Illinois Rings in the New Year With New Employment Laws

As we prepare to welcome 2019, Illinois employers must also prepare for new employment laws that afford greater rights and protections to employees. Below is a summary of new laws affecting the employment landscape in Illinois that employers may want to keep in mind as they head into the new year.

Paid Breaks for Nursing Mothers

On August 21, 2018, Illinois amended the Nursing Mothers in the Workplace Act, expanding the rights of employees needing to express milk in the workplace. Previously, the Act required that breaks for expressing milk “must, if possible” run concurrently with other employer-provided breaks. With the 2018 amendments, breaks for expressing milk “may” coincide with other break times, but employers must also provide “reasonable break time . . . each time the employee has the need to express milk.” Under the amendments, employers must provide such breaks for up to one year after the child’s birth (there was no temporal limitation in the prior version of the Act).

The amendments also changed how employees must be compensated when taking breaks to express milk. Previously, employers were required to provide nursing mothers with unpaid breaks only. The Act now prohibits employers from reducing “an employee’s compensation for the time used for the purpose of expressing milk.” Although this language does not require employers to pay employees who express milk during a regularly scheduled unpaid break, employers must now pay employees for any additional breaks taken for that purpose.

Prior to the August 21, 2018, effective date of the amendments, employers could have avoided the Act’s requirements if they were able to show that providing break time would “unduly disrupt the employer’s operations.” Employers now must satisfy the higher burden of showing an “undue hardship,” as defined by the Illinois Human Rights Act (IHRA), which requires that the employer prove that providing additional breaks would be prohibitively expensive or disruptive given the employer’s size, financial resources, and operation, among other factors.

Illinois Human Rights Act Amendments

In June and August of 2018, the Illinois General Assembly passed amendments to the IHRA that broaden employee rights and impose new, immediate notice requirements on employers. The laws, which took effect upon their enactment, include the following key changes:

• The time frame for filing a charge of discrimination with the Illinois Department of Human Rights (IDHR) has been extended from 180 to 300 days, mirroring the time allotted for employees to file with the Equal Employment Opportunity Commission (EEOC).
• Complainants can now opt out of the IDHR’s investigation process and proceed directly to state court.
• Employers must post the new notice provided by the IDHR, which includes specific information about employees’ rights to be free from sexual harassment. They must also include the same content covered in the notice in their employee handbooks. A copy of the notice can be found here.

See our previous article for more information regarding the IHRA amendments and their impact on employers.

Employee Expense Reimbursement

On August 26, 2018, the Illinois General Assembly amended the Wage Payment and Collection Act (IWPCA) to mandate that employers reimburse employees for all expenses incurred within the scope of their employment that are “directly related to services performed for [their] employer[s].” The IWPCA defines “necessary expenditures” as “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” The new law, which will become effective on January 1, 2019, allows employers to establish written policies specifying the amounts and requirements for any such expenses. Employers will not be required to reimburse expenses for employees who fail to comply with these written policies. See our previous article for additional information on the new law.

Expanded Job Protections for Military Service Members

Effective January 1, 2019, the rights of Illinois employees serving in the military will be governed by the Illinois Service Member Employment and Reemployment Rights Act (ISERRA). While much of ISERRA is modeled after the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Illinois statute provides additional protections beyond USERRA, including the following:

• An expanded definition of “military service.” ISERRA expands USERRA’s definition of “military service” to include (1) service in a federally recognized auxiliary of the United States Armed Forces when performing official duties in support of military or civilian authorities as the result of an emergency; (2) service covered by the Illinois State Guard Act; and (3) a period during which a service member is absent from employment for medical or dental treatment related to a condition, illness, or injury sustained or aggravated during a period of active service.
• Special treatment for performance reviews. Under ISERRA, a service member who is absent on military leave must be credited with the average of his or her efficiency or performance ratings or evaluations received over the three years preceding the leave, but in no case can the average rating be less than the rating that the employee received for the last rating period preceding his or her leave.
• Enforcement and damages. ISERRA provides for a private right of action to individual employee claimants as well as enforcement authority by the Illinois attorney general. Importantly, ISERRA expressly negates any statute of limitations for individuals or the attorney general to bring suit. In addition to actual damages, ISERRA authorizes the recovery of attorneys’ fees and up to $50,000 in punitive damages to a prevailing plaintiff.
• Posting requirements. ISERRA calls for employers to post a notice of employee rights under ISERRA. The required posting can be downloaded from the Illinois attorney general’s website.

See our previous article for additional information regarding ISERRA and its implications for Illinois employers.

Illinois Equal Pay Act Amendment to Include African-American Employees

On November 28, 2018, the Illinois legislature voted to override Governor Bruce Rauner’s veto of House Bill 4743, which expands the protections of the Illinois Equal Pay Act. Originally passed in 2003, the Act prohibits Illinois employers from paying men and women different wages for the same work. Effective January 1, 2019, the Act will extend those same protections to African-American employees. The amendment prohibits employers from paying African-American employees less than other employees for “the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Like the gender pay equality provisions, the amendment permits pay differences where wages are paid on the basis of seniority, merit, quantity or quality of production, or “any other factor other than: (i) race or (ii) a factor that would constitute unlawful discrimination” under the IHRA. The Act also prohibits employers from complying with the aforementioned provisions by lowering the wages paid to other employees.

Illinois Supreme Court Expected to Clarify Whether Damages Are Required to Bring a Lawsuit Under BIPA

In addition to these legislative efforts, a key decision from the Illinois Supreme Court is expected to provide clarification on the much-litigated Illinois Biometric Information Privacy Act (BIPA). BIPA requires that private entities in possession of biometric identifiers (such as fingerprints or retinal scans) or biometric information (any information based on biometric identifiers) must:

• develop and publish a written policy establishing a retention and destruction schedule for biometric identifiers and information;
• destroy the biometric identifiers and information when the initial purpose for collecting or obtaining them has been served, or within three years of the individual’s last interaction with the entity, whichever comes first; and
• obtain a written release from the individual prior to collecting biometric identifiers and/or information. The written release must also notify the individual of the “specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used.”

BIPA also gives a private right of action to “[a]ny person aggrieved by a violation of this Act.”

The Illinois Supreme Court is expected to clarify what it means to be “aggrieved” under BIPA. A lower court found that technical violations of the notice and consent provisions of the Act are not actionable absent allegations of actual harm resulting therefrom. That decision departed from an earlier decision out of a different Illinois court that held that technical violations—standing alone—were sufficient to state a cause of action under BIPA. The Illinois Supreme Court is expected to release its decision on this issue sometime in 2019.