Beginning on January 1, 2015, Illinois employers will be subject to new state laws governing criminal background checks, pregnancy accommodations, sexual harassment, and payroll cards. Illinois employers should take steps now to make sure that they are ready to comply with these new mandates.
The Box is Banned
The Job Opportunities for Qualified Applicants Act (“the Ban the Box Act”) will prohibit most Illinois employers from considering or inquiring into a job applicant’s criminal record or history until the individual has been determined qualified for the position and notified of an impending interview or, if the applicant will not be interviewed, until after a conditional offer of employment is made. The Ban the Box Act does not apply in the following situations:
- If the employer is required to exclude applicants with certain criminal convictions from employment under federal or state law;
- If a standard fidelity bond or an equivalent bond is required and a conviction of certain criminal offenses would disqualify the applicant from obtaining such a bond, the employer may inquire whether the applicant has ever been convicted of those offenses prior to determining whether the individual is qualified for the position; and
- If the employer hires individuals licensed under the Emergency Medical Services (EMS) Systems Act.
The Ban the Box Act does not preclude an employer from notifying applicants in writing of specific offenses that will disqualify an applicant from employment in a particular position due to federal or state law or the employer’s policy. The Illinois Department of Labor will enforce the Act.
The new law does not prohibit employers from asking about criminal background or conducting criminal background checks, but it affects the timing of those inquiries. As always, Illinois employers may not at any time request information about or make adverse employment decisions based on arrest records or convictions that have been impounded, sealed, or expunged.
New Reasonable Accommodation Mandates for Pregnant Workers
An amendment to the Illinois Human Rights Act (“IHRA”) creates new protections for pregnant workers in Illinois. The new law adds pregnancy to the IHRA’s list of classes protected against discrimination, and it defines “pregnancy” as “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.” It requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth and makes it unlawful to fail to hire or otherwise retali- ate against an employee or applicant for requesting such accommodations.
If an employer demonstrates the accommodation would impose an undue hardship on the “ordinary operation of the business of the employer,” however, the employer need not provide the requested accommodation. “Undue hardship” is an action that is “prohibitively expensive or disruptive.”
The new law defines reasonable accommodations as reasonable modifications or adjustments to the job application process, work environment, or circum- stances under which a position is customarily per- formed. The law specifies that employers are not required to create additional employment positions that the employer otherwise would not have created, unless the employer does so or would do so for other classes of employees who needed accommodations. It mandates that the employer and employee engage in a “timely, good faith, and meaningful exchange to determine effective reasonable accommodations.”
Under the new law, employers may require an employee to provide a certification from the employee’s health care provider concerning the need for the requested reasonable accommodation to the “same extent” a certification is requested for other conditions related to a disability, if the employer’s request is job-related and consistent with business necessity. The new law limits the information that can be requested in that certification.
Employers must reinstate an employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position, unless the employer can demonstrate that doing so would impose an undue hardship. Information about the new law must be posted in a conspicuous location and included in the employee handbook, if any.
Payroll Card Restrictions
Illinois employers must obtain written consent from employees paid through a payroll card program, and the program cannot be linked to forms of credit such as overdraft fees, cash advances, or loans against future wages. The new law forbids making use of the cards a condition of employment and preserves an employee’s right to demand payment of wages by either a paper check or direct deposit.
The law provides that payroll cards may not include certain features, and employees have a right to switch to another method of payment that they prefer. The employer must comply with such a request within two pay periods. The employer must give notice to employees within 30 days of the termination of the employer-employee relationship that the terms and conditions of the account may change if the employee chooses to continue a relationship with the payroll card issuer.
Unpaid Interns Protected from Sexual Harassment
The IHRA has been amended to expand the definition of “employee” to include unpaid interns for purposes of sexual harassment.
Get Ready for the New Year
Illinois employers should consider taking the following steps before year end to ensure compliance with these new mandates:
- Review positions to determine if they are exempt from the Ban the Box Act (employers in certain industries, such as banking, insurance, health care, gaming and education, among others, may fall within exceptions);
- Revise application forms and procedures to bring them into compliance with the Ban the Box Act;
- Review accommodation and light duty policies and practices in light of the new requirements for pregnancy accommodation;
- Post the required notice regarding pregnancy accommodation and include it in the employee handbook;
- Review payroll card procedures to ensure that they are in compliance with the new restrictions on payroll cards;
- Revise anti-harassment policies and training materials to make it clear that unpaid interns are protected from sexual harassment; and
- Conduct training for supervisors and human resources professionals to make sure they are aware of the new laws.