As a follow up to our New Updates for Illinois Employers – 2020 Legal Updates published in December 2019, the following is a high-level overview of some developments in Illinois employment law for the first half of 2020:
- Illinois Department of Human Rights Releases Model Training Program for Mandatory Sexual Harassment Prevention Training. The Illinois Department of Human Rights ("IDHR") released a model training program for sexual harassment prevention, to comply with the Illinois Human Rights Act ("IHRA"). Under the IHRA, Illinois employers are required to provide annual sexual harassment prevention training to all employees by December 31, 2020, and thereafter on an annual basis. Although employers are encouraged to use the IDHR’s model program, the IHRA permits employers to conduct their own training so long as it complies with or exceeds its minimum requirements. Such training requires the following at a minimum: (1) an explanation of sexual harassment, (2) examples of unlawful conduct, (3) a summary of relevant federal and state laws including available remedies, and (4) a summary of employer responsibilities for preventing, investigating, and correcting sexual harassment. There is a supplemental model program for the restaurant and bar industries. Employers are subject to monetary penalties up to $5,000 for failure to provide adequate training, based on the size of the employer and number of offenses.
- Illinois Department of Human Rights Issues Guidance for Employers on Workplace Transparency Act’s Reporting Requirement. The IDHR issued guidance for employers on the Illinois Workplace Transparency Act’s ("IWTA") reporting requirement, specifically that employers with at least one adverse judgment or administrative ruling must disclose to the IDHR the total number of final, non-appealable judgments or rulings against the employer in which there was a finding of sexual harassment or unlawful discrimination. The reporting deadline for the 2019 calendar year is October 31, 2020, and the deadline for subsequent years will be July 1. Notably, the requirement applies to “any person employing one or more employees in Illinois,” so there is no exemption based on the number of employees. Nor is it required that the employer have a physical presence in Illinois. Illinois employers’ judgments and rulings outside of Illinois must also be reported. No filing is required if the employer received no such judgments or rulings in the prior year. The IDHR provides a reporting form that may be submitted by email or mail. Although employers are not required to report settlements as part of their annual disclosures, the IDHR may request information regarding settlements as part of an investigation into a charge of discrimination. Employers are subject to monetary penalties up to $5,000 for non-compliance with the reporting requirement based on the size of the employer and number of offenses.
- Illinois Human Rights Act Now Applies to All Employers Regardless of Size. Effective July 1, 2020, the IHRA defines “employer” as any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. Previously, it applied to only those with 15 or more employees. The IHRA prohibits discrimination in Illinois with respect to employment, financial credit, public accommodations, and real estate transactions on the bases of race, color, religion, sex (including sexual harassment), national origin, ancestry, military status, age (40 and over), order of protection status, marital status, sexual orientation (including gender-related identity), unfavorable military discharge, and physical and mental disability.
- Chicago’s Paid Sick Leave Ordinance Is Expanded. On July 1, 2020, a number of important changes to Chicago’s Paid Sick Leave Ordinance ("PSLO") became effective. The changes include: (1) expanded coverage, (2) new notice and recordkeeping requirements, and (3) new complaint procedures. In terms of expanded coverage, “employer” is now defined as a person who employs at least one or more employee in Chicago. The definition no longer requires that the employer maintain a physical presence in Illinois or be subject to at least one of Chicago’s licensing requirements. The definition of “covered employee” still requires that—in any two-week period—the employee performs at least two hours of work for an employer while physically present in Chicago, and is now expanded to include outside salesmen, members of religious organizations, students employed by accredited Illinois colleges or universities, motor carriers regulated by the U.S. Secretary of Transportation or the State of Illinois, and domestic workers. The ordinance also includes new stringent notice and recordkeeping requirements. Further, the Chicago Department of Business Affairs and Consumer Protection ("BACP") rules permit a covered employee to file a complaint with BACP if the employee has been denied requirements under the PSLO. Previously, such complaints were permitted only where an employee was not granted paid sick leave.
- Chicago Fair Workweek Ordinance Becomes Effective. Effective July 1, 2020, certain large employers (generally 100 or more employees globally) are required to provide workers with at least two weeks’ notice of their schedules, as well as to compensate for last-minute changes, under the Chicago Fair Workweek Ordinance. The ordinance applies to seven key industries: building services, healthcare, hotels, manufacturing, restaurants, retail, and warehouse services. Generally, covered employees are those that make less than $26 per hour or $50,000 per year, and they are entitled to: (1) 10 days’ advance notice of work schedule; (2) right to decline previously unscheduled hours; (3) one hour of predictability pay for any shift change within 10 days; (4) right to rest by declining work hours less than 10 hours after the end of previous day’s shift, or payment of 1.25 times the employee’s regular rate for all hours in the second shift if worked; and (5) 50% pay for hours removed from the schedule with less than 24 hours’ notice. The ordinance also addresses notice and posting requirements, and record retention, among other things. Notably, there is now an exception to some employer obligations if the work schedule change is caused by certain circumstances, including a pandemic. Covered employees may file a complaint with BACP, and ultimately a civil action, however civil actions are prohibited before January 1, 2021. Nonetheless, the ordinance’s requirements are otherwise effective and employers should take steps to ensure compliance. Employers are subject to monetary penalties of not less than $300, and not more than $500, for each offense – per day, per employee. Accordingly, a covered employer that fails to provide appropriate notice for 10 covered employees for two weeks could be subject to a fine of up to $50,000.
- Chicago City Council Enacts COVID-19 Anti-Retaliation Ordinance. In May 2020, the Chicago City Council passed a COVID-19 anti-retaliation ordinance. The ordinance applies to employers that maintain a business facility within Chicago’s geographic boundaries or are subject to at least one of Chicago’s licensing requirements. Generally, the ordinance protects employees from adverse employment action where they (a) stay at home to obey public health orders, (b) comply with a healthcare provider’s order to stay home, or (c) stay home to care for individuals who have been ordered to stay at home. The ordinance allows an employer “cure” a misstep if it can demonstrate that it relied on a reasonable interpretation of an order, and cured the violation within 30 days of learning about it. Employers that violate the ordinance are subject to an action from the Commissioner of the City’s Department of Business Affairs and Consumer Protection and the aggrieved employee. An employee may bring a civil action seeking (1) reinstatement to the same or similar position before the retaliatory action, (2) damages equal to three times the full amount of wages that would have been otherwise owed, and (3) actual damages, attorneys’ fees, and costs.
This material is provided for informational purposes only, is not intended to constitute legal advice, and does not create an attorney-client relationship between Gordon Rees Scully Mansukhani and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.