November 9, 2018

This Week in Illinois 

The election day has come and gone.  Many of you are rejoicing over the fact that campaign mailers and TV commercials have concluded (unless you are in the Chicago-media market approaching a Mayoral election).  Not to reiterate what has been reported in the news, but the balance of state government in Illinois is in one-party control.  

Riding off the coattails of the national election, Illinois Democrats swept all five constitutional offices (Governor, Attorney General, Comptroller, Treasurer, and Secretary of State), expanded their super majority in the state Senate and secured a super majority in the House.   A handful of state legislative races remain "too close to call."  And in case you ever doubted your vote, two votes separates one legislative race in the Lake County area (Rep. Helen Walsh vs. Mary Edly-Allen).

This election saw a surge in vote-by-mail ballots, otherwise known as VBM.  Voters had the option of sending in their ballots up until election day; so expect a handful of the close races to remain uncalled until November 20th when ballots are received and counted by election authorities.

The current House composition is 67 Democrats and 51 Republicans. A supermajority is 71. The Democrats picked up the following GOP seats: 
  • 48th District (Western Suburbs including Lombard and Lisle) - Democrat Terra Costa over Rep. Peter Breen 53-47 
  • 49th District (Western Suburbs including South Eligin and St. Charles) - Democrat Karina Villa over Republican Tonia Khouri 53-47 
  • 53rd District (Northwest Suburbs including Arlington Heights) - Democrat Mark Walker over Republican Eddie Corrigan 52-48 
  • 61st District (Northern Suburbs including Winthrop Harbor) - Democrat Joyce Mason over Republican Rep. Sheri Jesiel 51.5-48.5 
  • 76th District (Central Illinois) - Democrat Lance Yednock over Republican State Rep. Jerry Long 55-45 
The Republicans picked up one seat, Republican Patrick Windhorst over incumbent Democrat Rep. Natalie Phelps Finnie 57-43 

The following races have a razor-thin margin, and will come down to outstanding vote by mail ballots: 
  • The 45th District currently represented by Christine Winger has Democrat Diane Pappas winning by 239 votes per the Sun Times. 
  • The 51st District currently represented by Helene Miller Walsh has the incumbent down by 2 votes to Democrat challenger Mary Edly-Allen. 
  • The 81st District has GOP incumbent David Olsen currently losing to Democrat Anne Stava-Murray by 325 votes. 
The current State Senate composition is 37 Democrats and 22 Republicans. 36 is a supermajority. The Democrats picked up the 27th District (GOP incumbent Sen. Tom Rooney), with two other races not yet finalized (GOP Sens. Mike Connelly and Chris Nybo).

We'll know for certain what the total makeup of the General Assembly by the 20th and will provide a complete breakdown of the legislature at that time.  

Veto session is scheduled to commence Tuesday, November 13 through Thursday, November 15 and return November 27 through November 29.  Two scenarios can play out.  One, the legislature can be active by overriding the Governor's vetoes and advancing various measures not specific to veto session.  Or two, the legislature can decide not to override or concur with the Governor's vetoes and punt the issues to a new General Assembly with a new governor.  

There are a lot of lame duck lawmakers who have retired or have lost their election. Anything can happen. In the meantime, here are some of the issues and vetoes that may be acted on during the veto session.  

Employment Law
All eyes on employment law issues.  The legislature passed several anti-business employment law bills on the Governor's desk last session.  The thought was to drive wedge issues that tap into populous sentiment in order to damage the Governor's image with voters (remember all those political mailers?).  

Most notably is SB 904 (Hastings/Hoffman).  This legislation makes numerous changes to provisions regarding the payment of worker's compensation medical bills. Gov. Rauner agreed with our assessment of SB 904 that Illinois' workers' compensation law needs revision to reduce the friction between employers and medical providers; but SB 904 would further increase employer costs in a system where Illinois has the second highest medical fee schedule in the country. The Governor's amendatory veto provides a balance between employer and medical provider interests. 

Employers have identified numerous problems with SB 904 resulting in the Illinois Chamber's strong opposition. For example, SB 904 allows a medical provider to pursue collection of their bill in circuit court prior to a determination of whether an injury occurs in the workplace by the Workers Compensation Commission. If enacted, Illinois would be the only state in the country allowing such a procedure. We firmly believe this change alone will add more litigation in an overly litigious system; slow down claim adjudication for injured workers; and, cause workers' compensation costs to increase.

The Illinois Chamber has communicated to the proponents of SB 904 our willingness to negotiate changes to the law to address their concerns in a manner that will not adversely impact Illinois employers. To date, our offer has been rejected.  Our one pager may be found here.  

Next up is HB 4163 (Moeller/Castro).  This bill amends the Equal Pay Act of 2003 prohibiting an employer from inquiring about salary and wage history by adding new standards that limit employer defenses and adding new compensatory and punitive damage penalties on businesses who are not compliant. 

