Update from Alison Crane, our Legislative Director and law partner with Jackson Lewis Law Firm: Through executive orders and appointments, the Biden administration is already impacting the landscape of labor and employment law. We will follow these developments closely throughout 2021. Click below to view the Jackson Lewis 2021 IL State & Local Employment Desk Guide and other resources:
Feel free to reach out to Alison with any questions. Her contact info is listed below:
Recreational cannabis and drug testing:
Illinois has legalized recreational use of cannabis and amended the Right to Privacy in the Workplace Act to classify cannabis as a "lawful product" under Illinois law. As of January 1, 2020, employers cannot discriminate against employees for using cannabis outside of work. However, employers can continue to prohibit employees from using cannabis on the job, and the new law was recently amended to state that “reasonable” drug testing and related discipline is permissible. The law does not define what is “reasonable,” and employers must determine what is reasonable for their workplace. If your organization conducts drug testing, you should consider the risks of continuing to test for cannabis in various situations. If you plan to continue drug testing, you should review your policy on drug testing to make sure it is compliant with the new law and provide reasonable suspicion training to managers.
Harassment-prevention training now mandatory:
Illinois employers will be required to provide sexual-harassment-prevention training to all Illinois employees annually. The training must, at a minimum, include an explanation of sexual harassment, examples of unlawful conduct, a summary of relevant federal and state statutes, and a summary of employer responsibilities for preventing and addressing harassment. The Illinois Department of Human Rights will be providing "model" training materials that will be compliant with the new law. The law became effective January 1, 2020, so you should plan to conduct your first annual training by year end. If you have not yet planned or budgeted to conduct training for all your Illinois employees in 2020, now is the time to do so.
Additional training requirements for bars and restaurants:
In addition to the general training requirements for all employers noted above, bars and restaurants in Illinois must provide a detailed sexual-harassment policy to all employees in English and Spanish within the first week of employment. The policy must include specific information required by the new law. Bars and restaurants must also provide supplemental harassment-prevention training that is specific to the bar and restaurant industry. The Illinois Department of Human Rights will provide more details about these requirements, which became effective on January 1, 2020. If you operate a bar or restaurant, you should review your harassment policy for compliance with this law, and have it translated into Spanish if it isn't already. You should also plan and budget for the additional required training for all employees in 2020.
Inquiries about salary history banned:
Illinois employers are now banned from asking any applicant or interviewee about his or her salary or wage history. Employers are also prohibited from screening applicants based on salary or wage history, and they may not take past compensation into account when setting pay. The law does not prohibit employers from discussing the applicant's current expectations for compensation - only from inquiring about their pay history. This law became effective on September 29, 2019. Anyone in your organization who is responsible for screening and interviewing Illinois job candidates or setting their pay needs to be made aware of this law. If you haven’t already done so, you should revise all application forms to remove any questions about prior or current pay.
Limits on arbitration agreements with employees:
Illinois employers can no longer require an employee to agree to arbitrate claims as a "unilateral" condition of employment. “Unilateral" agreements will be unenforceable, and an employer and employee can only agree to arbitration if there is "actual, knowing, bargained-for consideration" for the agreement (those terms are undefined in the law). This law applies to new agreements made after January 1, 2020, and existing agreements that are amended after that date. We anticipate that there will be legal challenges to this law. If you currently require new employees to sign arbitration agreements as a condition of employment, you should review your practices with counsel.
Limits on severance and confidentiality agreements with employees:
The Workplace Transparency Act will impact confidentiality clauses in severance, employment and non-compete agreements with Illinois employees. Those agreements may not include a broad confidentiality clause unless they comply with several new requirements. Among others, any such agreement must give the employee 21 days to consider the agreement and 7 days to revoke it after signing. (This is similar to what the law has long required for releases signed by employees who are 40 or older, but it will now apply to any age employee where broad confidentiality is a term of the agreement.) It is very likely that any template you are using for severance agreements will need to be updated, or its confidentiality provisions will be unenforceable in Illinois after that date. You should also review confidentiality and non-disclosure agreements, non-compete agreements and other documents that require confidentiality for compliance with this new law. In some circumstances, overbroad agreements will be void.
Businesses with fewer than 15 employees:
Effective July 1, 2020, businesses with fewer than 15 employees in Illinois can be liable for discrimination and harassment. Currently, Illinois employers with fewer than 15 employees in the state are immune from suit for most forms of discrimination, harassment, and retaliation under the Illinois Human Rights Act. If your business has fewer than 15 employees in Illinois, you should make sure you have compliant policies on equal employment opportunity and harassment prevention on or before July 1, 2020.
New safety requirements for hotels and casinos:
Hotels and casinos throughout Illinois will be required to provide certain employees with "panic button" devices to use in case of an emergency while on the job. Effective July 1, 2020, they will also have heightened requirements for providing anti-harassment policies to their employees, similar to those described for bars and restaurants above. If you operate a hotel or casino, you should be planning and budgeting for providing "panic buttons" to many of your employees next year, and you should also review your harassment policy for compliance before July 1, 2020.
"Predictable scheduling" comes to Chicago:
Chicago employers in several industries now face a host of new burdens and expenses in scheduling their employees. Employers in certain industries and that meet certain size thresholds will now have specific requirements for giving Chicago employees advance notice of their schedules, as well as any changes to their schedules. Employers must also provide employees with extra "predictability pay" when their schedules are changed on short notice, including changing dates and times of shifts, adding hours, cancelling shifts, or sending an employee home early on a shift. Employees also have the right to decline certain hours or shift changes that occur on short notice. All of these requirements are onerous, and a particular challenge is that they apply not only to hourly employees (making $26/hour or less), but also to salaried employees making $50,000 or less a year. Most of these requirements are effective July 1, 2020. If you have employees working in Chicago, you must determine whether you meet the industry and size requirements for this new law. If you do, it will require several steps to make sure your scheduling and payroll systems are compliant with the new law by July 1, 2020, and it is very likely to increase your labor costs starting in 2020.
Obligation to reimburse expenses and losses:
An amendment to the Illinois Wage Payment and Collection Act that became effective on January 1, 2019 requires Illinois employers to reimburse certain expenses and losses incurred by employees. It raises difficult questions as to whether Illinois employees must now be reimbursed for items such as personal cell phones and home Internet service. If you have not reviewed and updated your expense policy in light of this new law, it may not be compliant with Illinois law.
The flood of "biometric privacy" class actions continues:
Finally, we continue to see class-action lawsuits being filed against employers under the Illinois Biometric Information Privacy Act ("BIPA"). This previously obscure law puts many technical requirements on any entity that captures biometric information, such as fingerprints or facial-recognition scans. Many employers who use fingerprint systems with employees for timekeeping, access to secure areas, etc., are completely unaware of this law and not compliant with it, and they have been blindsided by class actions as a result. If you capture any biometric information, such as fingerprints, from your employees, customers, or anyone else in Illinois, and you have not done a careful review for BIPA compliance, a review should be top priority.
You can find more detail on the new laws in the following articles:
If you have questions about any of these new laws or other workplace requirements, please contact our Legislative Director:
- Alison B. Crane
Attorney at Law
Jackson Lewis P.C.
150 North Michigan Avenue
Chicago , IL 60601
- Direct: (312) 803-2560
Main: (312) 787 4949
*This update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis P.C. and any readers. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances.