Now that we have entered 2019, there are a number of changes to Illinois law that employers should be familiar with and update their policies accordingly.
Recent amendments to the Illinois Human Rights Act (IHRA) broaden employee rights and require affirmative actions by employers. Although some of these amendments have already taken effect upon their enactment in 2018, others are only recently operational.
Time to File IDHR Charges
Complainants have historically had up to 180 days after experiencing unlawful discrimination or harassment to file a complaint with the Illinois Department of Human Rights (IDHR). Under the 2018 amendments, complainants now have up to 300 days to file a charge with the IDHR. The increase in time is now consistent with the time allotted to file charges under federal law with the Equal Employment Opportunity Commission.
Opting Out of the IDHR’s Investigation Process
Under the amendments, a complainant may now opt out of the IDHR’s investigative process and bring suit in state court almost immediately. In order to opt out, a complainant must submit a written request to the IDHR within 60 days after receiving notice from the IDHR of his or her right to opt out, and the IDHR has 10 business days thereafter to issue a notice of right to sue. A complainant with a notice of right to sue must bring suit within 90 days of receiving the notice.
Employers are now required to include information concerning an employee’s rights under the IHRA in an employee handbook, including the right to be free from unlawful discrimination and sexual harassment and the right to certain reasonable accommodations. Specifically, the amendment directs employers to post the IDHR notice, “You Have the Right to Be Free From Job Discrimination and Sexual Harassment.” It also requires employers include the same content covered in the notice in their employee handbooks.
In addition to the IHRA, Illinois has enacted several other important changes to existing laws which are now in effect and summarized below:
Reimbursement for Business Expenses
The amendment to the Illinois Wage Payment and Collection Act requires that employers reimburse employees for “all necessary expenses that are incurred by the employee within the employee’s scope of employment and that are directly related to services performed for the employer.” Employee negligence, normal wear, failure to comply with employer reporting requirements and caps are included exceptions. The law provides employees 30 days to report expenses.
Paid Breaks for Nursing Mothers
The Illinois Nursing Mothers in the Workplace Act requires employers to provide paid breaks to nursing parents who need to express milk at work. The amendment also requires employers to provide a “reasonable” break time each time the employee needs to express milk for one year after the child’s birth. While break time used to express milk “may” run concurrently with any break time already provided to the employee, an employer cannot reduce an employee’s compensation for time used for the purpose of expressing milk or nursing. In sum, this means employers must pay employees for time spent expressing milk. An employer is required to provide these breaks unless it can demonstrate that doing so would create an undue hardship as defined by the IHRA.
Military Service Members
The Illinois Service Employment Member Employment and Reemployment Rights Act (ISERRA) expands existing protections for Illinois employees who perform active or reserve military service. ISERRA incorporates protections under the federal Uniform Services Employment & Reemployment Rights Act, and requires that employers: (i) post a conspicuous notice detailing employee rights under the statute; and (ii) average prior performance evaluation scores when evaluating an employee during periods of military-related absence. The required notice is available here.
Equal Pay Protections for African-American Employees
An amendment to Illinois’s Equal Pay Act of 2003 now expands the statute to cover pay discrimination between African-Americans and non-African-Americans. The amendment prohibits employers from paying African-Americans less than non-African-Americans who are performing “the same or substantially similar work.”
Emergency Medical Services Employees Exempt from One Day of Rest Act
Illinois’s One Day Rest In Seven Act (ODRISA) was amended to exempt on-call employees of private companies licensed under the Emergency Medical Services (EMS) Systems Act. ODRISA requires employers to provide employees with at least 1 day of rest in a 7-day period, and that employees who work at least 7.5 continuous hours be provided a 20-minute meal break no more than 5 hours after starting their shift. The recent amendment provides an exemption to EMS employees who are required to be on call for 8-hour periods. Under the amendment, those employees must only be allowed to eat a meal at some point during the 8 hours they are on call.
Proposed legislative changes to IHRA to Monitor in 2019:
In 2018, Gov. Rauner vetoed a bill which proposed amending the IHRA’s definition of “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. The amendment’s proposed definition–exempted from the definition of “employer”–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. This proposed amendment may resurface in the new year with the new governor in office.
Practice Pointer: Since these amendments are now in effect, Illinois employers must promptly review their current policies to ensure compliance with the recent changes to the law. Please contact us if you need assistance bringing your policies up to date.