Employers Beware: Slew of New Illinois Employment Laws Passed and Poised to Take Effect
at FordHarrison
Executive Summary: For this entire 2023-2024 Illinois legislative term, we have been closely watching dozens of proposed employment bills make their way through the Illinois Legislature. In the weeks of May 8 and 15, 2023, seven of these bills passed both houses and await Governor J.B. Pritzker’s signature, which we have no doubt will occur. There is also a possible Biometric Information Privacy Act (BIPA) reform bill in the works, though very watered down compared to the versions proposed by several Republican legislators. We will first focus on the bills that have passed both houses. We have prepared a separate legal alert regarding HB1363, which makes significant changes to the Illinois Gender Violence Act, which can be accessed here.
Amendments to Equal Pay Act: HB3733
EEO-1 Reports No Longer Allowed for Equal Pay Act Registration Certification
If HB3733 is enacted, employers who are required to seek equal pay registration certificates (i.e., employers with 100 or more employees in Illinois) will be required to submit a list of all employees during the past calendar year, separated by gender, race, and ethnicity as reported in the employer’s most recently filed EEO-1 report, along with other required formation (such as county where the employee works, dates of employment, etc.). Employers will no longer be able to choose between providing that list or simply producing their most recently filed EEO-1 reports. Thus, employers will want to immediately take steps to compile and continually add to employee lists containing the required information so that it is readily available when the time comes to register.
Employers Must Publish Pay Scale in All Job Postings under Equal Pay Act
In HB3129, the Illinois Equal Pay Act (IEPA) will be amended to provide that all employers with 15 or more employees and with employees employed in Illinois, must include the “pay scale and benefits” for a position in any specific job posting. Importantly, it is unclear in HB3129 whether the employer must have 15 or more employees in Illinois, or 15 or more employees anywhere, for the amendment to apply. The amendment specifies, however, that it only applies to positions that will either 1) be physically performed, at least in part, in Illinois, or 2) that will be performed outside of Illinois but the employee reports to a supervisor, office, or other work site in Illinois. “Pay scale and benefits” means the wage or salary, or the wage or salary range, and a general description of benefits and other compensation, including but not limited to bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position. This new requirement, when enacted, would be effective January 1, 2025.
From a practical standpoint, the amendment provides that inclusion of a hyperlink to a publicly viewable webpage that includes the pay scale and benefits information satisfies the requirement. Alternatively, if the employer’s website has an easily accessible and publicly available place where the information is posted and the posting directs people to that location on its website, this will also satisfy the posting requirement. If an employer engages a third party to announce, post, publish, or otherwise make known a job posting, the employer must provide the pay scale and benefits information to that third party and the third-party must include the information. The third party will be held liable for the failure to include the information unless it can show the employer did not provide it.
Importantly, the amendment does not prohibit the employer from asking the applicant about his or her wage or salary expectations for the position for which the applicant is applying.
The amendment to the IEPA also provides that an employer shall announce, post, or otherwise make known all opportunities for promotion to all current employees no later than 14 days after the employer makes an external job posting for the position. If the employer does not post the job in a manner available to the applicant, then the employer (or employment agency) must disclose to the applicant the pay scale and benefits to be offered for the position prior to any offer or discussion of compensation, and if the applicant requests. The amendment, if passed, will apply to any job postings made after the effective date of the amendment.
Alleged violations of the job posting requirements will be investigated, upon receipt of a complaint, by the Illinois Department of Labor. Complaints must be raised within one year after the date of the violation. Penalties for a job posting or batch of postings that are active at the time the Department issues a notice of violation for violating the posting requirement, are as follows. A first offense following a cure period of 14 days to remedy the violation will result in a fine up to $500 (at the Department’s discretion). A second offense, following a cure period of seven days to remedy the violation, will result in a fine up to $2,500 (also at the Department’s discretion). A third offense will receive no cure period and will result in a fine up to $10,000 (at the Department’s discretion). If a company receives a violation after having had a third offense, penalties shall be automatic without a cure period for five years. For violations that are not active at the time the Department issues its notice of violation, the penalty for a first offense is up to $250 (with discretion), and the remaining offenses have the same penalty as if the posting was still active.
New Requirements to be Imposed on Employers Using E-Verify or Similar Services
SB1515 amends the Right to Privacy in the Workplace Act and, when enacted, will impose new restrictions and requirements on employers who use the federal E-Verify system (or any employment eligibility verification systems) to ensure employees are legally able to work in the United States. The amendment provides that if an employer receives notification from the Social Security Administration (SSA) of a discrepancy between an employee’s name or social security number and the SSA’s records, and the employer takes any adverse action, the employer must provide the employee with: A) the specific document or documents that are deemed to be deficient and the reason why they are deficient; B) instructions on how the employee can correct the deficient documents; C) an explanation of the employee’s right to have representation present during the verification or re-verification process; and D) an explanation of any other rights the employee may have with the verification or re-verification process.
Importantly, the employer must also grant the employee no less than 30 days of unpaid leave to correct any verification discrepancy. If the unpaid leave period has expired, and the employee can reasonably demonstrate the ability to remedy the discrepancy, the employer and employee may agree to extend the leave period an additional 30 days. The employer can discharge the employee only if no agreement is reached or the additional 30-day period has expired.
