The Illinois Legislature was busy in 2024, passing a slew of new employment laws and amendments to existing laws, only one of which in any manner affirmatively helps employers. Below is a summary of the bills that were signed into law by Governor J. B. Pritzker in 2024 and what every employer must learn now to avoid claims and litigation down the road. For a more detailed discussion of these laws, please click here.
NEW E-VERIFY REQUIREMENTS
The Illinois Legislature has previously tried to ban the voluntary use of E-Verify through amendments to the Right to Privacy in the Workplace Act, though the amendments were eventually struck down by the Illinois Supreme Court. The language of Illinois SB0508, which was signed into law on June 20, 2024, could be read to ban employers from voluntarily using E-Verify. The Illinois Department of Labor (IDOL), however, has now clarified (in a non-binding “Frequently Asked Question” (FAQ)) that the law does not prohibit an employer from voluntarily using E-Verify. It is important to note that there are clear disclaimers on the use of FAQs and that they are not to be considered complete and do not constitute a legal opinion. Hopefully, the IDOL will more formally confirm this in a regulation.
New Requirements if Verification Discrepancy
Employers must be prepared to comply with the new required procedures provided in the amendment if they either find a discrepancy in an employee’s employment verification information, or if they receive notification from the Social Security Administration or IRS of a discrepancy. If an employer discovers a discrepancy in an employee’s employment verification information, the employer must provide the employee with:
- the specific document or documents that are deemed to be deficient and the reason why they are deficient;
- instructions on how the employee can correct the deficient documents;
- an explanation of the employee’s right to have representation present during the verification or re-verification process; and
- an explanation of any other rights the employee may have with regard to the verification or reverification process.
The legislation adds new language in Section 13(d)(1) that when notified by a federal or state agency of a discrepancy as it relates to work authorization, “The employer must not take any adverse action against the employee, including the re-verification, based on the receipt of the notification.”
In addition to not taking any adverse action, further steps are required of an employer when it receives notice of a discrepancy from a state or federal agency. The employer must also provide notice of the discrepancy to the employee within five business days after notification with: 1) an explanation that the federal or state agency has notified the employer that the work authorization documents do not appear to be valid or reasonably relate to the employee; and 2) the time period the employee has to contest the determination. The notice must be hand delivered if possible and, if not, notification by mail or email is acceptable. The employee must be allowed to have a representative present during any meetings, discussions, or proceedings with the employer. The employer is prohibited from taking any adverse action during the above process.
The amendment also requires employers to notify employees when employers have been notified of an inspection of I-9 Employment Eligibility Verification forms, within 72 hours of receiving the notice. If, during an inspection of the I-9 forms, the inspecting entity determines the employee’s work authorization documents do not establish the employee is authorized to work in the United States, the employer shall notify the employee of the finding within five business days. The employee then has time to inform the employer whether he or she is contesting the determination.
KEY TAKEAWAY: Employers should develop a step-by-step checklist to follow in the event of any discrepancies in the employment verification process.
ILLINOIS PERSONNEL RECORD REVIEW ACT (IPRRA)
Pay Stubs
Effective January 1, 2025, SB3208 provides for new mandates pertaining to the preservation and production of employee pay stubs under the IPRRA. The amendment requires employers to maintain copies of employee pay stubs for not less than three years after the date of payment, regardless of whether the employee’s employment ends during that period, and regardless of whether the pay stub was provided on paper or electronically. In addition, the amendment requires employers to provide copies of pay stubs on request (which can be required to be in writing) within 21 days of the request.
The employer must provide the pay stubs in the manner requested by the employee, either physically or electronically, by email, through computer access, or regular mail. Importantly, employers who furnish electronic pay stubs in a manner that the former employee cannot access after separation shall, upon separation from employment, offer to provide the outgoing employee with a record of all the pay stubs from the year prior to the separation. The employer must record in writing that the offer was made, when, and how the employee responded. Thus, it will be a best practice for employers to add this task to their separation checklists and exit interview process. Noncompliance with the pay stub requirements may result in a civil penalty of up to $500 per violation payable to the IDOL. This change took effect January 1, 2025.
KEY TAKEAWAY: Employers should develop and maintain a process to preserve employee pay stub information, and ensure that in the separation process, employees are provided with a written offer to provide the prior year’s pay stubs.
Additional Documents Employers Must Produce
The IPRRA requires certain documents to be produced upon request. Specifically, the IPRRA requires employers to produce (with a few exceptions):
“any personnel documents which are, have been, or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge, or other disciplinary action.”
Thus, it has been important for employers to understand and follow this standard and not just produce a personnel “file” when requested. It requires employers to dig deeper and gather other possibly relevant documents pertinent to the requesting employee, which could include time records, performance evaluations, write-ups, complaints about the employee, sales records, other performance documentation, and much more depending on the circumstances of each individual employee’s employment and decisions made throughout employment.
Effective as of January 1, 2025, HB3763 expands the documents that must be provided to requesting employees. Specifically, employers will now be required to also provide:
- Any employment-related contracts or agreements that are legally binding on the employee;
- Any employee handbooks that the employer made available to the employee or that the employee acknowledged receiving (which presumably includes all prior versions);
- Any written employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, discharge, or other disciplinary action.
