionally, record retention (and destruction!) policies should be reviewed for compliance with these and other statutes – as well as to ensure data integrity and security.

Finally, seek the advice of experienced employment counsel for best practices in light of national trends to remain proactive with an ounce of prevention