Jay Shattuck | Executive Director, Employment Law Council | 217-544-6590

 

The mission of the Employment Law Council is to effectively represent Illinois employers on employment law issues such as workers compensation, unemployment insurance, employment discrimination, workplace mandates and other management/employee issues. We advocate public policy actions that advance the interests and viewpoints of employers, and to assist in creating a political climate conducive to improving Illinois' ability to create and retain jobs.
The Council accomplishes its mission with the involvement of hundreds of employers who participate in our three committees: Workers' Compensation; Employment Law & Litigation; and Unemployment Insurance.  Through the efforts of these committees we develop policies and strategies that are implemented by the Council and Illinois Chamber staff.
General Assembly Moves into Final Weeks...hopefully
 
The Illinois General Assembly is now entering its final weeks before the scheduled May 31st adjournment. There are many issues including the budget and the revenues to support it which remain unresolved. Pundits around the rail at the Capitol are speculating as to whether everything will be wrapped up by May 31st.
 
Budget discussions were invigorated with the announcement that revenues had recently increased by an unexpected $1.5 billion. Gov. Pritzker announced his intention to pull back his proposal for a pension holiday. 
 

Recreational Marijuana:
 
A big issue that was rolled out was the recreational marijuana issue (Senate amendment 1 to SB 7). There are numerous competing stakeholders and the bill has stalled with ongoing opposition. For employers concerned about marijuana use and its impact in its workplace see Section 10-50 pages 59-61 and the changes to the Right to Privacy in the Workplace (see page 532, lines 17-19). We provided testimony at the Senate Executive Committee, highlighting three principles that must be included to protect Illinois workplaces:
 
1)  Employers must be allowed to manage their workplace when it comes to cannabis or any other substance that impairs a worker, whether the worker is at an employer's physical location or engaged in work activities away from their formal workplace. For example, on-call workers or individuals that travel for their job such as salespersons.
2)  Employers that are required by government contract or wish to establish employment policies of zero tolerance or drug-free workplaces must be allowed to continue these policies without fear of litigation. These are common policies used by employers especially in safety sensitive industries such as construction and manufacturing.
3)  Employers also seek clarity and predictability that enforcing their policies in a non-discriminatory fashion will not place them in jeopardy of defending against their actions of discipline including termination of employment. Employers must clearly have the right to enforce their policies when an individual fails a confirmed drug test or refuses to be tested.

Employment Discrimination/Sexual Harassment
We also recently met with legislators and staff from the four different caucuses to review SB 1829. There are ongoing discussions and likely changes coming to the legislation in the House. As approved by the Senate, the legislation:
* Limits the use of legal documents intended to prevent an employee from reporting sexual harassment, such as non-disclosure agreements, arbitration clauses, and non-disparagement clauses for cases involving harassment, discrimination and retaliation;
* Makes harassment against contract employees illegal (currently, these employees do not have legal protection against sexual harassment);
* Clarifies that it is illegal to discriminate against an employee if they are perceived to be part of a protected class (i.e. gender, sexual orientation, ethnicity), even if they are not;
* Expands the Victims Economic Security & Safety Act (VESSA) to allow victims of sexual harassment to take unpaid leave from work to seek medical help, legal assistance, counseling, safety planning and other assistance;
* Prevents a union representative from representing both a victim of sexual harassment and the alleged harasser in a disciplinary proceeding;
* Requires employers, labor organizations and units of local government to disclose the number of sexual harassment and discrimination settlements or actions against them to the Department of Human Rights; and
* Requires employers to annually train their employees on preventing sexual harassment. The Department of Human Rights is required to make a sexual harassment training program available for employers to provide to their employees.

Paid Sick Leave
SB 471 is being heard in the House Labor Committee today. We have been told another amendment is forthcoming in the House.
The Chamber has offered the following concerns that need to be addressed in the bill:
1) Retains 40 hour paid sick time mandate, but provides greater flexibility for employer compliance;
2) Employer definition the same as Wage Payment & Collection Act and limiting to Illinois employers of 25 or more and to Illinois employees;
3) Preemption of similar local ordinances;
4) Clarifies the calculation of how leave is earned, whether it can be carried-over and how an illness is certified;  
5) Clarifies that the new Act does not provide additional time off for VESSA or the Federal FMLA;
6) Reduces statute of limitations from 3 to 2 years, remove punitive damages from remedies and provide recovery of legal fees for employers when faced with a frivolous or meritless claim determined in a civil action at circuit court;
7) Repeal of the Employee Sick Leave Act; and
8) Effective date of July 1, 2020.
 
