Fall Session Cancelled
Senate President Harmon and House Speaker Madigan have determined that the rise in COVID risk is reason enough to cancel the six days that were scheduled for the General Assembly to meet in the coming weeks. Since there were no vetoes, there was no issues that absolutely needed to be addressed.
It's expected that there will be a "lame duck" session prior to the swearing of the new 102nd General Assembly on January 12, 2021. During the lame duck session, it is expected that lawmakers will be considering reforms being pushed by the Black Caucus legislative members and COVID-related issues for unemployment insurance and workers' compensation (see articles below).
Illinois Legislative Election Wrap-up
Vote by mail and provisional ballots continue to be counted in Illinois until November 17. November 14th is the last day for canvassing for election results. December 4th is the last day for the State Board of Elections to canvass returns and proclaim the results of the election.
Senate Democrat majority to increase to 41 to 18 super majority. The open 25th district was flipped to the Democrat majority by Rep. Karina Villa (D-West Chicago). There will be two members of the Senate sworn in on January 12th who have not previously served in the General Assembly: Meg Cappel (D-Plainfield) and Win Stoller (R-Peoria). Three state representatives are moving to the higher chamber in 2021: John O'Connor (D-Joliet); Darren Bailey (R-Xenia) and Terri Bryant (R-Murphysboro). Three House members also were appointed to fill mid term vacancies the past year: Sara Feigenholtz (D-Chicago); Robert Martwick (D-Chicago); and Celina Villanueva (D-Chicago). Also appointed mid-term were Adriane Johnson (D-Gurnee) and Patrick Joyce (D-Kankakee). Sen. Joyce was elected to the Senate in the most recent election. This is a total of eleven members of the Senate who were not members of the 101st General Assembly when its members were sworn in in January of 2019.
Shortly after the election, Senate Republicans elected Dan McConchie (Barrington Hills) as its leader. He named Sue Rezin (Morris) as Deputy Minority Leader. Sen. McConchie will replace Bill Brady. When the Senate Democrat Caucus meets, it's expected to re-elect Don Harmon (Oak Park) as Senate President.
House GOP are likely to net two seats after all the votes are counted. House Republicans were able to exceed expectations by protecting most of their suburban county districts and defeat four incumbents. Victorious GOP challengers include Seth Lewis (Bloomingdale) wins over Rep. Dianne Pappas; Chris Bos (Libertyville) wins over Rep. Mary Edly-Allen; Amy Elik (Alton) wins over Rep. Monica Bristow; and Davis Friess (Red Bud) wins over Rep. Nathan Reitz. Two Democrat challengers were successful in winning: Janet Yang Rohr (Naperville) wins over Rep. Grant Wehrli and Suzanne Ness (Crystal Lake) wins over Rep. Allen Skillicorn. The one race still undecided is Rep. John Cabello (R- Loves Park) who was challenged by Dave Vella. Cabello has an unofficial 358 vote lead as of this writing.
There will be a total of 23 members of the 102nd General Assembly who were not sworn in as members of the 101st General Assembly, a turn over rate of 19%. The House Democrat Caucus will have 12 such members, seven who were appointed to the 101st General Assembly. Of the eleven new members of the House GOP Caucus, only one was appointed during the 101st General Assembly.
Like the Senate Republican Caucus, their House counterparts quickly met. They unanimously re-elected Jim Durkin as their House Leader. While Speaker Madigan is under a cloud of suspicion and some in his party are suggesting him stepping down, he has indicated that he plans to stand for re-election as Speaker and he is contacting his caucus members seeking their support. He will need 60 of the 72 members of his caucus to remain as Speaker. Elected as Speaker in 1983, He has served other than two years as Speaker of the Illinois House, a total of 35 years.
