Important Changes Coming for Illinois Employers

by Faegre Baker Daniels

[author: Ruben Gonzalez]

Illinois Governor Pat Quinn has hundreds of laws sitting on his desk awaiting signature. Below are summaries of laws that he has signaled he will sign and that have ramifications for Illinois employers:

Accommodations Under New "Pregnancy Fairness"

Beginning January 1, 2015, Illinois state law may require Illinois employers employing one or more employees to provide "reasonable accommodations" to part-time and full-time employees, probationary employees, new employees, and job applicants facing "pregnancy and childbirth related issues or medical or common conditions related to pregnancy or childbirth." 

House Bill 8 amends the Illinois Human Rights Act, which already prohibits discrimination and adverse treatment on the basis of pregnancy or childbirth. The proposed legislation expands workplace protections to job applicants and new employees experiencing "pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth." The legislation also expands workplace protections by requiring employers to provide "reasonable accommodations" to all employees experiencing "pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth." Failing to provide "reasonable accommodations" will constitute a civil rights violation under the Illinois Human Rights Act. Additionally, the bill includes new notification requirements and prohibits employers from taking adverse actions against employees and job seekers wanting "pregnancy and childbirth" related workplace protections or adjustments.

House Bill 8 defines reasonable accommodations as requiring employers to provide "reasonable modifications" to the job application process and to provide affected employees a "reasonable manner" in which to perform their job so long as the accommodations do not place an "undue hardship" on the employer. For example, the proposed legislation requires employers to improve work place accessibility for affected employees by modifying or purchasing new equipment and offering modified work schedules. The proposed legislation embraces specific examples, including but not limited to:

  • Additional and longer bathroom breaks
  • Private non-bathroom space
  • Additional seating areas
  • Temporary job transfers to less strenuous or hazardous positions
  • Time off to recover from pregnancy related issues
  • Part-time or modified work schedules

The amendments specifically state that an employer may not require a pregnant employee to take a leave of absence if another reasonable accommodation can be provided. The amendments also provide for reinstatement of a pregnant employee to the same or an equivalent position unless it would be an undue hardship.

Additionally, the proposed legislation requires employers to inform employees of these new rights by posting bulletins in visible locations on the employer's premises. Failing to inform employees of their new rights will constitute a violation. The Illinois Department of Human Rights will make the proposed notices available for employers to download from their website.

Finally, the proposed legislation prohibits employers from taking retaliatory action against an employee or potential employee who requests or attempts to request a reasonable accommodation, or uses or attempts to use a reasonable accommodation.

Unpaid Interns Protected Against Sexual Harassment

The Illinois Humans Rights Act prohibits sexual harassment in the workplace and requires employers to investigate claims of sexual harassment impacting employees, among other requirements. Following a recent trend to increase protections for unpaid interns, Illinois law may soon require the employers to protect unpaid interns against sexual harassment.

On May 28, 2014, the Illinois General Assembly approved House Bill 4157 expanding the Human Rights Act's definition of "employee" to include unpaid interns. Specifically, House Bill 4157 amends the definitions section of the Illinois Human Rights Act by explicitly stating that for purposes of sexual harassment, "‘employee' also includes an unpaid intern." 

The proposed legislation defines an unpaid intern as a person performing work under a number of circumstances, including where an employer is not committed to hiring the intern at the conclusion of the internship and where the employer and intern agree that the intern will not be paid. Next, the proposed legislation defines the type of work performed by an unpaid intern to include:

  • Work performed that supplements training
  • Work performed that provides beneficial experience for the intern
  • That the work performed by the intern does not displace regular employees
  • The work performed is performed under close supervision of existing employees
  • The work performed provides no immediate advantage to the employer's operations and may even impede the employer's operations  

Illinois is one of only a handful of states that protects unpaid interns. Unpaid interns are not protected under Federal law.

Amendment Clarifies Employer Use of Payroll Cards

Currently, most employers provide their employees with either a live paycheck or direct deposit. Some employers use payroll cards, which are essentially debit cards. These payroll cards have come under increased scrutiny as of late, and Illinois' General Assembly decided to act. 

House Bill 5622 would amend Illinois' Wage Payment and Collection Act to prohibit employers from: (1) requiring employees to accept payroll cards as a method of wage payment; and (2) imposing certain fees on employees who choose to accept payroll cards. Employers must offer employees wage payment options other than payroll cards. If the employee elects to have a payroll card, the employer must obtain the employee's voluntary consent to receiving wages via a payroll card. 

Prohibited fees include such things as participation fees, declined transaction fees and inactivity fees for a certain period of time. The payroll card also cannot be linked to any form of credit, such as a loan against future pay or overdraft fees.

The amendments also require employers to meet certain requirements if they intend to use payroll cards, including providing:

  • "[A] clear and conspicuous written disclosure" regarding the terms and conditions of the payroll card, specifically detailing fees that may be deducted by the card issuer or the employer and explaining that a third party may assess its own transaction fees in addition to those assessed by the card issuer and employer
  •  "[A]t least one method of withdrawing" the employee's full wages from the card every two weeks "at no cost to the employee, at a location readily available to the employee"
  • One "transaction history" each month
  • Options for obtaining the card balance without incurring a fee

Assuming Governor Quinn signs the legislation, House Bill 5622 would take effect January 1, 2015.

Limited Use of Criminal Background Checks in Hiring

Just two days before the close of the legislative session, the Illinois General Assembly passed the Job Opportunities for Qualified Applicants Act (JOQAA). Effective January 1, 2015, employers would be prohibited from inquiring about an applicants' criminal background until the applicant "has been determined qualified for the position and notified that the applicant has been selected for an interview." If no interview is necessary, the employer may not inquire about criminal backgrounds until after a conditional offer of employment is made.

The JOQAA would not apply to three types of positions:

  • Positions where applicants with certain criminal convictions are prohibited from being employed by federal or state law
  • Positions where an applicant's conviction would disqualify him/her from obtaining a necessary bond to become employed
  • Positions where licensing under the Emergency Medical Services Systems Act is required.

Nothing in the JOQAA prevents employers from advising applicants "in writing of the specific offenses that would disqualify an applicant from a particular position due to federal or state law or the employer's policy."

The Illinois Department of Labor is responsible for investigating and enforcing the JOQAA, and there is no private right of action under the JOQAA. Regardless, employers must be mindful that the JOQAA does not undermine protections already in place under the Illinois Human Rights Act regarding discrimination based on criminal convictions.

Action to Be Taken

Governor Quinn has signaled support for these changes to Illinois law and is expected to sign all the proposed legislation soon. Because these are significant changes to Illinois law, employers should review current policies and practices, and begin making changes to employee handbooks and other documents governing pregnancy accommodations, anti-harassment, payroll documents and applications. Additionally, Illinois employers should consider updating sexual harassment-related training and workshops to reflect the proposed legislation's requirements, as well as discussing with supervisors the expansive new obligations related to pregnant employees/applicants. 

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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