Below is a rundown on Illinois legislation of interest to Employment Law Council Members:
 

Employment Discrimination:
 
HB 252  HUMAN RIGHTS-EMPLOYER-DEFINITION TO ONE EMPLOYEE (Oppose)
Last Action: Placed on Senate Calendar Third Reading (May 9, 2019)
Primary Sponsor: Representative Will Guzzardi (D-Chicago)/Senator Cristina Castro (D-Elgin)
Summary: Defines "employer" to include any person employing one (instead of 15) or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. Provides that "employer" does not include any place of worship with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by the place of worship of its activities. 
 
HB 834  EQUAL PAY ACT-WAGE HISTORY PROHIBITION (Oppose)
Last Action: Placed on Senate Calendar Third Reading (May 9, 2019)
Primary Sponsor: Representative Anna Moeller (D-Elgin)/ Senator Cristina Castro (D-Elgin)
Summary: Amends the Equal Pay Act of 2003 prohibiting an employer from: (i) screening job applicants based on their wage or salary history, (ii) requiring that an applicant's prior wages satisfy minimum or maximum criteria, and (iii) requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant disclose prior wages or salary. Prohibits an employer from seeking the salary, including benefits or other compensation or salary history, of a job applicant from any current or former employer, with some exceptions. Eliminates key defenses and significantly increases civil remedies and administrative penalties. An additional amendment that makes a small change to one of the employer defenses has been filed.
 
SB 1877  SEX HARASSMENT REPRESENTATION (Support)
Last Action: Re-referred to House Rules Committee (May 10, 2019)
Primary Sponsor: Senator John F. Curran (R-Willowbrook)/Representative Avery Bourne (R-Litchfield)
Summary: Creates the Sexual Harassment Victim Representation Act. Prohibits unions from designating the same union representative to represent both a victim of sexual harassment and the alleged perpetrator in any disciplinary proceeding.
 

Workers' Compensation
 
HB 269 , as amended  WORKERS' COMPENSATION-NO INSURANCE PROCESS (Neutral)
Last Action: Placed on Senate Calendar Third Reading (May 9, 2019)
Primary Sponsor:  Representative Jay Hoffman (D-Belleville )/Senator Linda Holmes (D-Aurora)
Summary: Allows a Commissioner, rather than the Commission, to issue an emergency work-stop order prior to a hearing. Requires the Commission to issue a notice of emergency work-stop hearing when and emergency work-stop order has been issued. Employers with 2 or more violations are prohibited from self-insuring for a period of one year. Moneys in the Self-Insurers Security Fund and in the Illinois Workers' Compensation Commission Operations Fund may be expended for salaries and benefits of the Self-Insurers Advisory Board employees and the operating costs of the Board.
 
SB 1596 OCCUPATIONAL DISEASES STATUTE OF REPOSE (Oppose)
Last Action: Sent to the Governor who must act on the legislation by May 19th.
Primary Sponsor: Senator Elgie Sims (D-Chicago)/ Representative Jay Hoffman (D-Belleville)
Summary: Amends the Worker's Compensation Act and the Workers' Occupational Diseases Act. Provides that specified Sections limiting recovery do not apply to injuries or death resulting from an occupational disease as to which the recovery of compensation benefits under the Act would be precluded due to the operation of any period of repose or repose provision. Provides that, as to any such injury occupational disease, the employee, the employee's heirs, and any person having the standing under law to bring a civil action at law has the nonwaivable right to bring such an action against any employer or employers. Effective immediately.
 
 
Benefit Mandates
 
HB 2830 , as amended SCHOOL VISITATION TIME OFF (Neutral)
Last Action: Placed on Senate Calendar Second Reading (May 1, 2019)
Primary Sponsor: Representative Anne Stava-Murray (D-Downers Grove)/Senator Tom Cullerton (D-Villa Park)
Summary: Amends the School Visitation Rights Act to prohibit from terminating an employee solely for an absence from work if the absence is due to the employee's attendance at a school conference, behavioral meeting, or academic meeting (rather than a school conference or activity). Makes it effective August 1, 2020.
 
