July 2021 Illinois HR Legal Updates

Illinois Increases Wage and Hour Violation Penalties

Update Applicable to:
All employers in Illinois.

What happened?
On July 9, 2021, Governor J. B. Pritzker signed House Bill 0118 (HB0118) into law.

What are the details?
The bill, effective immediately, amends the Illinois Wage Payment and Collection Act to increase the penalty for underpaying wages from the original 2% per month to 5% per month.

The law amending the act is read here.

An article on the amendment is read here.

What do employers need to do?
No action is required for employers other than being aware of the update in penalty amount.

July 2021: Chicago Implements New Wage Theft Protections and Amends Paid Sick Leave with Ordinance

Update Applicable to:
Employers in Chicago.

What happened?
On June 25, 2021, Chicago City Council passed Ordinance No. O201-2182 into law.

What are the details?
The ordinance, effective August 1, 2021, establishes wage theft protections for employees as well as, modifying and expanding several reasons that are covered for the use of Chicago Paid Sick Leave (CPSL).

An employer is now liable for wage theft when they fail to timely pay a covered employee. It includes non-payment of any wages required for work performed and paid time off (including Chicago paid sick leave (CPSL)) and any contractually required benefits.

The employers may be held liable for any underpayments and damages of either:

  • 2% of the amount of any underpayments for each month following the date of payment during which such underpayments remain unpaid; or
  • the amount specified by the Illinois Wage Payment and Collection Act, if the amount in the state law is greater.

Employers should be aware that these penalties are in addition to penalties for any failure to comply with the CPSL obligations as well.

The ordinance lists several new and modified reasons that are covered under the CPSL. Some of the included modified or new reasons are as follows:

  • Modified Reason. The employee is ill or injured, or for the purpose of receiving processional care, including preventive care, diagnosis, or treatment, for medical, mental, or behavioral issues, including substance abuse disorders.
  • Modified Reason. The employee needs to care for a family member whose school, class, or place of care has been closed
  • New Reason. An employee obeys an order issued by the mayor, the governor of Illinois, the Chicago Department of Public Health, or a treating healthcare provider, requiring the employee: to stay at home to minimize the transmission of a communicable disease, to remain at home while experiencing symptoms or sick with a communicable disease, to obey a quarantine order issued to the employee, or to obey an isolation order issued to the employee.

The CPSL ordinance requires a workplace posting and indicates the posting must also address the employee’s ability to seek remedy for wage theft. Employers are required to distribute a new notice to their employees by the end of July. With the first paycheck issued to a Covered Employee, and annually with a paycheck issued within 30 days of July 1st, every Employer shall provide a notice advising the Covered Employee of the current minimum Wages under this chapter, the Covered Employee’s right to Paid Sick Leave, and information about human trafficking and resources to help combat it. The Commissioner has prepared the required notice that can be found here.

The ordinance can be read here.

An article on the ordinance is found here.

What do employers need to do?
Employers should review the Ordinance and information above to ensure they follow the obligations to stay in compliance with wage payments and CPSL. The law firm, Littler Mendelson P.C., recommends employers revisit their paid sick leave policies in Chicago to ensure compliance with these new requirements. Employers will need to distribute the notice mentioned above by the end of the month to their employees.

June 2021 Illinois HR Legal Updates

Cook County Suspends Minimum Wage Hike

Update Applicable to:
Employers operating in the unincorporated areas of Cook County.

What happened?
Officials in Cook County have postponed the originally planned minimum wage increase that would have gone into effect July 1, 2021.

What are the details?
In response to the high unemployment level inside Cook County, officials have suspended this year’s minimum wage increase, per the Minimum Wage Ordinance. For the minimum wage increase to be suspended the unemployment rate needs to be higher than 8.5%, which was met in the previous year.

The official announcement may be found here.

What do employers need to do?
Employers will not need to take any action in response to this update.

May 2021 Illinois HR Legal Updates

Illinois Expands Paid Sick Leave Requirements

Update Applicable to:
All Illinois employers who offer paid sick leave benefits.  

What happened?
On April 27, 2021, Illinois Governor Pritzker signed House Bill 158 (HB 158), which amends the Employee Sick Leave Act (ESLA) to cover leave for a family member’s “personal care.”

What are the details?
The bill adds that employees may now use their accrued sick leave benefits for the use of covering a family member’s “personal care.” Personal care is defined to include: activities to ensure that the family member’s basic medical, hygiene, nutritional, or safety needs are met, or to provide transportation to medical appointments, for a family member who is unable to meet own needs, being physically present to provide emotional support to family members with a serious health condition who is receiving inpatient or home care.

