As we reach the end of 2018, it is important for employers to review their current policies to confirm they are complying with any new laws. In 2018, the Illinois legislature passed a number of bills impacting Illinois employers that the governor signed into law and employers should note:

Employment Law Updates effective in 2019

Illinois Now Requires Paid Nursing Breaks. Effective immediately, Illinois now requires employers to provide paid breaks to mothers who breastfeed or express milk at work for one year after the child’s birth, pursuant to an amendment of the Illinois Nursing Mothers in the Workplace Act. Previously, employers were required to provide only unpaid breaks. Although break time used to express milk or nurse may run concurrently with any break time already provided, the key point is that an employer cannot reduce an employee’s compensation for time used for this purpose. An employer is required to provide these breaks unless it can demonstrate that doing so would create an “undue hardship,” as defined by the Illinois Human Rights Act (“IHRA”). Employers bear the burden of proving “undue hardship,” which is significant, and therefore it is recommended that this exemption not be relied upon. Recommendation: Employers should: (1) allow for paid nursing breaks; and (2) review/update or enact policies regarding break and lactation accommodations.

Illinois Law Now Expressly Requires Expense Reimbursement for Employees. Effective January 1, 2019, the Illinois Wage Payment and Collection Act (“IWPCA”) will expressly require employers to reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” Employers are not required to reimburse for losses caused by employee negligence or normal wear or theft. Employers are also not required to reimburse unauthorized expenses or requests that fail to comply with written reimbursement policies. Recommendation: Employers should implement written reimbursement policies, because if they do, employees must comply with a reasonable policy to obtain reimbursement. The remedies available for violations are those generally outlined in the IWPCA, which include reimbursement, damages equal to two percent of the underpayment per month of non-payment, and attorneys’ fees and costs reasonably incurred in pursing recovery. One important area to consider is cell phone use. As one commentator observed: “Given the proliferation of ‘bring your own device’ policies and employee use of personal cell phones, laptops, tablets, and other equipment for business use, employers . . . must determine when and if the use of such devices constitutes a reimbursable business expense.”

Illinois Enacts Broad Employment Statute for Military Service Members. Effective January 1, 2019, the rights of Illinois employees serving in the military will be governed by the Illinois Service Member Employment and Reemployment Rights Act (ISERRA), Public Act 100-1101. ISERRA is modeled after the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), however ISERRA provides additional protection beyond USERRA, including (1) an expanded definition of “military service,” which includes service in a federally recognized auxiliary of the United States Armed Forces, service covered by the Illinois State Guard Act, and periods when service members are absent from employment for medical treatment related to active service; (2) special treatment and procedures for performance reviews; (3) different methods of enforcement and damages availability, including the right to bring a private action, no statute of limitations, and the availability of attorneys’ fees and up to $50,000 in punitive damages to a prevailing plaintiff; and (4) the creation of an ISERRA Advocate, who will assist both service members and employers with questions about ISERRA. Recommendations: Employers should: (1) review/update or enact policies that comply with ISERRA; and (2) post the required notice of employee rights under ISERRA.

Illinois Strengthens Equal Pay Protections for African-American Employees. Effective January 1, 2019, the Illinois Equal Pay Act (“IEPA”) will cover pay discrimination between African-Americans and non-African-Americans. The amendment expressly prohibits employers from paying African-American employees who are performing “the same or substantially similar work” less than other employees. Previously, the IEPA was limited to ensuring equal pay between male and female employees. Recommendation: Employers should: (1) review employee compensation to ensure compliance with the IEPA by confirming that compensation is consistent with neutral, nondiscriminatory wage structures; and (2) consider revising job descriptions to ensure they are detailed to avoid vague claims that one employee’s work is necessarily “the same or substantially similar” to another’s, so as to protect against meritless IEPA claims.

Minimum Wage Increases for Chicago and Cook County, Illinois Set for July 1, 2019. Effective July 1, 2019, the minimum wage in Chicago will increase from $12 to $13 per hour, and the minimum wage in broader Cook County will increase from $11 to $12 per hour. This will necessarily affect the maximum tip credit that some employers may be able to take.

Employees Have Additional Time to File a Charge with the Illinois Department of Human Rights (“IDHR”). Effective immediately, under the Illinois Human Rights Act (“IHRA”), employees now have 300 days (as opposed to 180 days) to file a charge with the IDHR. This timeframe is now identical to the timeframe to file with the federal Equal Employment Opportunity Commission (“EEOC”).

Employees May Now Opt Out of the IDHR’s Administrative Process and Immediately File a State Court Lawsuit. Effective immediately, employees may now opt out of the IDHR’s administrative investigation and immediately bring lawsuits in Illinois state courts. Within 10 days of an employee filing a charge with the IDHR, the IDHR must send the employee notice of the right to opt out of the IDHR’s investigative process. An employee has 60 days from receipt of the IDHR’s notice to submit a written request seeking permission to opt out of the investigative process. If the employee chooses to opt out, the IDHR has another 10-day period to respond to the employee’s request. The right to opt out will not require a factual or legal determination by the IDHR. Once the employee receives a notice indicating that the request to opt out is granted, the employee has 90 days to file a suit in circuit court. This should lead to an increase of Illinois state court discrimination cases, with the implication being employees—especially those with savvy counsel—may avoid the dual filing with the EEOC.

The Illinois Human Rights Commission (“IHRC”) Is Receiving Additional Resources to Improve Efficiency. The IHRC will now have additional members, in an effort to decrease the backlog of cases and expedite the administrative process. This change is effective immediately.

New Government Office Created for Enforcing Chicago Employment Ordinances. Beginning January 1, 2019, Chicago will have a new office, the Office for Labor Standards (“OLS”), enforcing the city’s employment ordinances and promoting investigation into alleged violations. The OLS will enforce the Anti-Wage Theft Ordinance of 2013, Minimum Wage Ordinance of 2014, and Paid Sick Leave Ordinance of 2017, and investigate related complaints. The creation of the OLS does not change the underlying ordinances, but rather suggests a more dedicated and rigorous governmental enforcement mechanism.

Potential Employment Law Changes

Illinois Legislative Outlook: Possible State-Wide Minimum Wage Increase in 2019. Newly elected governor, J.B. Pritzker, supported a $15 minimum wage on the campaign trail. Now that Democrats have a supermajority in both Illinois legislative bodies, it seems likely that Illinois will enact a minimum wage increase from the current $8.25 per hour. Previously, in 2017, the Illinois General Assembly tried to pass a statewide minimum wage increase to $15 by 2022, but Gov. Rauner vetoed it.

Illinois Legislative Outlook: Possible Prohibition on Pay History Inquiries in 2019. In 2017, the Illinois General Assembly passed H.B. 2462, which would have prohibited employers from screening job applicants based on their wage or salary history. This bill was vetoed by Gov. Rauner. In 2018, a similar bill, H.B. 4163, was passed by the Illinois legislature—but again vetoed by Gov. Rauner in September 2018. With the newly elected governor, and supermajorities in both legislative bodies, it seems inevitable that Illinois will enact legislation outlawing pay history inquiries, possibly in 2019.