HB 2847 , as amended ORGAN DONOR PROTECTIONS (Neutral)
Last Action: Placed on Senate Calendar Third Reading (May 14, 2019)
Primary Sponsor: Representative Deb Conroy (D-Villa Park)/Senator Julie Morrison (D-Deerfield)
Summary: Amends the Organ Donor Leave Act. Provides that an employer shall not retaliate against an employee for requesting or obtaining a leave of absence to donate blood, an organ, or bone marrow. Amends the Illinois Insurance Act making it unlawful to refuse to insure, to refuse to continue to insure, to limit the amount, extent, or kind of coverage available for life insurance, disability insurance, or long-term care insurance to an individual, or to charge an individual a different rate for the same coverage, solely because of the individual's status as a living organ donor. With respect to all other conditions, as persons who are living organ donors shall be subject to the same standards of sound actuarial principles or actual or reasonably anticipated experience as are persons who are not organ donors. 
Amends the Illinois Anatomical Gift Act requiring the Secretary of State to create a database consisting of all individuals who have consented to having their names included in the First Person Consent organ and tissue donor registry who have consented to having their names included in the First Person Consent organ and tissue donor registry. Allows an organ procurement organization that has executed a data access agreement with the Secretary of State to have online access to the database to determine whether a potential organ and tissue donor is included in the First Person Consent organ and tissue donor registry. Requires the organ procurement organization to indemnify and hold harmless the State, its officials, and employees for certain costs arising out of the organ procurement organization's use of the database. Effective January 1, 2020.
 
SB 68 , as amended INCOME TAX-ORGAN DONATION (Neutral)
Last Action: Re-Referred to Rules Committee (May 10, 2019)
Primary Sponsor: Senator Julie A. Morrison (D)/Representative Deb Conroy (D-Villa Park)
Summary: Amends the Illinois Income Tax Act to provide for a credit against withholding taxes in an amount equal to 25% of the wages or salary paid by a private employer to an Illinois employee while the employee is on organ donation leave if the employer grants all of its employees the option of taking a paid leave of absence of at least 30 days for the purpose of serving as an organ donor or bone marrow donor. Provides that the credit may not exceed $1,000.00 for each employee who takes organ donation leave. Provides that such a leave of absence must be taken without loss of pay, vacation time, compensatory time, personal days, or sick time for at least the first 30 days of the leave of absence. Requires the employer to provide medical documentation and documentation of the employer's organ donation leave policy to the Department of Revenue and to require the employee to allow medical records to be disclosed to the Department of Revenue. If the leave taken spans into a second tax year, the employer qualifies for the credit in the later of the 2 years. Provides that the credit may be carried forward. Effective immediately.
 
SB 471,  as amended: MANDATED PAID TIME OFF (Oppose)
Last Action: Assigned to House Labor & Commerce Committee (May 14, 2019)
Primary Sponsor: Senator Toi Hutchinson (D)/Representative Jehan Gordon-Booth
Summary:  Creates the Healthy Workplace Act requiring employers to provide specified paid time off to employees. Sets forth the purposes for and manner in which the paid time off may be used. Contains provisions regarding employer responsibilities, unlawful employer practices, and other matters. Exempts employers subject to the Railway Labor Act. Provides that an employee who works in the State who is absent from work for specified reasons is entitled to earn and use a minimum of 40 hours of paid time off during a 12-month period or a pro rata number of hours of paid sick time. It is unlawful for an employer to interfere with, restrain, deny, change work days or hours scheduled to avoid paying time off, or discipline an employee for the exercise of, or the attempt to exercise, any right provided under or in connection with the Act, including considering the use of paid time off as a negative factor in an employment action that involves hiring, terminating, evaluating, promoting, disciplining, or counting the paid time off under a no-fault attendance policy. Any employer that the Department of Labor or a court finds by a preponderance of the evidence to have knowingly, repeatedly, or with reckless disregard violated any provision of the Act or any rule adopted under the Act is subject to a civil money penalty to be  paid to the employee not to exceed $2,500 for each separate offense. Provides that the Department of Labor shall administer the Act. Authorizes individuals to file civil actions with respect to violations..Effective immediately.
 

