2021 Employment Law Spotlight: Chicago and Illinois

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Last year, several major employment laws were enacted in the State of Illinois, and specifically in the City of Chicago. Employers in Illinois and/or Chicago should be reminded of these laws for 2021. Here are just a few of the highlights:

  • The Illinois Human Rights Act (“IHRA”) was amended to cover “single-employee” employers and to require employers to report to the Illinois Department of Human Rights (“IDHR”) all adverse judgements and rulings relating to harassment and discrimination;
  • Employees covered by the Chicago Fair Workweek Ordinance now have a private right of action against employers for violations of the law;
  • Chicago Enacts COVID-19 Anti-Retaliation Measures; and
  • Class action lawsuits under the Illinois Biometric Information Privacy Act (“BIPA”) are expected to continue to rise in 2021.

Expansion of IHRA Coverage and New Mandatory Reporting Obligations for Employers

Effective July 1, 2020, Illinois employers with one or more employees are covered by the IHRA. Previously, the IHRA applied only to businesses with 15 or more employees, except in cases of sexual harassment, pregnancy discrimination, and disability discrimination, where the definition was one or more employees. The new definition means that smaller employers will now be subject to race, national origin, gender, sexual orientation, religion, and age discrimination claims under the IHRA.

Additionally, before July 1, 2021, and each subsequent year thereafter, Illinois employers must report to the IDHR all adverse judgments and administrative rulings from the preceding calendar year. An “adverse judgment or administrative ruling” is defined as any final and non-appealable judgment that finds sexual harassment or unlawful discrimination, where the ruling is in the employee’s favor. While employer reports will be treated as confidential and are exempt from the Illinois Freedom of Information Act, the IDHR will publish an annual report aggregating the number of rulings for each protected class, omitting any identifying information about employers.

Private Right of Action for Violations of Chicago’s Fair Workweek Ordinance

Although Chicago’s Fair Workweek Ordinance (“the Ordinance”) took effect on July 1, 2020, the City of Chicago delayed the effective date for an employee’s private right of action under the law until January 1, 2021, in response to the COVID-19 pandemic. The Ordinance requires Building Services, Healthcare, Hotels, Manufacturing, Restaurants, Retail, and Warehouse Service employers to, among other things, provide employees with advance notice of their work schedules and to compensate employees for last-minute schedule changes.

Employees are covered by the Ordinance if they work in one of seven covered industries and make less than $26/hour or $50,000/year. Covered employers are defined as having at least 100 employees globally (250 employees globally for non-profits, or 250 employees with at least 30 locations globally for restaurants). The Ordinance requires employees to first exhaust their administrative remedies with the City of Chicago Department of Business Affairs and Consumer Protection before initiating a civil action against an employer. An employee who prevails in a civil action is entitled to an award of compensatory damages resulting from a violation of the ordinance, including litigation costs, expert witness fees, and reasonable attorneys’ fees.

Chicago’s COVID-19 Anti-Retaliation Law

The Chicago Anti-Retaliation Ordinance (“Anti-Retaliation Ordinance”) prohibits an employer from demoting or terminating a “covered employee” for complying with an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, or, in the cases of (2), (3), and (4) below, a treating healthcare provider requiring an employee to:

  1. Stay home to minimize the transmission of COVID-19;
  2. Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  3. Obey a quarantine order issued to the covered employee;
  4. Obey an isolation order issued to the covered employee; or
  5. Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.

Employers are also prohibited from taking any adverse actions against an employee for caring for someone subject to such orders as identified in (1), (2), or (3) above.

The Anti-Retaliation Ordinance defines “covered employee” as any employee “who, in any particular two-week period, performs at least two hours of work for an Employer while physically present within the geographical boundaries of the City.”

Employers who violate the Anti-Retaliation Ordinance will be subject to citations of up to $1,000 for each violation per day. Additionally, employees prevailing in a civil action under the Anti-Retaliation Ordinance: reinstatement to their previous position or an equivalent position; damages equal to three times the full amount of wages lost; any other actual damages caused by the retaliatory action; and costs and reasonable attorney’s fees.

Illinois BIPA Class Actions Will Continue to Rise in 2021

Finally, as the number of BIPA class-action lawsuits continue to soar in 2021, employers that use biometric information (e.g., fingerprints, facial recognition, voice, or retina scans) for attendance and/or security purposes should ensure its compliance with the procedural requirements of BIPA. Illinois’ BIPA is the most plaintiff-friendly biometric law of its kind in the nation, providing employees with a private cause of action for liquidated damages of up to $5,000 for each willful violation and attorneys’ fees. BIPA class actions have been filed against Facebook, Southwestern Airlines, Google, and other large and small companies.

Further, Illinois employers that engaged in, or that plan to engage in, COVID-19 screening programs should determine the privacy and security implications of applying such measures and whether they can be implemented without violating BIPA. Just recently Amazon was hit with a BIPA class-action, alleging that the company’s COVID-19 screening measures, which include facial recognition scans and temperature checks, violate the biometric privacy rights of Amazon employees. Although resolution of the Amazon class-action is pending, the case is a reminder to all employers to make sure that any COVID-19 related screenings comply with the procedural requirements of BIPA.

Kelley Drye’s comprehensive treatment of Illinois’ BIPA can be found here.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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