Employers should remember that while Illinois does not require employers to provide paid sick leave, outside of Cook County and Chicago, it does place restrictions on how employers may treat employees who use a sick leave policy. For example, employers may restrict the amount of time employees may use the leave for family member care up to the amount of sick leave that would be earned or accrued during six months of the employee’s then-current rate of entitlement.

HB 158 can be found here.

An article going over these changes can be found here. 

What do employers need to do?
Illinois employers should review and update their leave policies to include the newly added definitions for acceptable usage of leave.

April 2021 Illinois HR Legal Updates

Illinois Passes Additional Criminal History Regulations

Update Applicable to:
Employers hiring workers within the State of Illinois.

What happened?
Illinois Governor Pritzker signed a bill into law on March 23, 2021, prohibiting employers from taking adverse employment actions based on workers’ criminal records, unless certain exceptions apply. The law amends the Illinois Human Rights Act.

What are the details?
An employer may use a conviction record as the basis for an adverse employment action if it determines that a relationship between the offense and the job exists or if the offense poses a safety risk. The employer must perform an individualized assessment and consider several factors including the length of time since the conviction, the nature and severity of the crime, and the age of the person at the time of conviction. The law also requires Illinois employers to notify an affected individual if a criminal conviction is a reason for disqualification. It obligates employers to provide the applicant or employee with a copy of the criminal history report and give the person five days to respond.

An article providing an in-depth look at the new regulations can be found here.

The Public Act can be read here.

What do employers need to do?
Illinois employers likely will need to update their hiring practices to accommodate these changes. 

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Chicago Passes Vaccination Time Off Ordinance

Update Applicable to:
Employers operating within the City of Chicago.

What happened?
On April 21, 2021, the Chicago City Council passed an ordinance, effective immediately, prohibiting adverse action against all Chicago workers—including independent contractors—who take time off from work to receive a COVID-19 vaccine.

What are the details?
The ordinance also prohibits employers from requiring that a worker get a COVID-19 vaccine outside of work hours.

Vaccination time off does not necessarily need to be paid. Employers that do not require vaccination must provide unpaid vaccination time off and must permit (but not mandate) a worker to use accrued or otherwise available paid sick leave or paid time off to cover the absence. (Note that this may include any paid sick leave a worker may earn and have available under the Chicago Paid Sick Leave Ordinance).

If, however, the employer requires vaccination, the worker must be provided up to four hours of paid vaccination time off per injection. Under these circumstances, paid vaccination time off must be compensated at the worker’s FLSA regular rate of pay, which is normally only used when calculating the overtime rate for non-exempt employees. In order to be eligible for the time off with pay, the vaccination appointment must occur during a scheduled work shift. Workers cannot be required to use paid time off or paid sick leave to cover the hours missed for the appointment.

An article providing additional details can be found here.

The ordinance may be downloaded for viewing by clicking here.

What do employers need to do?
Chicago employers should update their leave policies to reflect the new vaccination leave requirements.

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Illinois Creates New Wage Data Requirements

Update Applicable to:
Any private employers with more than 100 employees in Illinois.

What happened?
On March 23, 2021, Illinois amended the state’s Equal Pay Act of 2003 to include additional reporting requirements targeted at identifying gender and racial pay disparities.

What are the details?
Eligible employers in Illinois must obtain an “equal pay registration certificate” from the Illinois Department of Labor. Employers must obtain this certificate within three years of the amendment’s effective date—i.e., by March 23, 2024—and then every two years thereafter.

To apply for this certificate, the employer must submit a $150 filing fee, the employer’s most recent EEO-1 report, and a report of all employees from the past calendar year “separated by gender and the race and ethnicity categories as reported in the business’s most recently filed Employer Information Report EEO-1, and report the total wages . . . paid to each employee during the past calendar year.”

The employer must also submit an “equal wage compliance statement,” signed by a corporate officer, legal counsel, or authorized agent, stating:

  • The employer is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Illinois Human Rights Act, the Illinois Equal Wage Act, and the Illinois Equal Pay Act of 2003;
  • Average compensation for female and minority employees “is not consistently below the average compensation, as determined by rule by the United States Department of Labor, for its male and non-minority employees within each of the major job categories” in the employer’s EEO-1 report, after taking into account “factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, or other mitigating factors”;
  • Employees are not restricted to particular job classifications based on sex, nor are retention and promotion decisions made concerning sex;
  • The employer corrects any wage and benefit disparities as they are identified;
  • How often the employer evaluates wages and benefits to ensure compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Illinois Human Rights Act, the Illinois Equal Wage Act, and the Illinois Equal Pay Act of 2003; and
  • The method used by the employer in setting compensation and benefits: market pricing, prevailing wage or union contract requirements, performance pay, internal analysis, or an alternative approach that the employer must then describe.
  • After the application is submitted, the employer will receive the certificate, or an explanation for the rejection of the application, within 45 days.