Miscellaneous
 
HB 1653  BARS FROM STATE CONTRACTS EMPLOYERS WHO VIOLATE WAGE LAWS (Oppose)
Last Action: Referred to Assignments (April 9, 2019)
Primary Sponsor: Representative Celina Villanueva (D-Chicago)/Senator Iris Martinez (D-Chicago)
Summary: Prohibits any person or business that violates the Illinois Wage Payment and Collection Act, the Minimum Wage Law, the Illinois Worker Adjustment and Retraining Notification Act, the Employee Classification Act, the Day and Temporary Labor Services Act, the Fair Labor Standards Act of 1938, or any comparable state statute or regulation of any state which governs the payment of wages to do business with the State or any State agency or enter into a subcontract that is subject to the Code for a period of 5 years. Increases penalties under the Illinois Wage Payment and Collection Act to: an employer that is able to pay wages and who refuses to pay is guilty of a Class 4 felony with respect to amounts of $5,000 or less (rather than a Class B misdemeanor) and of a Class 3 felony with respect to amounts greater than $5,000 (rather than a Class A misdemeanor); and subsequent failure to pay within 5 years (rather than 2 years) of a prior conviction is a Class 3 felony (rather than a Class 4 felony). Certain provisions do not apply to vendors or contracts providing for Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) benefits, Supplemental Nutrition Assistance Program (SNAP) benefits, or Medicaid benefits.
 
HB 2233  SPECIAL INTERROGATORIES (Oppose)   
Last Action: Passed Both Houses (May 8, 2019)
Primary Sponsor: Representative André Thapedi (D-Chicago)/Senator John Mulroe (D-Chicago)
Summary: Amends the Code of Civil Procedure providing that within the discretion of the court, the jury may be asked (rather than required by the court, and must be required on the request of any party) to find specially upon any material question or questions of fact submitted to the jury in writing. Any any party may request special interrogatories. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal to determine whether the trial court abused its discretion (rather than as a ruling on a question of law). When any special finding of fact is inconsistent with the general verdict, the court shall direct the jury to further consider its answers and verdicts, and if, in the discretion of the trial court, the jury is unable to render a general verdict consistent with any special finding, the trial court shall order a new trial (rather than the former controls the latter and the court may enter judgment accordingly). During closing arguments, the parties shall be allowed to explain to the jury what may result if the general verdict is inconsistent with any special findings. Changes apply only to trials commencing on or after January 1, 2020. Effective immediately.
 
HB 2557  VIDEO INTERVIEW ACT (Neutral)
Last Action: Placed on Senate Calendar Second Reading (May 1, 2019)
Primary Sponsor: Representative Jaime M. Andrade, Jr. (D-Chicago)/Senator Iris Martinez (D-Chicago)
Summary: Creates the Artificial Intelligence Video Interview Act requiring an employer that asks applicants to record video interviews and uses an artificial intelligence (AI) analysis of applicant-submitted videos to: notify each applicant in writing before the interview that AI may be used to analyze the applicant's facial expressions and consider the applicant's fitness for the position; provide each applicant with an information sheet before the interview explaining how the AI works and what characteristics it uses to evaluate applicants; and obtain written consent from the applicant to be evaluated by the AI program. Prohibits an employer from: 1) using artificial intelligence to evaluate applicants who have not consented to the use of AI analysis; and 2) from sharing applicant videos, except with persons whose expertise is necessary in order to evaluate an applicant's fitness for a position. The Chamber is working on an amendment with the bill sponsors.
 
HB 2975  PROHIBITS AN EMPLOYER FROM WAIVING EMPLOYEE RIGHTS or BENEFITS (Oppose)
Last Action: Placed on Senate Calendar Second Reading (May 8, 2019)
Primary Sponsor:  Representative Marcus C. Evans, Jr. (D-Chicago)/Senator Ram Villivalum (D-Chicago) 
Summary: Amends the Employment Contract Act prohibiting an employer from requiring as a condition or precondition of employment that an employee or person seeking employment waive, arbitrate, or otherwise diminish any future claim, right, or benefit to which the person would otherwise be entitled under State or federal law. Effective immediately.
 
