With 2019 officially underway, now is a prudent time for employers to review their personnel policies and practices, as well as to ensure they are compliant with many new laws. This article highlights some of the new laws and regulations passed or recently proposed of which all Illinois employers must be aware. And, with the new administration in Springfield, we expect continued activity in this regard for employers throughout the state.
1. Employees Now Have Longer Time To File State Law Discrimination Charges.
As of June 2018, the Illinois Human Rights Act ("IHRA") was amended to extend the time that an employee can file a charge of discrimination with the Illinois Department of Human Rights ("IDHR") to 300 days from the alleged civil rights violation. Previously, the time an employee could file a charge of discrimination was only 180 days. This amendment ensures that employees in Illinois have the same time frame to file a charge of discrimination under federal law with the EEOC as a charge of discrimination under state law before the IDHR.
2. Employees Can Now Opt Out of IDHR Investigations.
Employees in Illinois can now opt out of the IDHR investigation process for state law charges of discrimination. Previously, an employee who filed a charge had to wait to request a "right to sue" letter until the IDHR determined that it would not be able to complete its investigation within 365 days. Even then, an IDHR investigator could deny the request and force the employee to proceed with the full investigatory process. Now, the IDHR must advise a complainant of his or her right to opt out of the process within 10 business days of the charge of discrimination being filed, and the complainant then has 60 days thereafter to opt out of the investigatory process. Given the sometimes lengthy investigative process at the IDHR (and what we have observed as frequent requests by investigators to extend the time to complete their investigation), we anticipate this new amendment will significantly increase the number of complainants who opt out of the IDHR investigative process and file their discrimination claims in state court.
3. The IHRA Now Has Additional Posting Requirements
In what should not come as too much of a surprise to Illinois employers, recent amendments to the IHRA now require that all employers in Illinois, regardless of size, post the state's Sexual Harassment and Discrimination poster in a conspicuous location on the employer's premises. This can be placed with the laundry list of other state and federally-required labor law posters. Employers must also include similar information in any employee handbook, provided they maintain a handbook. At a minimum, Illinois employers who have existing sexual or other unlawful harassment policies should ensure their policy complies with the mandates now outlined under the IHRA.
4. Paid Nursing Breaks Are Now Required.
An amendment to the Illinois Nursing Mothers in the Workplace Act in 2018 requires employers to provide reasonable paid breaks each time an employee needs to express breast milk for her nursing child (for up to a year after child birth). Previously, the Act only mandated reasonable unpaid breaks. Now, the law specifically states that "an employer may not reduce an employee's compensation for time used for the purpose of expressing milk or nursing a baby." However, nursing break time may run concurrently with any breaks that are already provided. So, for example, if you already offer an unpaid 30 minute lunch break, you can continue to treat the lunch break as unpaid, even if an employee uses the time to express milk.
5. Illinois Employers Must Comply With The Illinois Service Member Employment and Reemployment Rights Act.
Illinois has consolidated its patchwork of military leave laws into one comprehensive statute that took effect beginning on January 1, 2019. The Illinois Service Member Employment and Reemployment Rights Act ("ISERRA") includes many of the protections already offered under federal law. However, ISERRA goes even farther by allowing service members to include a period during which they 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. Additionally, a service member who is on ISERRA leave must be credited with the average of his or her performance ratings over the prior three years. Moreover, the average rating cannot be less than the rating that he or she received immediately prior to the military leave. Likewise, in computing seniority, the period of military leave must be counted. ISERRA also requires employers to post a notice of employees’ rights, which can be downloaded from the Illinois Attorney General’s website. ISERRA authorizes the recovery actual damages, attorneys' fees, and up to $50,000 in punitive damages to a prevailing plaintiff. Although, failure to post the required notice cannot form the sole basis of an employee's lawsuit under ISERRA.
6. Employee Expenses Must Be Reimbursed Pursuant to the Illinois Wage Payment and Collection Act.
Under amendments to the Illinois Wage Payment and Collection Act ("IWPCA"), Illinois employers are now legally obligated to reimburse employees for most work expenses. Employers must reimburse all reasonable and necessary expenses that fall within the employee’s scope of employment, directly relate to services performed for the employer, are required of the employee in the discharge of his or her duties, and inure to the primary benefit of the employer. Employees have 30 days after incurring the expense to submit supporting documentation, but if the employee has misplaced the supporting documentation, he or she can instead submit a signed statement confirming the expense. For additional details on this new obligation, please see our prior post available here.
7. Illinois Equal Pay Act Has Been Expanded to Include African-Americans.
Effective January 1, 2019, the Illinois Equal Pay Act ("IEPA"), which prohibits pay disparities between male and female employees that perform similar work, will also prohibit wage discrimination between African American and non-African American employees. Although former Governor Bruce Rauner vetoed the bill, the Illinois legislature overwhelmingly voted to override his veto before he left office.
8. Don’t Forget About Local Minimum Wage Increases in 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 (outside of Chicago) will increase from $11 to $12 per hour. For restaurants, bars and other tip generating employers, this will necessarily affect the maximum tip credit that some employers may be able to take.
9. State-Wide Minimum Wage Almost Certain to Increase.
On February 7, 2019, the Illinois Senate passed a bill that would increase the state-wide minimum wage to $15 by 2025. The bill, which passed 39-18 along party lines, now moves over to the Democrat-controlled House, where it is expected to pass as well. Newly elected governor, J.B. Pritzker, supported a $15 minimum wage on the campaign trail, indicating that the bill will likely become law in short order. Illinois’ minimum wage has sat at $8.25 per hour since it was last raised in 2011. The Illinois General Assembly previously tried to pass a statewide minimum wage increase to $15 by 2022, but former Gov. Rauner vetoed it. Assuming the bill is enacted, it could eliminate the patchwork of minimum wage obligations in Chicago and various portions of Cook County, Illinois.
10. New Bill Would Further Expand the Illinois Human Rights Act.
On January 9, 2019, Representative Will Guzzardi introduced House Bill 252, which would expand the IHRA to apply to all employers in Illinois who employ at least one (1) person during 20 or more calendar weeks within the preceding calendar year. If passed, the bill would mark a significant increase in coverage. Similarly to most federal anti-discrimination laws, the IHRA currently only applies to employers with 15 or more employees (unless a claim of sexual harassment, disability discrimination, pregnancy discrimination or retaliation is involved). The bill was referred to the state legislature’s Rules Committee, so stay tuned for further developments in this regard.
As you can see, 2019 is shaping up to be an impactful year for Illinois employers with additional laws and compliance obligations. Should you have any questions or if you would like to discuss how these changes will impact your company, please contact your regular Saul Ewing LLP labor and employment attorney.