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December 2019

New Legislation for Illinois Employers - 2020 Legal Updates

The past year was a historically busy one for Illinois lawmakers on the employment front.  As we begin 2020, it is as important as ever for employers to review their current policies to confirm they are complying with new laws.  Some of these laws are already in effect and others will take effect in the near term. The following is a high-level overview of the extensive changes:

  • Illinois Workplace Transparency Act (IWTA) Creates Significant Changes to Employment Landscape Statewide.  Effective January 1, 2020, the IWTA will (1) restrict use of confidentiality/non-disclosure provisions in employment agreements, separation agreements, and settlement agreements, unless certain requirements are met; (2) limit the employer’s ability to unilaterally require certain provisions as a condition of employment, including mandatory arbitration clauses (although such agreements may be negotiated for additional consideration); (3) prohibit employers from forbidding employees from making truthful statements about alleged unlawful employment practices or criminal activity; and (4) implement new civil penalties for non-compliance.
  • Illinois Human Rights Act (IHRA) Becomes Increasingly Employee-Friendly.  Effective January 1, 2020, the IHRA is amended to provide broader protections to employees. These expansions include: (1) a person’s actual or perceived status as a member of a protected class, such that the IHRA now protects against discrimination or harassment on the basis of “an individual’s actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from the military status, or citizenship status”; (2) broader definition of “employer” to include any entity that employs one or more persons (instead of the previous 15-employee requirement); (3) broader application to non-employees, such as independent contractors, consultants, and anyone “directly performing services for the employer pursuant to a contract with that employer”; (4) application beyond just the physical location employees perform their duties; and (5) required annual sexual harassment prevention training.  The IHRA’s amendments also include industry-specific requirements for restaurants and bars.  Additionally, effective July 1, 2020, employers are required to make annual disclosures to the Illinois Department of Human Rights (IDHR) regarding adverse judgments or administrative rulings in the preceding year, and—in some limited circumstances—settlements of sexual harassment or discrimination claims.
  • Victims’ Economic Security and Safety Act (VESSA) Expanded to Protect Victims of Gender Violence.  Effective January 1, 2020, VESSA allows employees who are victims of gender violence to take unpaid, job-protected leaves of absence, which is in addition to the existing protections for victims of domestic violence, sexual violence, and stalking.
  • Illinois Becomes Eleventh State to Legalize Recreational Marijuana, However Employers May Implement Reasonable Drug-Free Workplace Policies.  Effective January 1, 2020, recreational marijuana is legal in Illinois under the Illinois Cannabis Regulation and Tax Act (ICRTA).  The ICRTA expressly permits employers to adopt “reasonable” zero-tolerance drug-free workplace policies, so long as they are applied in a nondiscriminatory manner.  The following are the key takeaways: (1) employers may prohibit the use and storage of marijuana in the workplace; (2) employers may subject employees and job candidates to reasonable suspicion and post-accident drug testing; (3) employers may prohibit employees from being under the influence of or impaired by marijuana in the workplace, while performing their job duties, or while on call; (4) employers may adopt policies providing for discipline of employees who, in employers’ good faith judgment, used or possessed marijuana in the workplace, while performing their job duties, or while on call; and (5) employers must allow employees to contest the basis for the employer’s determination that the employee was under the influence or impaired by marijuana.
  • Illinois Becomes at Least the Twelfth State to Restrict Employers from Inquiring into Applicants’ Salary Histories.  Already effective, the Illinois Equal Pay Act now prohibits employers from soliciting salary histories from prospective employees as a condition of being interviewed or employed, as well as forbidding employees from discussing their compensation with others (with exceptions for human resources and supervisory employees disclosing others’ compensation).  Notably, however, employers may still ask prospective employees for their compensation expectations.
  •  Illinois Enacts First-of-Its-Kind Artificial Intelligence Video Interview Act.  Effective January 1, 2020, employers that use artificial intelligence (AI) in the hiring process, including recording video interviews, are required to: (1) notify applicants before the interview that such technology may be used; (2) provide applicants with information before the interview on how the AI technology works and its general characteristics; (3) obtain applicants’ prior consent to be assessed by AI technology; (4) maintain the confidentiality of such videos and share with only those whose expertise or technology is necessary in order to evaluate applicants’ fitness for a position; and (5) destroy all copies within 30 days of applicants’ requests.  The new law is frustratingly unclear on, among other things, what qualifies as AI and the consequences of a violation.  Of course, employers must also comply with the Illinois Biometric Information Privacy Act, which also presents implications for the use of AI.
  • New Hotel and Casino Employee Safety Act (HCESA) Provides Additional Protections for Employees Working in These Industries.  Effective July 1, 2020, the HCESA requires hotels and casinos to provide employees assigned to work alone in certain areas with a notification or safety device, often referred to as a “panic button,” to allow employees to summon help in a perceived emergency. The HCESA also requires hotels and casinos to implement comprehensive, written anti-sexual harassment policies, which must be provided to employees in English and Spanish (and possibly other languages), as well as posted in conspicuous places. The HCESA establishes a private right of action, with prevailing employees being entitled to attorneys’ fees and costs.
  • U.S. Department of Labor Increases Salary Requirements for Certain Overtime Exemptions.  Effective January 1, 2020, the U.S. Department of Labor updated the Fair Labor Standards Act regulations to increase the salary requirements for the “white-collar” exemptions—i.e., administrative, executive, and professional—from $455 per week (or $23,660 per year) to $684 per week (or $35,568 per year).  The new federal salary requirements are more stringent than Illinois’s current requirements, and Illinois employers must comply with the more stringent requirements.  The so-called “highly compensated worker” threshold also increased from $100,000 to $107,432 per year.  Importantly, the “duties” requirements outlining the types of work an employee must perform in order to be exempt—notwithstanding the salary requirements—remain unchanged.
  • Chicago Enacts One of the Nation’s Broadest Fair Workweek Ordinances.  Effective July 1, 2020, Chicago will require most large employers (generally 100 or more employees globally) to provide certain workers with at least two weeks’ notice of their schedules, as well as to compensate for last-minute changes.  The ordinance applies to various industries, including building services, healthcare, hotels, manufacturing, restaurants, retail, and warehouse services.  The ordinance also addresses schedule changes, offer of additional work hours, right to rest, right to request flexible work schedule, notice and posting requirements, and record retention, among other things.  A close review of the ordinance is strongly encouraged.
  • Chicago’s Minimum Wage to Increase to $15 Per Hour by July 1, 2021.  Recently, the Chicago City Council approved a proposal to increase the city’s minimum wage to $14 per hour on July 1, 2020 and $15 per hour on July 1, 2021, after which it will continue to increase annually with the consumer price index.  For tipped employees, the tipped minimum wage will increase proportionally at 60% of Chicago’s full minimum wage.  There are some exceptions and extensions for small businesses employing fewer than 20 workers.  These increases place Chicago several years ahead of those required by the State of Illinois, which is not set to hit a $15 minimum wage until 2025.

Given the scope of these changes, it is highly recommended that Illinois employers review their workplace policies and practices to ensure compliance with these new/updated requirements.

Cannabis, Hemp & CBD

Brian Roth

Cannabis, Hemp & CBD
Employment Law