HB 3061  HEALTH CARE WORKER BACKGROUND (Neutral)
Last Action: Placed on Senate Calendar Second Reading (May 2, 2019)
Primary Sponsor: Representative Justin Slaughter (D-Chicago)/Senator Elgie Sims (D-Chicago)
Last Action: Placed on House Calendar Second Reading (May 2, 2019)
Primary Sponsor: Senator Elgie R. Sims, Jr. (D)/Representative Justin Slaughter (D-Chicago)
Summary: Amends the Health Care Worker Background Check Act providing that an individual otherwise qualified for and intending to apply for a direct care position who has a disqualifying conviction may initiate a fingerprint-based criminal history record check where a conditional offer of employment has not been made and such a background check has not been previously conducted, and allows those individuals to request a waiver of the prohibition of employment. 
Allows workforce intermediaries and organizations providing pro bono legal services to initiate a fingerprint-based criminal history record check if a conditional offer of employment has not been made and a background check has not been previously conducted for an individual who has a disqualifying conviction and is receiving services from a workforce, intermediary or an organization providing pro bono legal services. Defines "workforce intermediaries" and "pro bono legal service organizations". Effective immediately.
 
HB 3405 ,  as amended PROHIBITS GRATUITY RETENTION (Neutral)
Last Action: Placed on Senate Calendar Second Reading (May 1, 2019)
Primary Sponsor: Representative Karina Villa (D-Batavia)/Senator Omar Aquino (D-Chicago)
Summary: Amends the Illinois Wage Payment and Collection Act to provide that gratuities are the property of employees and that employers shall not keep gratuities. Requires gratuities to be paid to employees within 13 days after the end of the pay period during which the gratuities were earned. Permits the employer to reduce the amount of a gratuity paid by credit card by a proportionate amount of the fee incurred in processing credit card payments.
  
SB 75 , as amended HOTEL CASINO EMPLOYEE SAFETY (Neutral)
Last Action: Placed on House Calendar Third Reading (May 14, 2019)
Primary Sponsor: Senator Ram Villivalam (D)/Representative Bob Morgan (D-Highwood)
Summary: Creates the Hotel and Casino Employee Safety Act which will require hotels and casinos to adopt anti-sexual harassment policies and make safety devices available to certain employees. Prohibits retaliation against an employee for using a safety device, availing himself or herself of the protections afforded by an anti-sexual harassment policy, or disclosing, reporting, or testifying about violations of the Act. Defines the terms "casino employer" and "hotel employer"; requires time off to be granted to file criminal complaints rather than sign police complaints; limits economic damage awards to $350 per incident; provides that before a representative of employees may bring a claim on behalf of employees, the employer must be given 15 calendar days within which to correct the violation. Effective July 1, 2020.
 
SB 161 , as amended ATTORNEY GENERAL-WORKER PROTECT UNIT
Last Action: Placed on House Calendar Second Reading (May 9, 2019)
Primary Sponsor: Senator John F. Curran (R-Willowbrook)/Representative Jay Hoffman (D-Belleville)
Summary: Amends the Attorney General Act. Creates the Worker Protection Unit within the Office of the Illinois Attorney General to intervene in, initiate, enforce, and defend all criminal or civil legal proceedings on matters and violations relating to specified statutes. Provides further powers and requirements of the Attorney General in the Worker Protection Unit. Creates the Worker Protection Task Force. Provides for the purposes and composition of the Task Force. Provides that the Task Force shall submit a report to the Governor and the General Assembly regarding its progress no later than December 1, 2020. Repeals the Task Force December 1, 2021.Modifies provisions concerning the Worker Protection Unit. Specifies that the Unit shall be dedicated to combating businesses that underpay their employees, force their employees to work in unsafe conditions, and gain an unfair economic advantage by avoiding their tax and labor responsibilities. Specifies that the Unit shall have the power and duty to intervene in, initiate, and enforce all legal proceedings on matters related to the payment of wages, the safety of the workplace, and fair employment practices. Provides that the Office of the Attorney General may use information obtained by the Worker Protection Unit for law enforcement purposes only. Modifies provisions concerning the Worker Protection Unit Task Force. Provides that the Task Force shall be coordinated by the Office of the Attorney General to promote a statewide outreach and enforcement effort to target businesses that violate the State's worker protection laws (currently, to target Illinois' underground economy). Adds members to the Task Force. Makes other changes concerning the purposes and duties of the Unit and Task Force.

Key Legislation
 
 
 
 
 
 
 
 
 
 
 
Upcoming Events

October 8, 2019 - Illinois Chamber Workers' Compensation Annual Conference, Drury Lane, Oak Brook Terrace

December 4, 2019 - Illinois Chamber - ILSHRM Annual Employment Laws Update - more details will be forthcoming 

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