In the past 15 months, employers have juggled many new and unique situations. Indeed, employers have been navigating their way through complex federal, state and local COVID-19 guidelines, while their employees have faced their own challenges related to work, family, and possible health concerns. As more employees return to the office, it may be a good time for employers to conduct a mid-year compliance check-up to identify any areas that need attention as COVID-19 mitigation protocols wane. Here are a few areas that Illinois employers should consider reviewing.
- Employment Application: Many employers do not even use employment applications any more, electing instead to gather information about an applicant from the applicant’s resume and cover letter. Others, however, still require applicants to complete an application, either in writing or through an application dashboard. Whatever the case may be, since September 29, 2019, employers in Illinois have been prohibited from asking about an applicant’s salary history. Thus, if you have been using the same standard employment application for more than a few years, you may have overlooked that “Prior Employment History” section where the applicant lists the salary that he or she received from each prior employer. A similar compliance issue can arise with those convenient application dashboards that may ask the applicant to provide salary history. Relatedly, some applications may still ask about criminal convictions, which state law prohibits at that stage of the hiring process.
- Background Checks: Compliance with the Fair Credit Reporting Act (“FCRA”) always comes to mind when an employer’s background check process is under review, but a review cannot be limited to federal law. Indeed, since earlier this year, Illinois has imposed additional requirements on employers who conduct background checks. Similar to the process required by the FCRA, state law now requires pre-adverse action and adverse action notices, as well as a case-specific review of the circumstances surrounding a criminal record before taking any adverse action based on a criminal record. Because these new state law requirements go beyond what the FCRA requires, Illinois employers who conduct background checks need to ensure that their process and forms comply with state law. Read our prior blog post for more information regarding this legal development.
- On-Boarding Materials: Employers often include as part of their on-boarding materials many documents that employees must sign before they begin employment. Beyond the legally required tax and work authorization documents (e.g., I-9, W-4), those on-boarding materials often consist of a form acknowledging receipt of the employer’s employee handbook, a confidentiality agreement designed to protect the employer’s trade secrets, and certain restrictive covenants to protect the employer’s business interests following the employee’s departure from the company. While the latter certainly may be necessary, employers cannot take a one-size-fits-all approach to restrictive covenants like noncompete and nonsolicitation agreements because enforceability often turns on the circumstances of each case. As we wrote here earlier this week, your existing noncompete and nonsolicitation agreements should be reviewed in the near term in light of expected amendments to the Illinois Freedom to Work Act coming January 1, 2022. While we are at it, employers should review their Confidentiality Agreement as well to see if it conforms to the requirements imposed by the Illinois Workplace Transparency Act (“IWTA”) and has the necessary carve out for disclosures made under the Defend Trade Secrets Act (“DTSA”).
- BIPA Compliance – Timekeeping and Beyond: No post addressing compliance would be complete without mentioning the Illinois Biometric Information Privacy Act (“BIPA”), which has created a slew of litigation in the state and federal courts. Indeed, the importance of BIPA compliance cannot be understated. We previously reported here about the prevalence of this type of litigation and the strict liability nature of it. Since we last reported on it, the litigation has expanded further and into areas that are less obvious than biometric time clocks, such as facial recognition and artificial intelligence. Given the damages available under BIPA, every Illinois employer should carefully examine its practices to ensure that if biometric data will be collected it has made the required disclosures and developed a written policy regarding the retention of that information.
- Employee Handbook: Have you updated your employee handbook recently? Does it have all of the necessary items in it, including a compliant Pregnancy Rights Notice, Discrimination and Harassment Rights Notice, and other policies addressing employer obligations under federal, state and local law, including the Family and Medical Leave Act, paid sick leave, child bereavement leave, and other forms of leave. Have some of your employees relocated out of state, and will continue to work remotely after others return to the office? That type of arrangement could give rise to certain legal obligations under the state or local law where the employee is performing his or her work. Depending on how many employees are working in those other states, employers may add a supplement or addendum to their employee handbook to address laws in other jurisdictions.
- Remote Work Policies: Remote work is here to stay, in some form or another. If you have employees who will be working remotely even when others return to the office, it is important to have a policy outlining expectations along with a written agreement with the employee. In Illinois, that remote-work arrangement can give rise to work-related expenses, which can trigger an employer’s duty to reimburse the employee for all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.
- Harassment Training and Reporting Requirements: Three questions come to mind. First, did you provide the required harassment training in 2020? Effective January 1, 2020, every employer with employees in Illinois was required to provide sexual harassment prevention training to each of its employees on an annual basis. That first set of training had to be completed by December 31, 2020, and additional training must be provided on an annual basis thereafter. The Illinois Department of Human Rights has published IDHR Model Training materials that employers may use. Alternatively, employers can develop their own sexual harassment training materials provided that they cover the minimum areas required by the amendment. Second, have you scheduled the training for 2021? The training must be completed annually, so it may be time to get that training on the calendar for 2021. Third, if needed, have you made your adverse rulings report to the Illinois Department of Human Rights (“IDHR”)? Before July 1, 2021, and each year thereafter, Illinois employers must make a report to IDHR if they have had any final, adverse discrimination or harassment judgments or administrative rulings entered against them in the prior calendar year.
- Workplace Postings: Have you checked your workplace postings recently? With so many employees working remotely, employers should be sure to publish the required posters on their internal intranet, as well as in a conspicuous location in the physical workplace. Review the list of required Illinois posters available on the Illinois Department of Labor web page.
These are but a few of the areas that Illinois employers may want to review before year-end.