An application may only be rejected for failing to submit the required information and compliance statement, but that does not mean the new amendment is toothless. The amendment gives the Director of Labor the authority to audit an employer’s compliance with the reporting requirements, including the accuracy of the information disclosed, and to revoke a certificate upon a finding that the employer has failed to make a good-faith effort to comply with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Illinois Human Rights Act, the Illinois Equal Wage Act, or the Illinois Equal Pay Act of 2003, or has multiple violations of those acts.

An article providing additional details can be found here.

The legislation can be found here.

What do employers need to do?
Illinois employers should be aware of the need to update their payroll practices to stay in compliance with that and other applicable acts. Employers have up to three years to come into compliance and to create a process to accommodate the reporting requirements.

October 2020 Illinois HR Legal Updates

Illinois Requires All Employers to Provide Sexual Harassment Prevention Training

What happened?
Effective this year, the Illinois Human Rights Act (IHRA) requires that all Illinois employers, regardless of size, provide annual sexual harassment prevention training to all employees. Employers must also report negative outcome cases involving unlawful discrimination, harassment, and/or retaliation.

What are the details?
With a lack of guidance related to COVID-19, employers must assume the rules created by the IHRA will continue as planned. All Illinois employers will need to provide annual sexual harassment prevention training to all employees by December 31, 2020. The training must contain the following subject matter:

  • An explanation of sexual harassment consistent with the IHRA;
  • Examples of unlawful conduct that constitutes sexual harassment;
  • A summary of federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of the employer’s responsibilities for the prevention, investigation, and corrective measures of sexual harassment.

Additionally, employers must, by October 31, 2020, report and adverse judgements or administrative rulings involving unlawful discrimination, harassment, and/or retaliation, to the Illinois Department of Human Rights (IDHR). The report will encompass cases from January 1, 2019 to December 31, 2019. Employers are not required to report settlements. The IDHR may, however, request a report showing the number of settlements in the preceding five years, or less. Information reported to the IDHR must not include the names of the alleged victims of harassment or discrimination. Employers will need to send in another report by July 1, 2021, to encompass information from January 1, 2020 through December 31, 2020.

An article covering the IDHR rules can be found here.

What do employers need to do?
Employers should provide training on the relevant topics to their employees before December 31, 2020 and submit the required report, mentioned above, by October 31, 2020.

July 2020 Illinois HR Legal Updates

Chicago, Cook County, and Illinois Pass New COVID-19–Related Regulations and Restrictions

What happened?
The City of Chicago, Cook County, and Illinois have all passed new guidance and regulations regarding COVID-19.

What are the details?
Statewide

The Governor of Illinois, J.B. Pritzker, has announced changes to the re-opening strategy of the state. By breaking up the state into 11 distinct “health regions,” each region will be assigned its own mitigation strategies based on two criteria.

  1. If the health region has experienced three consecutive days averaging greater than or equal to an 8% increase in positivity rate.
  2. A sustained increase in positivity rate over a seven-day rolling average and either:
    1. Sustained seven-day increases in hospital admissions for COVID-19–like illnesses
    1. A reduction in hospital capacity threatening surge capabilities.

If health regions meet these two criteria, they will be subject to new regulations that scale in how severe they are based on how poorly the health region is doing based on the two criteria listed above.

The full update can be found here.

Cook County

Cook County Department of Public Health has issued travel guidance that now advises certain visitors to quarantine for two weeks upon arrival. If the person is coming in from one of their listed states, they will

be advised to adhere to quarantine protocols. This is not a requirement; however, the City of Chicago has passed similar restrictions that are requirements.

The full list of the county provided can be found here.

City of Chicago

The City of Chicago’s Department of Public Health has released an Emergency Travel Order requiring anyone coming from a state with more than an average of 15 new cases per 100,000 residents to quarantine for 14 days upon arrival. The order does not apply to essential workers. Essential workers are those identified by the Cybersecurity and Infrastructure Security Agency. Essential workers will not need to quarantine if they:

  1. Are a non-resident of Chicago and are traveling from a designated state to Chicago for the primary purpose of carrying out their primary work in Chicago and need to be physically present in Chicago to carry out that primary work; or
  2. Are a resident of Chicago and are returning from a designates state, were in the designated state for the primary purpose of carrying out their primary work in that state and needed to by physically present in that state to carry out that primary work.

The list of critical infrastructure sectors can be found here.

The original Emergency Travel Order can be found here.

