Illinois enacted sweeping employment changes in 2019 that will impact most employers on hot topics, including #MeToo issues, cannabis use, and salary history questions. Some of these laws are already in effect and others will take effect Jan.1, 2020.
These new laws will likely require a review and update to existing policies and procedures at all stages of the employment process, updates to compensation structures for exempt employees, training for sexual harassment and recreational cannabis use, updates to employment and separation agreements, and preparation for mandatory disclosures to the Illinois Department of Human Rights (DHR).
1. The Illinois Workplace Transparency Act and Amendments to the Illinois Human Rights Act (#MeToo Protections)
The Illinois Workplace Transparency Act (WTA), effective Jan. 1, 2020, will make several key changes to Illinois employment law, most notably by broadly limiting non-disclosure provisions in employment, separation agreements, and arbitration agreements; expanding the Illinois Human Rights Act (IHRA); mandating sexual harassment training for all employers; and requiring disclosure of information relating to harassment and discrimination to the DHR.
Under the WTA, unilateral provisions in employment agreements will be void if they prevent an employee from making truthful statements about alleged unlawful employment practices or require that employees arbitrate certain employment claims.
The WTA voids arbitration agreements which are a unilateral condition of employment or continued employment that prevents employees or prospective employees from making truthful statements or disclosures of unlawful employment practices, or requires arbitration of existing or future claims, “to the extent that [the arbitration agreement] denies the employee a substantive or procedural right or remedy.”
Employers are still permitted to negotiate mutual agreements to arbitrate in exchange for additional consideration.
Under the WTA, separation and settlement agreements involving claims of harassment or discrimination must now provide employees 21 days to consider whether to sign the agreement and seven days to revoke after signing.
The IHRA was also amended, effective Jan. 1, 2020, to provide more expansive protections by defining unlawful discrimination to include discrimination on the basis of a person’s “actual or perceived” status as a member of a protected class.
This would now include discrimination or harassment on the basis of “an individual’s actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from the military status, or citizenship status.”
The amendments also expand hostile work environment sexual harassment to include “off-site” locations beyond where employees perform their duties. Further, the IHRA will now cover “nonemployees,” including independent contractors and consultants.
Starting July 1, 2020, employers will also be required to disclose adverse judgments or administrative rulings and also identify the “categories” of harassment and discrimination. Some employers may also have to disclose settlements of harassment and discrimination claims.
Finally, starting in 2020, all employers must provide annual sexual harassment training to their employees. Employers will have the choice of using their own training or using the model training materials provided by the DHR.
2. Changes to Paid Leave for Gender Violence
Beginning on Jan. 1, 2020, the Victims Economic Security and Safety Act (VESSA) will allow employees who are victims of gender violence to take job-protected leave to seek medical attention or seek legal assistance, among other things.
Illinois’ VESSA already allows from eight to 12 weeks of unpaid, job-protected leave to certain employees who are victims of domestic violence, sexual violence, and stalking. Illinois amended VESSA to add a category of protection for victims of “gender violence.”
3. The Illinois Cannabis and Regulation Tax Act
Effective Jan. 1, 2020, the Illinois Cannabis and Regulation Tax Act allows recreational cannabis use for individuals 21 and over. The act’s employment provisions permit employers to enforce reasonable zero tolerance or drug free workplace policies, which means they can still prohibit employees from being under the influence of cannabis in the workplace or while on call.
An employee may be considered to be under the influence of cannabis if the employer “has a good faith belief that an employee manifests specific, articulable symptoms,” as defined under the act. Notably, the employer must provide the employee a reasonable opportunity to contest the determination. The act exempts employers with federal or state contracts or funding.
On Dec. 4, the act was amended to shield employers from liability for “subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.”
This new amendment seemingly allows random and pre-employment drug testing, despite language in the Illinois Right to Privacy in the Workplace Act that prohibits employers from taking adverse action against an employee for using lawful products during off-work hours.
4. Fair Labor Standards Act Regulations Updates
On Sept. 24, 2019, the U.S. Department of Labor updated the Fair Labor Standards Act regulations for the exemptions from overtime pay requirements for executive, administrative, and professional employees.
Under current law, in order to be eligible for the overtime exemptions, an employee must be paid a minimum weekly salary of $455 (or $23,660 per year). Under the updated regulations, an employee must earn a minimum weekly salary of $684 (or $35,568 per year), which may include certain nondiscretionary bonuses and incentive payments.
Critically, the duties tests outlining the types of work an individual must perform in order to be exempt were not changed. The new rules are effective on Jan. 1, 2020.
5. Equal Pay Act Amendments—Salary History Ban
Beginning on Sept. 29, employers are prohibited from:
- screening job applicants based on their salary history by requiring that such applicants satisfy a minimum or maximum compensation criteria;
- requesting or requiring salary history from prospective employees as a condition of being interviewed or considered for employment; and
- otherwise request or require applicants to disclose salary history information as a condition of employment.
The salary history ban further prohibits employers from seeking an applicant’s salary history information from the applicant’s current or former employers.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Abad Lopez is a member at Dykema Gossett PLLC and leads the firm’s labor and employment practice in Chicago. He focuses his practice on representing corporate clients with complex employment matters. He represents employers in matters arising under federal and state anti-discrimination laws, the Fair Labor Standards Act, the FMLA, labor management relations laws, and state law wrongful discharge claims.
Melanie Chico is a member at Dykema Gossett PLLC in Chicago. She concentrates her practice on complex business and commercial litigation matters, using her industry knowledge to tailor litigation strategies that resolve disputes with minimal impact on business operations and the bottom line. She has successfully litigated cases involving breach of contract, business torts, construction defects, fraud, employment discrimination, restrictive covenants, antitrust, intellectual property, and class action defense.