The amendment also provides that if the employer receives notification from any federal or state agency, including but not limited to the SSA or Internal Revenue Service, of any discrepancy, the employee also has certain rights and protections. The employee can choose which work authorization document to present during the verification or re-verification process, and also can choose to be represented by counsel in any meetings, discussions, or proceedings with the employer.
If the employer receives notification that any prior discrepancy has been remedied, the employer must return the employee to his or her former position without loss of seniority, compensation rate or salary, or benefits, and may not consider the discrepancy in future promotion decisions or continued employment considerations.
Illinois Human Rights Act to Give IDHR Right to Intervene in Litigation
HB3135 provides that if a complainant files a complaint with the Illinois Human Rights Commission (IHRC) or in circuit court, the complainant is required to provide the chief legal counsel of the Illinois Department of Human Rights (IDHR) with notice within 21 days of filing the complaint. The amendment will give the IDHR the right to petition the IHRC to intervene in any action filed by the complainant at the IHRC, whether the complainant requests it or not. The IDHR may intervene if the IHRC determines that: 1) the IDHR has an interest different from one or more of the parties; 2) the expertise of the IDHR makes it better suited to articulate a particular point of view; or 3) the representation of the IDHR’s interest by existing parties is or may be inadequate and the IDHR will or may be bound by an order or judgment in the action. Thus, this is a very low bar for the IDHR to meet in order to be able to intervene.
In addition, HB3135 provides that if a complainant has filed suit in state or federal court, the Illinois Attorney General may seek to intervene in the lawsuit on behalf of the IDHR (after the IDHR certifies that the case is of general public importance).
Transportation Benefits Program Act to Require Pre-Tax Deductions for Certain Public Transit
With HB2068, the Illinois Legislature creates the Transportation Benefits Program Act (TBPA). The TBPA provides that “covered employers” must provide a pre-tax commuter benefit to “covered employees” which must allow employees to use pre-tax dollars to purchase a transit pass on “public transit” via a payroll deduction, such that the costs for such purchases may be excluded from the employee’s taxable wages and compensation up the maximum amount permitted by federal law.
The TBPA defines a “covered employer” as one with 50 or more covered employees, if the employer is located in a specified geographic area. The geographic area includes all of Cook County, and within one mile of fixed-route transit service in a litany of townships in surrounding counties (listed out in the bill), presumably based on which locations have or are near train or bus stations. (We note that the original version would have applied to employers of all sizes, and also allow the deduction to be used for parking at or near the business or a commuter parking area.) The TBPA defines a “covered employee” as a person who performs at least 35 hours of work per week for compensation on a full-time basis. The benefit must become available no later than the first regular pay period after 120 days of employment. Under the Act, “public transit” is either the Chicago Transit Authority or the Regional Transportation Authority.
The TBPA further provides that nothing in the Act shall be deemed to interfere with, impede, or diminish the right of employees to bargain collectively with their employers, or affect the validity of or change the terms of bona fide CBAs in force on the effective date of the Act. After the effective date, requirements of the Act may be waived in a bona fide CBA if the waiver is set forth explicitly in the agreement in clear and unambiguous terms.
Civil Rights Remedies Restoration Act: Automatic and Minimum Penalties for Emotional Distress Under Virtually All Anti-Discrimination Laws for Employers Receiving Federal Funding
With HB2248, the Illinois Legislature has created the Civil Rights Remedies Restoration Act (CRRRA). The Legislature justified the passage in response to and to counteract the effect of the 2022 U.S. Supreme Court decision in Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562 (2022). The Supreme Court in Cummings held that awarding damages for emotional distress in cases involving the Rehabilitation Act of 1973 and the Affordable Care Act violates the Spending Clause statutes at issue. The Illinois Legislature believes that the Cummings decision will likely also impair the availability of emotional distress damages under other federal civil rights statutes. The Legislature clearly believes that emotional distress must be allowed in every civil rights statute in order to make those victims of discrimination whole.
As a result, the CRRRA provides that any violation of the Rehabilitation Act or the Affordable Care Act, as well as Title II of the Americans With Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act (ADEA), Title IX of the Education Amendments Act of 1975, Title VI of the Civil Rights Act of 1964, and any other federal statute prohibiting discrimination under a program or activity receiving federal financial assistance, constitutes a violation of the CRRRA. In the event of a violation of the CRRRA, the successful plaintiff is entitled to all economic and non-economic damages (and attorney’s fees and costs) determined by the finder of fact, and in no case shall that amount be less than $4000. Enforcement of this law can occur in any Illinois court.
Personnel Records Review Act –Records to be Emailed upon Request
HB3733, which as discussed above, included some changes to the Equal Pay Act, also provided some minor amendments to the Illinois Personnel Record Review Act (IPRRA). The amendment provides that if an employee requests his or her personnel records to be provided by email, the employer must do so. Likewise, the employer must provide paper copies and mail the records (at the employee’s expense), if requested.
Illinois Laws to be Posted Online or Emailed to Remote Workers
HB3733 also includes amendments to several Illinois employment laws that will require employers with employees who do not regularly report to a workplace, such as remote workers or workers who travel for work, to either post all of the required information under the Illinois Minimum Wage Law, the Illinois Wage Payment and Collection Act, and the Child Labor Law, to the employer’s website or intranet, or email a copy of the laws to said workers.