What do employers need to do?
Employers in Illinois should be mindful of the travel restrictions. Employers within Cook County and the City of Chicago should let employees know about the new travel restrictions to prevent them from visiting a restricted state.

June 2020 Illinois HR Legal Updates

Chicago Enacts COVID-19 Anti-Retaliation Measures

What happened?
On May 20, 2020, a new ordinance was signed into law increasing protections for employees who are impacted directly or indirectly by COVID-19.

What are the details?
The ordinance creates new protections for “Covered Employees,” who are following orders issued by the mayor of the City of Chicago. These protections include prohibiting the demotion and termination of these “Covered Employees.” A “Covered Employee” is defined generally as, an employee who, in any two-week period, performs at least two hours of work for an employer while physically present within the geographic boundaries of the City of Chicago. Covered employees may be following any of the following orders:

  • Staying at home to minimize the transmission of COVID-19
    • Remaining at home while experiencing COVID-19 symptoms or while sick with COVID-19
    • A quarantine order issued to the Covered Employee
    • An isolation order issued to the Covered Employee
    • An order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities

These protections extend to a covered employee who is caring for an individual who is following the first three of the listed orders. Additionally, as of July 1, 2020, outside salespersons and some students will be considered Covered Employees as well.

The ordinance also creates new ways for the City of Chicago to enforce these protections. An administrative of court action can be brought against employers who are noncompliant with the law. Even if the City itself does not pursue the employer, employees will be able to bring the case forward in court as well. Employers who are noncompliant have a 30-day period after they have been notified of a violation to fix the behavior without being liable for damages. Otherwise, the employees will be able to seek the following damages:

  1. Reinstatement to the same or equivalent position
  2. Monetary damages equal to three times the lost wages
  3. Actual damages
  4. Attorney fees and costs

For a more detailed breakdown of the ordinance: Read Here

What do employers need to do?
Employers in Chicago should immediately update their workplace policies to prevent any violations of the Covered Employee’s protections. Should it become necessary to terminate a Covered Employee the employer needs to be able to provide documentation to show its necessity.

Summary of State Laws (Q1 & Q2 2020)

Sexual Harassment Training
The Illinois Department of Human Rights has provided clarity on sexual harassment training requirements in the guidance issued on January 31, 2020. The guidance includes clarifications, such as:

  • Employers must train all employees in Illinois, including short-term and part-time employees and interns.
  • Employers are not required to train independent contractors but are strongly advised to train independent contractors who work on-site at the employer’s workplace or interact with the employer’s staff.
  • Employees who perform work or regularly interact with the employer’s employees in Illinois should be trained, even if they are based in another state.

Human Trafficking Training for Lodging Establishments
Effective June 1, 2020, hotels, motels, and casino hotels must provide certain employees with training on the recognition of human trafficking and protocols for reporting observed human trafficking to the appropriate authorities. An employer may develop its own training program or use that of a third party that includes the minimum requirements. In addition, the Department of Human Services is expected to develop a training program for use by employers by July 1, 2020.

School Activities Leave
Effective August 1, 2020, Illinois’ School Visitation Rights Act (SVRA) is amended to cover behavioral meetings or academic meetings (previously classroom activities) and prohibit employers from terminating an employee because of an absence that is due solely to a reason protected by the SVRA.

Chicago Paid Sick Leave
Effective July 1, 2020, Chicago’s Paid Sick Leave Ordinance applies to all employers with at least one covered employee, regardless of whether the employer maintains a business facility in Chicago or is subject to any Chicago business license requirements (as previously required). In addition, individuals excluded from coverage include outside salespersons, members of a religious corporation or organization, certain students, motor carriers, and certain camp counselors.

Chicago Predictive Scheduling
Effective July 1, 2020, the Chicago Fair Workweek Ordinance requires certain employers in building services, healthcare (effective January 1, 2021, for safety-net hospitals), hotels, manufacturing, restaurants, retail, and warehouse services to provide covered employees at least 10 days’ notice of their work schedules and predictability pay for certain changes to the schedule.

For additional information regarding this Chicago ordinance, please refer to this firm’s legal update. Please note that recent amendments to this ordinance allow for certain exceptions during a pandemic (including the COVID-19 pandemic).

May 2020 Illinois Legal HR Update

Sexual Harassment Training

What happened?
The Illinois Workplace Transparency Act requires employers to conduct sexual harassment training.

What are the details?
The Illinois Department of Human Rights released a model training with editable PowerPoint slides.

What do employers need to do?
Review the training and ensure training minimally meets these requirements.

Resources
https://www.fordharrison.com/illinois-model-sexual-harassment-training-best-practices-for- implementation; https://www2.illinois.gov/dhr/Training/pages/default.aspx