In August 2009, Illinois Governor Quinn signed legislation amending three Illinois employment laws. Employers should be aware of additional exposure now potentially arising under the amendments to the Illinois Equal Pay Act, the Victim’s Economic Security and Safety Act (“VESSA”) and the Illinois Human Rights Act.
Illinois Equal Pay Act
The Illinois Equal Pay Act has been amended to adopt the federal standard for determining the timeframe for filing a state law complaint for gender-based wage discrimination. The amendment follows the paycheck-based statute of limitation standard established under the federal Lilly Ledbetter Fair Pay Act (“Ledbetter Act”). The new amendment, Illinois Public Act 96-467, defines the “date of underpayment” as the date on which wages are underpaid.” Following the Ledbetter Act, the new law provides that each discriminatory paycheck is a continuing violation and restarts the clock for filing claims.
The Ledbetter Act was enacted in 2008 to reject the U.S. Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). The Supreme Court had ruled that a claimant alleging pay discrimination must file a charge within 300 days after a discriminatory compensation decision was made and that each paycheck reflecting the continuing effects of past discriminatory pay decisions does not restart the clock. The Ledbetter Act rejected this ruling and provides that “an unlawful employment practice occurs … when a discriminatory compensation decision or other practice is adopted, [or] when an individual becomes subject to [it]…, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”
The Illinois Equal Pay Act amendment, effective August 14, 2009, has even broader coverage than federal law because the state law applies to employers with four or more employees, versus 15 employees under most federal discrimination laws.
The Illinois equal Pay Act amendment includes additional changes: (1) it doubles the period for filing an equal pay claim with the Illinois Department of Labor (“IDOL”), from 180 days to one year from the date the employee learned of the violation; (2) the statute of limitation for such actions was expanded from three to five years; and (3) employers now are generally required to preserve records prescribed by IDOL for five years, rather than three.
VESSA mandates unpaid leave based on an employee or his family or household member being the victim of domestic or sexual violence. Illinois S.B. 1770 expands VESSA to cover smaller employers. Prior to the amendment, VESSA required employers with 50 or more employees to provide unpaid leave of up to 12 weeks to victims of domestic or sexual violence. Now, employers with between 15 and 49 employees must provide up to eight weeks of unpaid leave to victims of such violence.
The VESSA amendment also expands the definition of “family or household member” to add “any person related by blood, or by present or prior marriage, and any other person who shares a relationship through a son or daughter” to the original “spouse, parent, child or resident of such household.”
Another significant change eliminates the employer’s right to require employees to substitute other paid or unpaid leave (family, medical, sick, PTO, personal or similar leave) for absences under VESSA. The new VESSA amendment also encourages employers to post and/or have written VESSA policies in their employee handbooks. Absent such posting or written policy, employers may have increased difficulty later arguing that an employee was not entitled to VESSA leave or did not cooperate in providing proof of eligibility.
Illinois Human Rights Act
Employees are protected from discrimination and retaliation under the Illinois Human Rights Act based on “protected classifications”: race, national origin, disability, age, sex, sexual orientation and marital status.
Illinois Public Act 96-477 amended the Illinois Human Rights Act, adding “order of protection status” to the list of classes protected under the state law. Upon the amendment’s effective date of January 1, 2010, the Act will bar employers from taking discriminatory action against an individual who is the beneficiary of an order of protection issued under the Illinois Domestic Violence Act, or a similar order issued by a court in another state.
In order to comply with these new changes, employers should consider updating their employment policies and practices and train their human resources, management and supervisory personnel accordingly. Take heed of the new recordkeeping requirements and posting/policy recommendations under these amendments. We would be happy to advise and assist you with these steps to help control the company’s exposure.