Illinois

Illinois Strengthens Equal Pay Protections

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Illinois has joined the growing list of states implementing requirements intended to avoid pay discrimination. These requirements, which are effective September 29, 2019, include a new salary history ban, a lessening of the evidentiary burden to prove pay discrimination, strengthened anti-retaliation provisions, and additional damages available to employees.  Employers need to act quickly to ensure that candidates aren’t asked about compensation history, and otherwise comply with these new standards.

The 2019 Amendments to the Illinois Equal Pay Act prohibit Illinois employers from:

  • Screening job applicants based on their salary history
  • Requesting or requiring salary history
  • Otherwise requesting or requiring applicable to disclose salary history information
  • Seeking an applicant’s salary history information from current or former employers (unless it is public record).
  • Considering or relying on compensation history voluntarily provided (without prompting) in deciding whether to offer employment , in making an offer of compensation, or in determining future compensation.

The Amendments make clear that employers may engage in discussions with applicants about their expectations with respect to compensation and benefits, but it’s critical that those conversations are forward – not historically – focused.

The amended IL EPA also makes it easier for employees to prove claims of pay discrimination – both because it expands the group of individuals the employee can compare herself to in making her claim, and because it narrows the grounds on which an employer can justify a difference in pay.

Finally, the Amendments beef up the Illinois Equal Pay Act’s retaliation provisions.  The IL EPA previously provided that Illinois employers should not interfere with, restrain or retaliate against employees who wish to inquire about, disclose, compare or discuss their wages or the wages of other employees.  The Amendments go even further though – prohibiting employers from requiring an employee to sign an agreement that would prohibit them from disclosing or discussing their pay information.

Employees bringing claims under the IL Equal Pay Act will still have five years to bring their claims, and they will still be entitled to recover the entire amount of any underpayment with interest.  But under the Amendments, they will now also have the opportunity to seek compensatory damages in certain situations, as well as punitive damages, injunctive relief and attorneys’ fees.

Illinois employers need to take immediate action to ensure that those involved in the hiring process do not inadvertently violate the new salary history ban.  We recommend implementing a policy that requires that only one or two set individuals are authorized to discuss money with candidates, and that those individuals be trained to only ask about expectations, not salary history.  In addition, in light of the soon-to-be reduced standards for proving pay discrimination, Illinois employers should consider conducting a self-audit to identify – and resolve – any pay inequality before a claim arises.

Paid Sick Leave Coming in Q3

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We’re only a few days into Q2, but we wanted to make sure that you’re prepared for a significant legal change that is effective at the beginning of Q3.  Starting July 1st, employees who work in Cook County will have a right to paid sick leave under the Cook County Earned Sick Leave Ordinance, the Chicago Paid Sick Leave Ordinance or both. 

On their surface, the requirements of the Ordinances seem pretty straightforward, leaving many companies to believe that their current PTO or sick leave policy meets the new standards.  However, most of the policies we’ve reviewed to date don’t meet all of the new standards.  This is largely because the Ordinances:

  • Apply to all employees – including part-time employees – who work at least 80 hours in any 120 day period.
  • Allow the employee to carryover up to 20 hours of paid sick leave into the next year (up to 60 for employers that are covered by the FMLA).
  • Require that paid sick leave may be used not just for the employee or a family member’s illness or injury, but also to seek medical care or to care for a family member, in the event that the employee or a family member is the victim of domestic violence, or in the event that the workplace or the employee’s child’s school or place of care is closed due to a public health emergency.
  • Provide that an employer can’t require a note unless the employee is out for more than 3 consecutive days or more.
  • Put limitations on the notice employers can require from employees, including allowing employees to provide last minute notice by phone, email or text.

There are also a couple provisions in the Ordinances that help employers – including capping accrual at 40 hours per year, capping use at 40 or 60 hours per year (depending on the size of the employer and the reason for leave), and not requiring payout on termination.  However, to take advantage of these employer-friendly provisions, it’s important to reflect them in your policy. 

Both Ordinances provide that employees who don’t receive the paid sick time the Ordinances require can file suit and collect triple damages.  We expect Plaintiffs’ attorneys to be out in force looking for potential class actions, so it is important that every company that employs workers in Cook County have their policy reviewed in advance of the July 1st implementation deadline.  Because of the number of sick leave policies we’ve already seen, we are able to review current policies and prepare compliant policies efficiently, on a flat fee basis.

Labor & Employment Practice Group Leader Laura Friedel is available for questions about how these ordinances might affect your company’s policies.

 

Illinois Passes Two New Leave Laws

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pillarsIllinois employers should be aware of two new leave-related laws.

First, the Child Bereavement Leave Act, which took effect on July 29, mandates that Illinois employers with at least 50 employees provide employees who suffered the loss of a child with up to two weeks (10 work days) of unpaid leave. Leave can be taken to attend the funeral, make arrangements necessitated by the death of the child, or to grieve the death. If an employee has already used all of his or her 12 weeks of available FMLA leave, the employer does not need to provide the additional 10 days for reasons related to the death of a child. Employees may elect to substitute available paid leave, but employers may not require them to do so.

Second, the Employee Sick Leave Act, which takes effect on January 1, 2017, provides greater flexibility to family caregivers. The Act requires Illinois employers who provide employees with paid sick leave to allow their employees to use that time to care for the employee’s immediate family members, parents-in-law, grandchildren, or grandparents. Employers must allow employees to use sick leave for caregiving just as they do for their own illness or injury, though employers may cap the amount of sick leave to be used for caregiving responsibilities at what the employee would have earned during 6 months. The Act does not extend the maximum period of leave under the FMLA, regardless of whether the employee receives sick leave compensation during that leave.

Illinois employers should review bereavement and sick leave policies to make sure that they are compliant with this new legislation.