COVID Issues for January Lame Duck Session
Unemployment Insurance: Several COVID-related issues expire at the end of this calendar year including:
- Waiver of the benefit charges to individual employers due to benefits paid and caused by COVID-19;
- Reimbursable employers (nonprofits and local government units) are responsible for 50% of the benefits paid if the individual's unemployment is directly or indirectly attributable to COVID-19;
- Employers will not be charged for benefits paid due to the waiver of the one week waiting period; and
- Expansion of benefits to Noninstructional Workers (an individual "in other than an instructional, research, or principal administrative capacity performed for an educational institution or an educational service agency") typically not eligible for UI benefits.
Earlier this month there was a virtual meeting with the Illinois Department of Employment Security, business representatives, organized labor representatives and legislators to kick start negotiations to address unemployment insurance. The Council's Unemployment Insurance Committee has developed the Illinois Chamber's priorities for negotiations. Our focus for 2021 will be addressing the UI Trust Fund deficit and combatting the unprecedented fraud that is occurring. For a copy, contact Jay Shattuck at email@example.com
Workers' Compensation: The rebuttable presumption provision, (Subsection 1(g) to the Workers' Occupational Diseases Act (820 ILCS 310/1), also expires on December 31st. Agreed bill negotiations concluded with an agreement to move the sunset of the provision to June 30, 2021 and a suspension of any medical fee increases. This puts on hold the consideration of a 30% fee schedule increase for Evaluation & Management services.
Advocacy Groups Offer Their Priorities for 2021
During a recent virtual Senate Joint Committees hearing, an advocate for low income workers identified their Illinois legislative priorities for 2021. Not surprising, they are:
Paid Sick Leave
Dramatically restricting the use of independent contractors/misclassification
The Council is developing its strategy for implementation to address these issues. If you have any comments, suggestions or thoughts, please contact Jay Shattuck at Jay@shattucklobbying.com
Non-compete & Non-solicit Legislative Agreement
Since last February, The Illinois Chamber Employment Law Council has been in negotiations with the National Employment Lawyers Association (NELA) on changes to the Illinois Freedom to Work Act. The proposal generally makes reasonable limitations on covenants not to compete and covenants not to solicit and provides employers greater clarity and certainty as to whether their covenant not to compete or covenant not to solicit will muster judicial scrutiny. A copy of the draft legislation can be provided upon request to Jay Shattuck at firstname.lastname@example.org.
From the Illinois Chamber's view, the proposal protects what employers care the most about:
- It helps clarify the law about what is adequate consideration and what is a legitimate business interest sufficient to warrant a non-compete. It will make it easier for an employer to show a legitimate business interest sufficient to support the restriction, and it preserves the ability of a court to judicially modify overly broad covenants.
- The procedural protections for employees (e.g., the 14-day review period and advice to consult with an attorney before signing), will cause courts to be more comfortable about enforcing a covenant and will diminish judicial qualms about whether the employee actually signed the covenant as a matter of free will.
- The statutory fee shifting provision for a prevailing employee is pro-employee, but virtually every noncompete already has a fee shifting provision in favor of the employer only. This proposal will have the effect of leveling the playing field: whichever side wins will be liable for fees. The result will remove the taint of unfairness that surrounds non-compete covenants - again, further alleviating judicial qualms about fairness.
- Finally, the proposal expressly carves out garden leave clauses and certain other types of restrictions from the definition of a covenant not to compete, including "no rehire" provisions in separation agreements, confidentiality agreements, and covenants related to the sale of a business.
We are pushing for consideration of the proposal during the lame duck session in January.
New Laws Conference Set for December 1
The 7th Annual New Laws Conference is going virtual and will be held the morning of December 1st. The New Laws Forum focuses on the new employment laws and legal developments that will affect ALL Illinois employers in 2021 and beyond. The forum features Illinois attorneys and experts speaking about Illinois laws - as well as representatives from government agencies talking about the latest changes and your peers, the Senior HR professionals discussing how the laws have and will affect their businesses. We expect 2021 to be a very busy year with new laws and regulations. You will want to be prepared to be able to better implement these changes in your organization.