Very recently, the Illinois Black Caucus of the General Assembly introduced four bills with intention of passage during this lame duck session starting tomorrow and ending Wednesday. HB 163
deals with policing reforms. HB 2170
focuses on education reform. HB 5548
(House Amendment 1) and HB 3840
(Senate Amendment 1) are identical healthcare and human services reform bills. Expect more from the Chamber about the healthcare bills in the near future.
Concerns & Recommendations for Employment Law Provisions
Pages 1-6: Creates the Employee Background Fairness Act. This proposed new Act would impact employer hiring practices and policies regarding the hiring of individuals with criminal backgrounds. It also provides limited legal protections for employers upon hiring of workers with criminal backgrounds.
While we are open to negotiating changes to the proposal, we strongly recommend that the "Job Opportunities for Qualified Applicants Act" (Ban the Box/(820 ILCS 75/1 et al)) is a better place to meet the objectives of the proposed new Act while allowing employers to more easily comply. We are able to provide a counterproposal amending the current law.
Our Concerns with HB 5871's "Employee Background Fairness Act":
1) Section 5: The definition of "direct relationship" is extremely restrictive, so restrictive that an employer has virtually no option but to hire under this type of test. The definition requires the employer to show that the criminal conduct WILL recur in the future...an impossible standard to meet for any employer.
We recommend a "reasonable relationship" definition that focuses on the employer evaluating the conviction and the job with the following factors in mind of the applicant/employee: SAFETY, RELIABILITY and RESPONSIBILITY.
2) Section 5: The definitions of "employee" and "employer" need to align with those provided in the Wage Payment & Collection Act. This will help by using current law including case law to ascertain who is covered by the law and avoid new litigation over these terms.
3) Section 10, the notice and pre-adverse and final adverse notice is already required under federal law. To avoid confusion and conflict regarding notice, Illinois law should align with the federal law. And, for clarification the 7 days should provide for 7 "calendar" days.
4) Section 10: Under the Illinois Human Rights Act, employers are allowed take action on facts that it knows of surrounding an arrest but not the arrest itself. To avoid conflict with the Illinois Human Rights Act, language must be added allowing employers to consider any fact that it can independently verify that surrounds any arrest or conviction and take adverse action based on those facts.
5) Section 30 regarding civil immunity needs to be strengthened.
6) As recommended above, we believe the objectives of providing greater employment for individuals with criminal backgrounds can be better achieved with amendments to the "Job Opportunities for Qualified Applicants Act". If a new Act is the preferred public policy approach, we recommend repealing the current Act.
Pages 321-330: Adds to the Equal Pay Act that any business of 100 or more full-time employees must obtain an "equal pay certificate". Prohibits the State of Illinois from contracting with any business of 40 or more full-time employees unless such business has an "equal pay certificate" issued by the Illinois Department of Labor. Exempts certain contractors.
Our concerns about requiring certification: unnecessary duplication, and regulatory overkill:
1) All Illinois employers already must comply with the Illinois Human Rights Act and the Illinois Equal Pay Act. Illinois employers with 15 or more employees must already comply with Title VII of the Civil Rights Act. Private employers of 100 or more employees and federal contractors with 50 or more employees must already file with the federal EEOC Standard Form 100 (EEO-1). All Illinois employers must also already comply with the federal Equal Pay Act. Each of these Acts has their own enforcement mechanisms, remedies and penalties.
2) What will be the basis for an employer to be able to certify its average compensation for its female and minority employees is "not consistently below" the average compensation for its male and non-minority employees? This standard is undefined and open to wide interpretation which will lead to significant litigation.
3) Subsection (k) is awkwardly worded and may not provide adequate protection for specific employer data from being accessed.
4) Subsection (m) regarding whistleblower protection uses the term "facility" which is not defined. Employers will be responsible for employee actions other than supervisory employees which is a dramatic expansion of liability.