On January 1, 2015, Illinois Human Rights Act amendments providing additional rights to pregnant employees will take effect. (See our previous post for more in-depth information)
As previously mentioned, the law will require some immediate steps by employers. Employers must post a government-provided notice where other mandated posters are displayed, (download here in English and Spanish), and update employee handbooks with a summary of pregnant employees’ new rights.
Illinois might be headed toward two minimum wages—one for the City of Chicago and another for the rest of the state. Today, the Chicago City Council unanimously voted to increase Chicago’s minimum wage from $8.25 to $13.00 an hour by 2019. The Council’s vote was over the objection of both local businesses on the one hand, and labor advocates and political opponents on the other, who said the increase was not high or fast enough.
The move is not unique. Seattle made headlines in June when it voted to raise its minimum wage to $15.00 an hour, the highest in the country, in what seems to be turning into a national trend toward significant minimum wage hikes at the local level.
In Springfield, business interests are pressing state lawmakers to prevent Chicago from having a higher minimum wage than the rest of the state. At the same time, supporters of a plan to increase the statewide minimum wage to $10.00 an hour pushed for more votes in the Illinois House during their final 2014 session.
It remains to be seen if there are enough votes in Springfield, either to limit Chicago’s minimum wage increase, or to push for a similar statewide increase. In the meantime, employers in Illinois with employees in Chicago and in other parts of the state will need to adjust to the different wage levels.
Governor Quinn signed two laws in August that impact Illinois employers — one that expands protections for pregnant applicants and employees and one that sets new requirements for payroll debit cards.
First, under amendments to the Illinois Human Rights Act, employers will be required to provide reasonable accommodations to pregnant applicants and employees who request them. Examples of pregnancy accommodations that are listed in the amendment include time-off, more frequent or longer breaks, seating, transfer to a less strenuous position or light duty, acquisition or modification of equipment, job restructuring and assistance with manual labor. Under the amendment, it is the employer’s burden to establish that the accommodation would be an undue hardship. Also important, the amendment expands the prohibition on pregnancy discrimination so that it will apply to any employer with one or more employees (rather than only those with 15 or more employees) and prohibits employers from requiring pregnant employees to use an accommodation they didn’t request. Finally, the amendment requires employers to post a notice regarding pregnancy accommodation rights. These new provisions take effect on January 1, 2015.
Second, under an amendment to the Illinois Wage Payment and Collection Act, employers are explicitly permitted to use payroll debit cards – often termed “paycards” – but must meet certain requirements. The requirements for paycards set out in the amendment include clearly communicating in writing that use of the paycard is voluntary, obtaining the employee’s voluntary written or electronic consent to use a paycard, providing at least one alternative method of payment to employees, providing employees with an itemized list of paycard fees, and providing employees with a way to obtain all of their wages without fees (and a description of how to do so). The amendment also prohibits paycards that assess certain fees or are linked to any form of credit. These new paycard provisions take effect on January 1, 2015. Employers that use paycards should carefully review the terms of their current paycards to ensure they meet the new Illinois standards and prepare the documents required by the amendment so that they may be issued before year end.
Effective January 1, 2015, most Illinois employment agencies and private employers will be prohibited from asking about applicants’ criminal background until the applicant reaches the interview stage of the hiring process, or, if there is no interview, until the applicant has been given a conditional offer of employment. The Job Opportunities for Qualified Applicants Act (House Bill 5701) provides very limited exceptions. For most Illinois employers, the Act will require changes to the application process.
The Illinois Job Opportunities for Qualified Applicants Act is the latest in a surge of “Ban the Box” legislation around the country. Illinois becomes the 5th state to enact such “Ban the Box” legislation that covers private employers, joining Hawaii, Massachusetts, Minnesota and Rhode Island. Seven cities (Baltimore, Buffalo, Newark, Philadelphia, Rochester, Seattle, San Francisco) also have similar provisions.
Illinois employers and employment agencies should review application materials to remove questions about criminal history by the end of the year.
In Phillips v. Continental Tire, the federal Court of Appeals sitting in Chicago confirmed that to prove retaliatory discharge under Illinois law, an employee must establish that he was terminated “primarily in retaliation for” his protected activity. The court found that it wasn’t enough that the employee’s protected activity (here, filing a worker’s comp claim) set into motion a string of events that ended in termination.
Continental Tire’s policy required that an employee submitting a worker’s compensation claim to submit to a drug test and provided that failure to do so would result in termination. Jeff Phillips tried to file worker’s compensation but refused to submit to a drug test. Continental Tire terminated his employment for refusing the drug test and Phillips sued claiming retaliatory discharge on the theory that because the drug test was triggered by his worker’s comp claim, they were “causally related.” The Seventh Circuit rejected Phillips’ argument, finding that “[c]ausation requires more than a discharge in connection with filing a claim” — “[t]o establish causation, the employee must affirmatively show that the discharge was primarily in retaliation for [his] exercise of a protected right.”
We’ve recently seen a small uptick in worker’s compensation retaliation claims, so the Phillips decision is a helpful reminder of the high bar for establishing retaliatory discharge. Still, employers should take extra care in terminating an employee who has filed a worker’s comp claim or engaged in other protected activity.
