Employment Law, Publications

The Workplace Just Got More Complex to Manage in Illinois

June 12, 2019

The Illinois General Assembly recently passed multiple bills that will create new laws and amend existing laws that will impact all Illinois employers and employees, if signed by Governor Pritzker. The following laws will create limitations on contract terms and employee handbooks, amend the Illinois Human Rights Act, the Illinois Equal Pay Act, the Victims’ Economic Security and Safety Act, and create annual anti-harassment training requirements for employers. In addition, the legalization of cannabis for recreational use will create concerns for employers that maintain policies prohibiting drug use by employees.

For more information about the potential impact of these regulations, please contact Joseph F. Spitzzeri.

The Workplace Transparency Act (Effective Jan. 1, 2020)

The Workplace Transparency Act (IWTA) is intended to better secure employee’s rights to a workplace that is free of harassment and discrimination by prohibiting certain forms of confidentiality, non-disparagement, and arbitration clauses in employment contracts and polices, unless certain statutory requirements are met. Under the IWTA, no contracts or other documents can include provisions that prohibit potential, current, or former employees from reporting allegations of “unlawful conduct”, such as discrimination and harassment, to federal, state, or local officials for investigation. This rule will apply to any form of employment contract, including formal employment agreements, executive compensation agreements, non-compete, non-solicit and confidentiality agreements, and separation agreements.

Illinois Equal Pay Act Amendments (Effective 60 Days After Signed)

The Illinois Equal Pay Act would prohibit employers and employment agencies from requesting or requiring job applications to disclose prior wage, salary, benefit or other compensation history as a condition of the application process or as a condition of employment. Employers would also be prohibited from communicating with job applicants about their expected wages, salary, benefits and other compensation. Employers may need to revise job applications, job posting boards, and recruiting and interview practice in accordance with this law.

Human resources professionals, supervisors, or other employees who are allowed access to such information may be directed to keep employees’ wages, salary, benefits and other compensation confidential. Employees may file lawsuits in State court to enforce these new requirements, seeking “special damages” up to $10,000 or actual damages if greater than $10,000.

Illinois Human Rights Act Amendments (Effective Jan. 1, 2020)

The Illinois Human Rights Act (IHRA) would be amended to further secure employees’ rights to a workplace that is free of harassment and discrimination. The IHRA would apply to any employer with one or more employees within Illinois during twenty or more calendar weeks in the current year or year preceding the alleged violation. The IHRA has also been amended to define “harassment” more broadly than under federal law, as any “unwelcome conduct” that “has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile or offensive working environment.”

Every restaurant, bar, or coffee shop must have a written sexual harassment policy given to all employees within the first calendar week of employment. The policy must include notice to the employee on how to file charge with the IDHR and EEOC.

The Victim’s Economic Security and Safety Act (Effective Jan. 1, 2020)

The Victim’s Economic Security and Safety Act (VESSA) would be amended to expand the protections to victims of domestic and sexual violence, sexual assault, and stalking to victims of gender violence. Employers would be required to provide employees who are victims of domestic, sexual and now, gender violence or whose family members are victims, with up to twelve weeks of job-protected leave in a year, or other workplace accommodations.

Hotel and Casino Employee Safety Act (Effective July 1, 2020)

Hotel and Casino Employee Safety Act is intended to protect employees of hotels and casinos in Illinois from sexual harassment and assault. It would require industry employers to adopt and comply with anti-harassment policies meeting certain statutory requirements, including complaint reporting procedures, temporary work assignments, and paid time off to file police reports and/or to testify. Employees may file lawsuits directly in State court to enforce the law.

Cannabis Regulation and Tax Act (Effective Jan. 1, 2020)

The Cannabis Regulation and Tax Act will allow adults in Illinois to possess and consume cannabis. The Cannabis Act will permit employers to adopt and enforce “reasonable” and non-discriminatory zero tolerance and drug-free workplace policies. This includes policies on drug testing, as well as prohibiting the possession or use of cannabis in the workplace or while on-call.

The Cannabis Act amends the Illinois Right to Privacy in the Workplace Act to provide that recreational and medical marijuana are legal products that must be treated like alcohol and tobacco. Employers will not be allowed to base an employment decision on whether and employee or applicant lawfully uses cannabis off-premises and during nonworking or non-call hours.

Illinois Artificial Intelligence Video Interview Act

Pending Governor Pritzker’s signature, the Illinois House and Senate have passed the Illinois Artificial Intelligence Video Interview Act, which prohibits employers in Illinois from using artificial intelligence as a means to evaluate job applicant’s video interviews. In order to use artificial intelligence to evaluate a video interview, an Illinois employer will be obligated to notify the applicant, explain how their artificial intelligence works, and obtain consent.  The Act also prohibits employers from sharing applicant video interviews, and requires employers to delete the video interviews within 30 days of request by the employee.

For more information about the potential impact of these regulations, please contact Joseph F. Spitzzeri.

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