The Illinois Chamber opposes this bill and supports the Governor's amendatory veto because Illinois law already prohibits wage discrimination and the Equal Employment Opportunity Commission (EEOC) limits how wage and salary data can be used in hiring decisions. HB 4163 will increase litigation, liability, and penalties on employers. The Equal Pay Act already requires an employer to show clear reasoning for a pay disparity based on a non-discriminatory factor. Business representatives were willing to negotiate bipartisan, agreed-to legislation by supporting SB 3100, which in addition to barring an employer from asking wage history, it incentivized businesses to comply with the law. 

Next is HB 4572 (Guzzardi/Castro).  This bill amends the Illinois Human Rights Act to redefine "employer" to include any person employing one (currently 15) or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation.

The Chamber opposes this bill and supports the Governor's veto because it sends another negative signal to small businesses, startups and entrepreneurs residing in or considering moving to Illinois. Only 14 other states have employment discrimination laws that cover an employer of one or more employee. Of the 14 states, only 3 are in the Midwest. Surrounding states like Missouri, Kentucky, Tennessee, and Indiana cover employers with six to eight employees. Eleven states still maintain an employer of 15-20 or more employees. Originally when Congress enacted Title VII in 1964, the intent for creating a small firm exemption was to relieve small firms of the otherwise disproportionate costs they might bear for litigation; preserve a right of "personal" relationships beyond government intervention; permit racial or ethnic self-help by small firms and family-owned businesses; and to avoid over-extension of the Equal Employment Opportunity Commission's limited resources. In addition, the Illinois Human Rights Act already applies to employers of one or more employees for discrimination regarding a physical or mental disability, pregnancy, or sexual harassment. HB 4572 expands to other protections that require analysis such as race where a "disparate impact" analysis is needed. This analysis would be impossible to do if the employer only has a few employees.

Lastly, HB 4743 (Ford/Lightford), which amends the Equal Pay Act providing that no employer may discriminate between employees by paying wages to an African-American employee at a rate less than the rate at which the employer pays wages to another employee who is not African-American for the same or substantially similar work on a job that requires equal skill, effort, and responsibility and is performed under similar working conditions. 

The Chamber opposes this bill and supports the Governor's amendatory veto because protection against discrimination should not be limited to one race. An unjustified pay differential based on race is a form of discrimination under the Illinois Human Rights Act. This legislation is not necessary.

There are two hearings next week that the business community should pay close attention to.  Both the House and Senate will be holding hearings on the topic of ethylene oxide (EtO).  The chemical used in a variety of uses has come under pressure from lawmakers due to the potential risk of cancer if exposed.  Some of the proposals that have been discussed include closing down lawfully operating businesses; revoking state issued environmental permits; or banning the use of EtO altogether.  

The House Environment Committee will hear both Chamber-opposed HB 5983 (Durkin) and HB 5985 (Yingling).  Both bills seek to limit the use of EtO to medical sterilization and look to prohibit it's use altogether in the coming years. It is our understanding that the House Committee will advance the bills and hold them on 2nd while working groups hash out a potential compromise.  In the other house, the Senate Environment Committee is holding a subject matter hearing on EtO.  

There was a hearing in Chicago a few weeks ago on EtO.  The Chamber submitted written testimony explaining our position.

A few weeks back, Gov. Rauner issued an executive order opening Illinois for autonomous vehicle testing.  His executive order created a multi-agency public-private partnership allowing for local testing of autonomous vehicles.  The Governor's veto caused the motorcycle group ABATE to rescind their endorsement of the Governor.  In addition, the trial lawyers, have been slow to embrace the concept of autonomous vehicles. To conclude,  HB 2747 (Zalewski) has been moved out of the Rules Committee and placed on the floor for a vote.  This bill would create the the Safe Autonomous Vehicle Act.  While it is unlikely that the bill will move as is, it could end up including language that rescinds the Governor's executive order.  The Chamber, along with other stakeholders are meeting with Rep. Zalewski next week to discuss next steps.  

Nothing of significance this week in tax arena for this week.

The House Public Utilities Committee posted for a subject matter hearing on EPA Rule Changes. The hearing is expected to be a continuation of the hearing held back in October on the proposed Affordable Clean Energy rule. According to staff, Vice-Chairman Thapedi would like to hear more from stakeholders now that the USEPA comment period has closed. The Chamber testified at the last hearing in Chicago and spoke to the importance of establishing a robust stakeholder process. The hearing is scheduled for 3pm, or after session.

SFA 2 to SB 458 (Manar) has been posted to the Senate Human Services Committee.  This bill deals with telehealth  insurance coverage.  

The legalization of recreational marijuana was a major campaign promise of Governor-elect JB Pritzker.  While it is unlikely that recreational marijuana would be approved during veto session, a non-binding bill that would have asked voters in the November 2018 election whether marijuana should be legalized has been posted to a the Senate Elections and Campaign Finance Committee.  It is unclear at this moment why the bill is posted or whether the bill will be amended with different language.  

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If you have questions about the Government Affairs Report, contact Tyler Diers at Do not reply to this email. 

Illinois Chamber of Commerce

2017 Government Affairs Report | Tyler Diers, Editor