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Illinois Changing Employment Landscape

The Honorable J.B. Pritzker has been very busy in enacting sweeping changes to the Employment Law Landscape through the passage of various pieces of legislation in the State of Illinois. These legislative changes have modified the Illinois Human Rights Act and the Illinois Victim Economic Security and Safety Act and created the new Workplace Transparency Act, which has imposed new reporting, training and contracting requirements as well as expanding the potential legal liability of employers. As well, Amendments to the Illinois Equal Pay Act have raised issues with regard to the hiring process and the Organ Donor and School Activity Leave has added to the Changing Landscape.

Here is a "quick summation" of the various changes:

Illinois Equal Pay Act:

These changes are effective as of September 29, 2019:

  • Employers are prohibited from requesting or requiring applicants to disclose prior wage, salary, benefit or other compensation history as a condition of the application process.
  • Employers may not refuse to hire an applicant or take adverse action against an employee for refusing to provide salary history information.
  • Even if an applicant voluntarily discloses past compensation information, an employer may not use that information in deciding whether to hire the applicant or determine that individual's salary.
  • Employers cannot instruct employees to refrain from discussing their wages, salary, benefits or other compensation with other Employees. Employers may continue to prohibit Human Resource Employees and Supervisors, who have special access to wage or salary information, from discussing that information about individual employees without the involved employee's written consent.
  • Employers may ask an applicant about their expectations with regard to wages.
  • In the litigation context, Employees who are seeking to demonstrate a pay disparity have the ability to compare themselves to employees working in jobs that require similar skills, effort and responsibility rather than the previous standard of comparing themselves to employees working in jobs that require equal skill, effort and responsibility.

Artificial Intelligence Video Interview Act:

Beginning January 1, 2020, if an Employer asks applicants applying for positions, based in Illinois, to have the ability to record video interviews and use artificial intelligence analysis for those videos, the Employer must:

  • Notify the applicant before the interview that artificial intelligence may be used to analyze the video.
  • Provide to the applicant information before the interview on how artificial intelligence works and what characteristics will be used to evaluate the applicant.
  • Obtain consent from the applicant before using artificial intelligence in any interview (the author suggest that this consent be in writing).
  • Destroy the video and any copies of that video within thirty (30) calendar days of a request by the applicant to do so.

Workplace Transparency Act:

Effective January 1, 2020, the Workplace Transparency Act will generally forbid employers from preventing an Employee or applicant from making truthful statements or disclosures about alleged criminal activity or unlawful employment practices. The term "Unlawful Employment Practice" refers to "any form of unlawful discrimination, harassment or retaliation that may be actionable under Federal or State Law". The Act will also prohibit employers from requiring employees or applicants to waive, arbitrate or otherwise diminish any existing or future claim or right related to an unlawful employment practices. This basically means that any mandatory arbitration clause covering employment claims must be in writing; demonstrate actual or bargain for consideration for both parties and provide that no employee can be prohibited from reporting good faith allegations of criminal conduct to the appropriate investigating agency or government official. As well, the new law will bar non-disclosure and non-disparagement clauses in settlement or termination agreements unless confidentiality is the preference of both parties and is beneficial to both parties; the employee is notified of his/her right to have an attorney review the agreement prior to its execution and the employee is given twenty-one (21) calendar days to consider execution of the agreement and, as well, a seven (7) day revocation.

As well, effective January 1, 2020, every employer with employees working in the State of Illinois must provide Sexual Harassment Prevention Training, at least once a year. This training must define what sexual harassment is; provide examples of prohibited conduct and summarizes the employer's responsibility to prevent, investigate and correct sexual harassment. The Illinois Department of Human Rights is to create a model training program for employers to use that may be available to employers for their implementation and usage, although no date has been established as to when this Program must be available.

Illinois Human Rights Act:

The definition of employer under the Illinois Human Rights Act will be changed, effective July 1, 2020, to define "employer" as any person employing one (1) or more employees within the State of Illinois during twenty (20) or more calendar weeks in a calendar year. Effective January 1, 2020, the Illinois Human Rights Act will apply to non-employees such as contractors and consultants who will be protected from harassment and, as well, allegations may be brought against non-managerial and non-supervisory staff with the employer's obligation/liability to be limited only if the employer has "actual knowledge of conduct and fails to take corrective measures".

Also, effective July 1, 2020, employers must disclose the total number of adverse judgments or administrative rulings during the prior year that have been issued against the employer for any discrimination case under Federal, State or Local Law broken down by protected characteristics and also whether any equitable relief was ordered against the employer in such ruling.

Organ Donor Protection:

Amends the Organ Donor Leave Act prohibiting an employer from retaliating against an employee for requesting or obtaining a leave of absence to donate blood, and organ or bone marrow.

School Activity Leave Requirement:

Effective August 1, 2020, amends the School Visitation Right Act to clarify that employees may use school visitation privileges for purposes of academic and behavioral meetings and that an employee may not be terminated for the use of school visitation privileges.

Obviously, the Legal Landscape for Employment in the State of Illinois has been drastically impacted by these pieces of legislation and Employers should prepare for increased legal scrutiny and challenges. Simply stated, the cost of doing business in the State of Illinois is going way up!

Questions? Contact Attorney Walter Liszka in our Chicago office at (312)629-9300 or by email at [email protected].

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