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A New Year Brings New and Amended Laws in Illinois

Heather Becker and David Moore
ChicagoSHRM Blog

Human resources professionals know all too well that with each passing year there are typically changes in the law that impact their company’s employment policies and procedures. The same holds true for 2020; except this year, in Illinois, we have more new laws and amendments to grapple with than in recent memory. This article highlights many of the changes that take effect on January 1, 2020.

The new Illinois Workplace Transparency Act is designed to level the playing field in situations involving employment contracts. The law does this by, among other things, (1) categorically prohibiting contracts that restrict employees from reporting allegations of criminal or unlawful conduct to federal, state or local officials; and (2) voiding most confidentiality, non-disclosure, or arbitration agreements applicable to discrimination, harassment or retaliation allegations that are unilateral conditions of employment. Employers and employees may still negotiate contracts that are mutual conditions of employment—i.e., not take it or leave contracts—so long as the contract allows the employee to report good faith allegations of criminal conduct and discrimination, harassment, and retaliation to the government, to participant in government investigations of discrimination and harassment, to make truthful statements or disclosures required by law or legal processes, and to receive legal advice. When it comes to confidentiality clauses in settlement and separation agreements, specifically, the law requires that confidentiality be a documented preference of the employee that applies mutually; that the employee be told in writing of his/her right to have an attorney review the agreement; that there be valid, bargained-for consideration in exchange for any confidentiality; that the agreement cannot waive prospective claims; and the agreement must give the employee 21 days to consider before signing and 7 days to revoke acceptable after signing. Given the broad reach of the law, employers should review all of their employment contracts, non-compete, non-solicitation and confidentiality agreements, separation/severance agreements, and employee handbooks and other workplace policies to ensure compliance.

While the Illinois Human Rights Act (“IHRA”) has been in place for many years, recent amendments expand the scope of the law. For instance, the IHRA has been broadened to protect against discrimination and harassment based on any “actual or perceived” protected class, meaning that employees who do not fall within a protected category may still be covered by the law based on other’s perceptions of their protected characteristics. The IHRA amendments also expand the definition of “work environment” to make clear that it is not limited to a physical location where the employee is assigned. The IHRA amendments further expand to scope of potential employer liability to include harassment committed by non-managerial and non-supervisory employees when the employer becomes aware of the conduct and fails to take appropriate action. The IHRA also now protects an employer’s contractors and consultants from harassment—not just an employer’s employees.

In addition to expanding the scope of protections, the amendments mandate annual sexual harassment prevention training for all employees at least once per year and disclosures to the Department of Human Rights of all adverse judgments or rulings related to harassment or discrimination. There are also new mandates and notice requirements related specifically to the prevention of sexual harassment for employers in the restaurant and bar industry. Meanwhile, the Department of Human Rights is also streamlining its investigation process by allowing either party to ask that a pending charge be dismissed if a lawsuit is filed based on the same claims and by allowing a charging party to bypass the investigation process altogether.

The new Sexual Harassment Victim Representation Act provides that, where the victim and alleged perpetrator of sexual harassment are represented by the same union, the union must designate different representatives from the union to represent them in any related proceeding.

The Victim’s Economic Safety and Security Act (“VESSA”) currently provides that certain employers are required to offer employees who are victims of domestic or sexual violence, or who are the family or household member of such a victim, with up to 12 weeks of job-protected leave in a year as well as reasonable accommodations to address matters involving domestic violence. An amendment to the law expands VESSA’s protections to victims of “gender violence.” “Gender violence” is defined as an act of violence or aggression satisfying the elements of a criminal offense committed on the basis of a person’s actual or perceived gender, and it includes the threat of such violence.

The Lifting Up Illinois Working Families Act amends the Illinois Minimum Wage Law to raise the state minimum wage in stages until it reaches $15.00 per hour. The current state minimum wage is $8.25 per hour. Effective January 1, 2020, the new state minimum wage will be $9.25 per hour, and it will increase again to $10.00 per hour on July 1, 2020, and then an additional $1.00 per hour each year thereafter until the minimum wage hits $15.00 per hour on January 1, 2025. The amendments also increase penalties for violations of the law. Chicago employers will also need to be mindful of compliance with minimum wage increases within the City of Chicago as well.

Effective January 1, 2020, the recreational use of cannabis becomes legal in Illinois. Generally, employers may continue to adopt and enforce policies that preclude employees from being impaired or under the influence of cannabis at work or from storing or using cannabis at work. Certain types of employers may also still be able to prohibit the use of cannabis in order to comply with federal laws (such as Department of Transportation regulations) or federal funding requirements. Employers, however, may need to rethink their drug testing policies, particularly those that screen out or result in discipline for individuals who test positive for cannabis. Under the new law, employees may not be disciplined for cannabis use that takes place on their own personal time and employees who are disciplined on the basis that they are under the influence of cannabis must receive a reasonable opportunity to contest the basis of the determination.

With all of these changes coming in just over a week, now is the time to review your employment policies and procedures and determine where updates need to be made.

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