On February 21, 2014, in Bartlow v. Costigan , the Illinois Supreme Court unanimously upheld the constitutionality of the Employee Classification Act (ECA).
The ECA is aimed at cracking down on misclassification of employees as independent contractors in the construction industry. The ECA deems an individual performing services for a “contractor” as an employee of the contractor unless the individual can meet certain specific tests (e.g., is the individual free from the direction and control of the contractor? Is the service performed by the individual outside the usual course of services performed by the contractor?). A “contractor” is any person or firm “who engages in construction.” One of the complaints from employers about the ECA is that “construction” is broadly defined to include everything from “maintenance” and “landscaping” to more traditional construction tasks such as “remodeling,” “wrecking,” and “refurbishing.”
The Bartlow case hinged on whether or not the ECA was impermissibly vague and violated procedural due process rights. After years of back and forth in lower courts, the Supreme Court rejected all of the plaintiff’s constitutional challenges. With regard to the plaintiff’s vagueness argument, the court held that “a person of ordinary intelligence could understand the conduct prohibited under the act” and that recent amendments to the law essentially rendered the plaintiff’s other concerns moot.
Employers who were hoping the law might be repealed or modified by the state legislature or overturned by the Illinois Supreme Court need to recognize that it is here to stay. If your business is connected in any way to the construction industry, as broadly defined under the statute, you need to scrutinize your use of independent contractors to ensure it is in compliance with the ECA.
The Illinois legislature passed landmark legislation on November 5, 2013 that will legalize same-sex marriages in the state (The Religious Freedom and Marriage Fairness Act
). The bill is currently scheduled to be signed by Governor Quinn on November 20th and to go into effect on June 1, 2014. One state legislator has proposed an amendment that would make the legislation effective earlier in the year, but that amendment has not yet been acted upon. Employers should begin to prepare for changes in the workplace resulting from the legislation. For example, the definition of “spouse” in the Family and Medical Leave Act will now apply to same-sex spouses who reside in Illinois (see our earlier post on the FMLA guidance on this topic). Spousal benefits under medical plans and retirement plans will now be applicable to Illinois same-sex spouses and Illinois same-sex spouses will have COBRA rights. Employers should review plans, policies, forms and procedures to make sure they contemplate equal treatment for same-sex spouses. Also, keep in mind that Illinois will continue to permit couples (whether same-sex or opposite-sex) to choose a civil union over a marriage. Accordingly, to the extent federal law recognizes marriages but not civil unions, employers will need to continue to recognize this distinction in their benefit administration.
This year, LP’s Labor & Employment attorneys tried something different with our annual “Employment Law Update” and hosted the program as a webinar. The new format allowed us to record this year’s program and make it available for all our blog friends, colleagues and clients who were unable to participate. LP labor and employment attorneys Peter Donati, Laura Friedel and Kenneth Kneubuhler highlighted recent updates in labor and employment law and tips to keep your workplace practices current.
You can find the recording here and the presentation materials here.
To give you an idea of what topics are covered in this year’s “Employment Law Update” here are the topics we discussed:
•The impact of recent Supreme Court decisions on supervisor liability and the burden of proof for retaliation claims
• Trends involving arbitration agreements: Will they prevent class claims? Should your business be using them?
• Same sex marriage: How it affects employee rights under the FMLA and benefit plans
• Recent Illinois cases involving non-compete agreements. Will your agreements be enforceable when you need them?
• New developments at the National Labor Relations Board that affect both union and non-union workplaces
• How to properly use background checks to avoid scrutiny by the EEOC and avoid violating state laws
• Current wage and hour issues, including developments involving interns and independent contractors
• Other important state law trends, including laws on concealed weapons, medical marijuana, and social media passwords
In July, Illinois passed legislation permitting the concealed carry of firearms (The Illinois Firearms Concealed Carry Act, 430 ILCS 66). Under the legislation, employees with concealed carry gun permits are allowed to bring their guns with them to work unless 1) they work in a location where concealed carry is specifically prohibited under the statute, such as a school or hospital, or 2) they work in a building where the owner has posted a specific 4 inch by 6 inch sign prohibiting guns on the premises. The Illinois State Police recently released an example of the sign that must be used by building owners in this second situation. Employers that want to keep guns out of their workplaces and that own the buildings where their workplaces are located should post the approved sign at all entrances. Employers that do not own the buildings where their workplaces are located should work with the building owners to have the signs posted. Also, employers need to remember that although they may be able to keep employees from bringing guns into their workplaces by following these steps, the employees are still permitted by the legislation to keep their guns in their vehicles in the employers’ parking lots.
Each year, LP’s Labor & Employment Group is pleased to provide a short checklist of steps that all companies should consider taking in order to measure their readiness for the coming year. We hope that you find this 2013 Labor and Employment Law Checklist to be a helpful guide to best practices for the year ahead. Here are this year’s checklist topics:
See the full checklist here.
This checklist is for informational purposes only. It is not intended to and does not create an attorney/client relationship.
The Employment Lawyers 