As the legislative session drew to a close at the end of May, the Illinois General Assembly approved several new laws that will affect Illinois employers beginning January 1, 2015. The laws are now awaiting approval by Governor Pat Quinn, who is expected to sign them.
The Human Rights Act has long banned discrimination based upon pregnancy and childbirth, but new amendments in House Bill 8 will significantly expand those protections. For the first time, the Human Rights Act’s pregnancy discrimination provisions will apply to all employers, not just those with 15 or more employees. The law also expands the definition of pregnancy discrimination to include discrimination against employees or applicants based on “medical or common conditions related to pregnancy or childbirth.” Further, the legislation requires all Illinois employers to provide reasonable accommodations to employees and applicants experiencing “pregnancy, childbirth or related or common conditions related to pregnancy and childbirth,” unless the employer can prove that providing the accommodation would present an undue hardship to its ordinary business operations. The legislation makes it unlawful to discriminate or retaliate against an employee or applicant for requesting an accommodation. It also precludes employers from forcing an employee to accept an accommodation that she did not request, or to take leave from work if another accommodation is available that would permit the employee to continue working.
The legislation provides specific examples of accommodations that may be required absent undue hardship, including:
- More frequent or longer breaks to use the bathroom, drink water, or rest;
- Private non-bathroom space for expressing breastmilk or breastfeeding;
- Assistance with manual labor;
- Light duty work;
- Temporary transfer to a less strenuous or hazardous position;
- Provision of an accessible worksite;
- Acquisition or modification of equipment;
- Job restructuring;
- Part-time or modified work schedule;
- Adjustment of examinations, training materials or policies;
- Reassignment to a vacant position;
- Leave for pregnancy, childbirth, medical or common conditions resulting from pregnancy or childbirth, or to recover from childbirth or related conditions.
The law states that employers are not required to create new jobs that would not be created for other classes of employees who need accommodation (e.g., for disabilities), to discharge or transfer other employees, or to promote an employee to a position for which she is not qualified, unless the employer would do so in order to accommodate other employees.
Employers will be required to notify employees of the new law by posting a notice to be provided by the Illinois Department of Human Rights along with other required employment law posters, and by including the notice in any employee handbook. The law requires the Department to make the notice available on its website.
Restrictions on Criminal Background Inquiries
Following the trend of “ban the box” legislation in other states and municipalities, House Bill 5701 creates the Job Opportunities for Qualified Applicants Act, which restricts when and how employers can request and use criminal conviction information in the hiring process. The Act will apply to employers with 15 or more employees in the current or preceding calendar year.
Under the new law, employers and employment agencies will be prohibited from inquiring about, considering, or requiring disclosure of an applicant’s criminal record or criminal history “until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency.”
The law provides exceptions for positions where:
- Employers are required to exclude applicants with certain criminal convictions from employment due to state or federal law;
- Convictions for certain specified criminal offenses would disqualify the applicant from obtaining a required fidelity bond, in which case the employer may ask the applicant about those specific types of convictions;
- The applicant is licensed under the Emergency Medical Services (EMS) Systems Act.
If the Governor approves the legislation, the Act will be enforced by the Illinois Department of Labor. First violations may result in a written warning with 30 days to remedy the violation. If an employer engages in subsequent violations or fails to remedy a first violation, the Department may impose civil penalties of up to $1,500. Violations that are not remedied within 90 days may result in additional civil penalties of $1,500 for every 30 days that passes without compliance. The law does not change existing provisions of the Illinois Human Rights Act that bar employers from making employment decisions based upon records of arrest, as opposed to convictions.
Sexual Harassment Protection for Unpaid Interns
House Bill 4157 amends the Illinois Human Rights Act to specify that the term “employee” includes unpaid interns for purposes of the Act’s prohibitions regarding sexual harassment. The amendment defines an unpaid intern as a person who performs work for an employer under the following conditions:
- the employer is not committed to hiring the person performing the work at the conclusion of the intern's tenure;
- the employer and the person performing the work agree that the person is not entitled to wages for the work performed; and
- the work performed:
- supplements training given in an educational environment that may enhance the employability of the intern;
- provides experience for the benefit of the person performing the work;
- does not displace regular employees;
- is performed under the close supervision of existing staff; and
- provides no immediate advantage to the employer and may occasionally impede the operations of the employer.
New Requirements for Payroll Card Programs
House Bill 5622 amends the Illinois Wage Payment and Collection Act to establish new requirements for the use of payroll cards as a means of paying employees. The law will prohibit employers from requiring employees to accept pay by means of payroll cards, and mandate that employers provide alternative means of payment should an employee decline to use a payroll card. Employers who use payroll cards will be required to provide employees with a “clear and conspicuous written disclosure explaining the terms and conditions of the payroll card account option” including information on account and transaction fees.
Payroll card programs must also provide:
- A means for employees to withdraw their full net wages every two weeks at no cost, at a location readily available to the employee;
- Upon employee request, a monthly transaction history at no cost to the employee, showing all deposits, withdrawals, deductions, and charges to the payroll card account;
- At least one of the following options to obtain the account balance at any time without a fee: online, by telephone, by text message, or at an ATM location.
The law will prohibit use of payroll card programs that include fees for declined transactions, point of sale transactions, loading wages by the employer, or program participation. Fees for account inactivity may only be assessed after one year of inactivity. Payroll card programs may not be linked to any form of credit such as overdraft fees or overdraft service fees, loans against future pay, or cash advances on future pay or work not yet performed. The program must also include protections from unauthorized use of the payroll card in accordance with state and federal law concerning electronic fund transfers. If an employee enrolled in a payroll card program asks to switch to a different method of payment, the employer must make that change within 2 pay periods.
Non-Binding Referendum on Minimum Wage Increases
While it does not appear that there will be an increase in the state minimum wage in 2014, the General Assembly approved House Bill 3814, which requires the State Board of Elections to include a statewide advisory question on the November 4, 2014 general election ballot, asking voters whether the minimum wage for adults over age 18 should be raised to $10 per hour by January 1, 2015. While a “yes” vote on the referendum by no means guarantees that a minimum wage increase will be approved, employers obviously need to be prepared for that possibility.
What Should Employers Do?
- First, keep abreast of developments in the law. While it is very likely that Gov. Quinn will approve the laws now awaiting his signature, they are not in effect yet, and even if approved will not take effect until January 1, 2015. We will issue updates as these laws are approved.
- Stay up to date on regulations and other guidance from the state agencies charged with enforcing these laws, particularly the Illinois Department of Human Rights (which will need to issue an updated Human Rights Act poster) and Department of Labor. Stay tuned to these alerts for further information.
- Be prepared to implement changes to your employment policies and practices to comply with the new laws. If you have not done so recently, this is a good opportunity to review your employee handbook or policy manual to determine whether any other updates are needed.
- If you have questions about how the new laws will affect your workplace, don’t wait until January 1 to figure out how you are going to comply. Think through the issues ahead of time, come up with a plan of action, and consult with your attorney to make sure that you are on the right track.