Illinois Rings in 2019 With New Employment Laws

As we welcome 2019, the following is a recap of new laws affecting Illinois employers.

Illinois Human Rights Act

The Illinois Human Rights Act (IHRA) now requires all Illinois employers to advise employees of their right to be free from harassment, discrimination, and retaliation in the workplace.  Employers must post a notice provided by the Illinois Department of Human Rights (IDHR) and include the same content found in the notice in their employee handbooks.  The notice can be found here. The notice informs employees that they have the right to be free from unlawful discrimination and sexual harassment, to request reasonable accommodations based on pregnancy and disability, and to report or otherwise complain about discrimination without the fear of retaliation.  The notice also provides details on how and where to report discrimination to the IDHR.

The IHRA also now allows employees to opt-out of the IDHR investigation process and proceed directly to state court (similar to the process under federal law).  To opt-out, the employee must send a notice of intent to opt-out within 10 days of filing a charge.  After the IDHR grants the request, the employee has 90 days to file suit in state court.

The IHRA has also been amended to extend the period for filing a charge of discrimination with the IDHR from 180 days to 300 days, mirroring the time frame within which employees must file a charge with the EEOC.

Break Time for Nursing Mothers

The Nursing Mothers in the Workplace Act has been amended to expand the rights of nursing mothers.  Previously, the law provided that breaks for nursing mothers “must, if possible” run concurrently with employer provided breaks.  Now, employers with 5 or more employees must provide “reasonable” paid breaks each time the employee needs to express breast milk for up to one year after the child’s birth.  Employers may not reduce an employee’s compensation for time spent expressing breast milk.  Prior to the amendment, an employer could have claimed an exemption from providing breaks if the employer could show that providing the break time would “unduly disrupt” the employer’s operations.  Now, employers must satisfy the higher burden of showing an “undue hardship” as defined under the IHRA.

Employee Reimbursement for Business Expenses

The Illinois Wage Payment and Collection Act (IWPCA) was amended on August 26, 2018, to 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 service performed for the employer.”  The IWPCA defines “necessary expenditures” as “all reasonable expenditures or losses required of the employee in the discharge of employment duties that inure to the primary benefit of the employer.”  Employers are not required to reimburse an employee for expenses as a result of employee negligence, normal wear, or theft, unless as a result of the employer’s negligence.  Employers can establish written reimbursement policies and can refuse to reimburse an employee who violates these policies.  Employers may also establish a period for submitting reimbursement requests, but must allow a minimum of 30 days.

Equal Pay Act Expanded to African American Employees

The Illinois Equal Pay Act of 2003 has been amended to prohibit discrimination against African Americans who perform “the same or substantially similar work” as their non-African American co-workers.  The law originally only prohibited employers from paying men and women different wages for the same work.  The law permits pay differences where wages are paid on the basis of seniority, merit, quantity, or quality of production or “any factor other than: (i) race or (ii) a factor that would constitute unlawful discrimination” under the IHRA.

Office of Labor Standards

On January 1, 2019, Chicago opened the Office of Labor Standards (OLS), a new office tasked with enforcing the City’s employment ordinances.  The OLS is devoted to investigating employee complaints under the City’s minimum wage, paid sick time, and anti-theft wage ordinances.  It will also proactively investigate employers it believes could be violating any of the city’s other labor ordinances.  In addition to its enforcement duties, the OLS is also tasked with collecting and analyzing data to improve working conditions and practices, developing programs for working safety and recommending efforts to achieve workplace equality.

Illinois Service Member Employment and Reemployment Rights Act

Recently enacted, the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) strengthens and simplifies current state laws designed to provide employment protections to service members.  ISERRA is modeled after the Federal Uniformed Services Employment and Reemployment Act of 1994 (USERRA).  Both laws require employers to provide job-protected leave to service members called to military service.

ISERRA provides additional protections, including expanding upon USERRA’s definition of military service to include service in a federally recognized auxiliary of the United States Armed Forces (when performing official duties in support of military or civilian authorities as the result of an emergency), service covered by the Illinois State Guard Act, and a period during which service members are absent from employment for medical or dental treatment related to a condition, illness or injury sustained or aggravated during a period of active service.

ISERRA also has expanded seniority protections for service members absent on military leave.  A service member who is absent on military leave must be credited with an average performance rating, calculated by averaging the employee’s efficiency or performance rating that the employee received over the three years preceding the leave.  Also, the average rating cannot be lower than the rating that the employee received for the last rating period preceding his or her leave.

ISERRA applies to public employees only.  Employers must continue to pay service member salaries during annual training for up to 30 non-consecutive calendar days per year.  When a service member is in active duty, the employer is required to continue contributions to the employee’s group health insurance premium if the employee chooses to continue receiving the benefits while on military leave.

ISERRA requires public employers to post a notice of employee rights under the Act, which can be found here.

ISERRA leaves intact the Illinois Family Military Leave Act, which provides family members of a service member with up to 15 or 30 days of unpaid leave—depending on the employer’s size—when that service member is called to military service lasting more than 30 days.

One Day Rest in Seven Act

Illinois’ One Day Rest in Seven Act has been amended to provide an exemption to on-call employees of private companies licensed under the Emergency Medical Services (EMS) Systems Act.  The Act requires employers to provide employees with at least 1 day of rest in a 7-day period and a minimum 20-minute meal break if the employee is scheduled to work at least 7.5 hours.  The amendment provides an exemption to EMS employees who are required to be on call for an 8-hour period.  Employers must allow these employees to eat a meal at some point during the 8 hours they are on call.

Employer Tax Credit for Paid Family and Medical Leave

For the balance of 2019, there is a federal tax credit available to employers who provide paid family and medical leave to qualifying employees making less than $72,000.  Such paid leave must be specific to family and medical leave (such as short-term disability benefits or paid parental leave) and does not include regular paid time off, vacation or sick leave.  To claim the credit, an employer must have a written policy in place that (1) covers all qualifying employees, including part-timers, (2) provides at least two weeks of annual paid family and medical leave for each full-time qualifying employee and at least a proportionate amount of leave for each part-time qualifying employee, (3) provides for payment of at least 50% of the qualifying employee’s wages while the employee is on leave, and (4) contains certain “non-interference” language.  The credit will apply only to family and medical leave payments made after the date the written policy is both effective and adopted (though amendment to an an existing policy in 2018 to comply and then paying back benefits was permissible).

The HR attorneys at Gould & Ratner are available to discuss any questions or other issues involving any of the new laws discussed here.  Please do not hesitate to contact us for further information.

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Post by Mark Brookstein

Focusing on commercial litigation and employment law, Mark Brookstein enjoys a broad and diverse practice. In addition to litigating contract, real estate, business torts, employment and other commercial matters, Mark regularly counsels businesses on matters ranging from risk management and best practices to regulatory compliance and internal investigations.

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