Illinois Employment Law Update 2020
The following is a summary of new employment laws that will take effect as of January 1, 2020. Illinois employers should take notice of these new employment laws affecting their workplaces.
IHRA coverage and protected classes expanded
The definition of "employer" under the Illinois Human Rights Act ("IHRA") expands from any Illinois employer with at least 15 employees to those with one or more employees. The definition of "protected class" will also expand to include "perceived" protected classes (e.g., presuming an employee is of a certain race or national origin due to the employee's affiliations even if such presumption turns out to be inaccurate). Also, for the first time, the rights of non-employees in the workplace (e.g., contractors, consultants, vendors, etc.) will be protected under the IHRA.
Mandatory annual sexual harassment training and Spanish-language harassment policies
Under the IHRA, all Illinois employers will be required to conduct sexual harassment training for all employees at least once a year. Failure to conduct such training could result in penalties for employers of up to $5,000.00 per infraction, per year. Until now, annual training was considered a best practice by employment law practitioners and a necessary component for successful invocation of the Faragher-Ellerth affirmative defense in harassment cases. With the amendment to the IHRA, however, all Illinois employers will be required to conduct annual sexual harassment training. Pedersen & Houpt can provide your employees with live in-house training compliant with this new requirement.
In the hospitality industry (e.g., restaurants, bars, etc.), a written anti-sexual harassment policy must be in both English and Spanish and provided to all employees within the first calendar week of employment. The policy must include a prohibition on, and definition of, sexual harassment, how an employee can report sexual harassment (both to the employer and the government), a requirement for training, and a prohibition on retaliation for reporting sexual harassment.
Mandatory annual self-reporting on adverse decisions to IDHR
Effective July 1, 2020, Illinois employers will need to self-report to the Illinois Department of Human Rights ("IDHR") on an annual basis, the total number of adverse judgments or administrative rulings related to sexual harassment or unlawful discrimination in the prior calendar year, details regarding each including the protected class involved and any equitable relief ordered against the employer. While the specifics of such reports will be treated confidentially and not subject to any Freedom of Information Act ("FOIA") requests, the IDHR will aggregate the data received from all Illinois employers for purposes of publishing an annual report, without disclosing any employer's individual information to the public.
Revisiting workplace policies post-legalization of recreational cannabis
The Illinois Cannabis Regulation and Tax Act ("ICRTA") allows for the recreational use of marijuana, although an employer may still prohibit the use and storage of cannabis in the workplace. In other words, an employer still has an absolute right to maintain a zero tolerance policy with respect to drugs and can take disciplinary action against an employee for violating policy if the employer holds a "good faith belief" that the employee is impaired or under the influence of marijuana at work or while performing job duties or on call. While the Act allows for an employer to act upon a "good faith belief" that an employee is impaired based upon cannabis use, the employer must afford the employee a "reasonable opportunity" to contest the basis for that decision. And importantly, an employer may not discipline an employee for off-duty cannabis use (provided it does not impair their work). While employers may maintain reasonable policies for drug testing, they may want to reconsider utilizing pre-employment drug screening as well as random drug testing for cannabis in light of the "good faith belief" standard imposed by the ICRTA. It is also advisable for employers to train their supervisors to notice signs of cannabis use and establish a procedure for both alleging and challenging cannabis impairment. It is also important to note that recreational cannabis continues to be prohibited under federal law, so it is particularly important for Illinois employers with federal contracts and Department of Transportation regulated Illinois employers to ensure they remain in compliance.
Revising agreements with the passage of the Workplace Transparency Act
The Workplace Transparency Act (“WTA”) goes into effect on January 1, 2020, with the intended goal of preventing unlawful discrimination and harassment in the workplace. The WTA will prohibit any agreement that restricts an employee from reporting unlawful conduct to government officials or testifying about alleged criminal conduct or unlawful employment practices. The WTA will also limit the use of arbitration clauses by prohibiting language which requires an employee to waive or arbitrate any existing or future claim related to an unlawful employment practice. The WTA will further limit the use of confidentiality provisions within settlement or severance agreements unless a number of factors are first met, including mutuality, written notice of an attorney review option, bargained-for consideration, no waiver of future claims for unlawful conduct and consideration and revocation periods of 21 and 7 days, respectively. The last two provisions are especially critical as the Age Discrimination in Employment Act (ADEA), as amended by the Older Worker Benefit Protection Act (OWBPA), only required employers to provide such consideration and revocation periods for employees age 40 and over. The WTA will require employers who wish to utilize confidentiality provisions within settlement agreements to afford employees of all ages with a total of 28 days to first consider whether to enter the agreement and then whether to revoke their acceptance of the terms.
New penalties and expanded coverage for improper payroll recordkeeping
The year 2020 will bring new changes to the Illinois Minimum Wage Law ("IMWL") largely with regards to its record-keeping provisions. Previously, the IMWL did not have any financial penalties for a failure to keep the required payroll records. These include the basic information of the employee (name, address, etc.) and their work history (hours per week, rate of pay, deductions, etc.). For the first time, employers that do not maintain payroll records will be required to pay a penalty of $100.00 for each applicable employee per infraction. Employers will also be required to keep records of the hours worked in each day and week by each employee. Notably, the IMWL does not create an exception to the record-keeping requirement for exempt employees even though they are paid a salary irrespective of hours worked. Employers should review their payroll records to ensure accurate timekeeping for exempt employees as a boilerplate 40 hours per workweek will not suffice. The Illinois Department of Labor is increasing enforcement through random audits, largely aimed at uncovering misclassification cases.
If you have questions related to coverage or implementing these 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 firstname.lastname@example.org.