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Illinois Employment Law Update 2019

December 2018
Naureen Amjad


The following is a summary of new employment laws that have recently taken effect or will take effect as of January 1, 2019.  Illinois employers should take notice of these new employment laws affecting their workplaces.

Required Business Expense Reimbursement - The Illinois Wage Payment and Collection Act (Wage Act) was amended to require employers to reimburse all 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."  820 ILCS 115/9.5.  Employers are not required to reimburse employees for expenses that result due to (1) an employee's own negligence, (2) normal wear or (3) theft, unless as a result of the employer's negligence.  While this amendment may come as a surprise to many employers who believe that expense reimbursement was always a requirement for Illinois employers, this was not the case.  With the passage of the Wage Act amendment, Illinois becomes only the ninth state to statutorily impose expense reimbursement on employers, joining California, the District of Columbia, Iowa, Massachusetts, Montana, New Hampshire, North Dakota and South Dakota.  Employers are encouraged to adopt a business expense reimbursement policy within their handbooks which clearly sets forth categories of authorized expenses, the method by which to request an expense reimbursement including necessary receipts and other source documents supporting the particular expense, and caps on reimbursable expenses.  The reason behind this is that courts will look to employers' established policies on expense reimbursement and whether employees were apprised of such policies when faced with enforcement of such policies.  Employers must allow employees at least 30 days to submit requests for reimbursement, but may set a maximum amount of time after which requests will not be processed. 

Equal Pay Protection Expanded to African-American Employees - The Illinois Equal Pay Act of 2003 (Equal Pay Act) was amended to now prohibit pay discrimination against African Americans who perform "the same or substantially similar work" as their non-African-American co-workers.  The Equal Pay Act may subsequently be expanded to prohibit pay discrimination against employees of other races and other protected classes, but there has been no discussion of such an amendment at this time.  Until now, legislative efforts have been focused solely on eliminating pay disparities between men and women performing the same or similar work in the same workplace.

New Chicago Employment Enforcement Agency - As of January 1, 2019, the Office of Labor Standards (OLS) will be responsible for enforcing the City of Chicago's employment ordinances.  Such ordinances apply to the majority of employers who maintain a business facility within the City of Chicago or are required to maintain a business license to operate within the City.  OLS is a new agency created for the purpose of investigating employee complaints pursuant to the City's minimum wage, paid sick leave and anti-wage theft (i.e., failure to pay overtime or requiring off-the-clock work) laws or ordinances.  Until now, the City of Chicago's Department of Business Affairs and Consumer Protection had been responsible for investigating employee complaints, but the Department did not have the resources to handle ordinance violations. The City of Chicago paid sick leave ordinance went into effect on July 1, 2017.  Due to administrative complexities in implementing the ordinance (i.e., keeping track of each employee's earned paid sick leave and carry over time for regular versus FMLA-covered employers), many Chicago employers have had difficulty with adopting the ordinance in a timely fashion.  With the advent of the OLS, employers may see an increase in employee complaints regarding miscalculation or general violations of the Chicago paid sick leave ordinance.  OLS intends to issue an annual report listing employers cited for violations, the amount of back wages or paid sick leave recovered and other such data.  Employers found to be in violation by the OLS will be barred from bidding for City contracts for a year.

Opting Out of the IDHR's Administrative Investigative Process - The Illinois Human Rights Act (IHRA) was amended in August 2018 to allow a complainant who files a charge under the IHRA to opt-out of the administrative investigation process and file a complaint directly in Illinois state court.  To do so, the employee is required to send a notice of intent to opt-out to the Illinois Department of Human Rights (IDHR) within 10 days of filing a charge.  After such time, the complainant has 90 days to file suit in state court.  This amendment to the IHRA mirrors the right-to-sue process followed by the Equal Employment Opportunity Commission (EEOC) where a complainant filing a charge may opt-out of the federal agency's investigative process and after receiving a notice of right to sue, has 90 days to file a lawsuit directly in federal court.

Required Paid Breaks for Nursing Mothers - A recent amendment to the Illinois Nursing Mothers in the Workplace Act (INMWA), which applies to Illinois employers with more than five employees, now requires employers to provide paid breaks to employees needing to nurse or express milk during work hours.  The INMWA previously required Illinois employers to provide reasonable unpaid break time for the same purpose.  The paid breaks must be provided for at least one year after the child's birth and the amount of time provided at each desired break must be reasonable, although the term is not defined by the INMWA.  While breaks for this purpose may run concurrently with any breaks the employer already offers, if additional breaks are requested for the purpose of nursing or expressing, the employer must permit them and cannot deduct an employee's pay for such time.  To be safe and until the term "reasonable" is defined by the INMWA, employers should approve whatever amount of break time is requested by a given employee for the purpose of nursing or expressing, as such time may vary amongst employees.  Employers wishing to be exempt from providing paid breaks for nursing or expressing must meet the demanding standard of showing an "undue hardship," borrowed from the Americans with Disabilities Act and the IHRA. 

If you have questions related to coverage or implementing these amended employment laws at your workplace, please contact Naureen Amjad, a Partner and the Leader of Pedersen & Houpt's Employment Law Practice Group, at 312.261.2273 or at namjad@pedersenhoupt.com.