Thus, employers must be aware of these requirements (which are automatically included with a request for “personnel records” and do not require any additional request language other than simply requesting “all” records under the Act).
KEY TAKEAWAY: Employers should consider creating a checklist to follow each time they receive requests for personnel records. Employers must also train supervisors on what to do when such a request is made, which would likely include providing the request to an HR department without delay.
WORKER FREEDOM OF SPEECH ACT
The Worker Freedom of Speech Act (“the Act”) (SB3649) was signed into law on July 31, 2024, and took effect January 1, 2025. [Note that as of time of publication, there are pending legal challenges to this law, though the law remains in effect.] The Act states that it is in the public policy interests of the State for all working Illinoisans to have protections from mandatory participation in employer-sponsored meetings if the meeting is designed to communicate an employer’s position on “religious” or “political” matters. The definitions of “religious” and “political” matters are exceptionally broad. “Political” matters include unions and union activity, including organizing efforts. The Act also prevents employees from being subjected to intimidation tactics, including acts of retaliation, discipline, or discharge from their employer for choosing not to participate in employer-sponsored meetings. In other words, the Act seeks to prohibit “captive audience meetings.” Whether the Act, or at least the inclusion of the definition of “labor organization,” remains intact and goes into effect will remain to be seen. Previous challenges in other states to legislation that would quash employer speech have been made based on preemption under the National Labor Relations Act (which allows for employers to hold union meetings and protects employer speech on such subjects), and/or a violation of the First Amendment.
KEY TAKEAWAY: Until challenges to the Worker Freedom of Speech Act work their way through the courts, employers must take care to not make mandatory any meetings discussing religious or political issues (including anything relating to unions or union organizing).
PAY TRANSPARENCY: POSTINGS NOW REQUIRED
In 2023, Illinois amended the Illinois Equal Pay Act (IEPA), which requires that all employers with 15 or more employees (anywhere, not just in Illinois), and with employees employed in Illinois, must include the “pay scale and benefits” for a position in any specific job posting, including through postings by third party entities. The law went into effect on January 1, 2025.
The posting requirements apply to positions that will either 1) be physically performed, at least in part, in Illinois, or 2) that will be performed outside of Illinois but the employee reports to a supervisor, office, or other work site in Illinois. “Pay scale and benefits” means the wage or salary, or the wage or salary range, and a general description of benefits and other compensation, including but not limited to bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position. The “good faith” estimate may depend on factors such as “any applicable pay scale, the previously determined range for the position, the actual range of others currently holding equivalent positions, or the budgeted amount for the position.”
The amendment to the IEPA also provides that an employer shall announce, post, or otherwise make known all opportunities for promotion to all current employees no later than 14 days after the employer makes an external job posting for the position. If the employer does not post the job in a manner available to the applicant, then the employer (or employment agency) must disclose to the applicant the pay scale and benefits to be offered for the position prior to any offer or discussion of compensation, and if the applicant requests.
The IDOL created (non-binding) Frequently Asked Questions, which clarify questions many employers have been asking since the law was passed in 2023. One question that has been answered is that if an out-of-state employer posts for a remote position, unless that position will be supervised by someone in Illinois, or the employer has reason to know or foresee that the work will, at least in part, be performed in Illinois, the employer will not need to include the pay and benefits information in the posting. Also, the ultimate offer made can be outside the originally posted pay range as long as the pay scale information was created and disclosed in good faith. Employers are not required to post for every job and instead can recruit in other ways; however, if a candidate for which there was no formal posting requests the pay scale and benefits information, the employer must provide it before making an offer.
KEY TAKEAWAY: Employers must now ensure that all job postings, whether directly from the employer or through a third party, and whether internal or external, contain the pay scale and benefits of each position.
EXPANSION OF ILLINOIS WHISTLEBLOWER ACT
Under HB5561, which went into effect January 1, 2025, employees can now bring a claim under the Whistleblower Act for retaliation based on their report to an internal supervisor, manager, officer, or board member. Pre-amendment, actions under the Whistleblower Act were limited to retaliation based on reports to law enforcement or a government agency or court. Common law retaliatory discharge actions expanded the concept further, allowing lawsuits based on discharge (and only discharge) in retaliation for reporting an alleged violation of a clear mandate of Illinois public policy (which, according to case law, is found under Illinois statutory and regulatory law). For obvious reasons, we have always advised against taking adverse actions of any sort (not just termination) against an employee who reported a violation of state or federal law, even if that report was limited to an internal report, or who engaged in any protected activity, such as filing a workers’ compensation claim.
The Whistleblower Act amendments expand the Act in several additional ways: First, a retaliatory action need not be an adverse employment action and now can also be a nonemployment action “that would dissuade a reasonable worker from disclosing information under [the Whistleblower Act].” Several specific examples are included in the statute, including (1) taking or threatening to take action that would intentionally interfere with an employee’s ability to obtain future employment, or post-termination retaliation to interfere with a former employee’s employment; (2) taking or threatening to take actions prohibited under the Illinois Human Rights Act; or (3) contacting or threatening to contact immigration authorities.
Second, penalties and damages have been expanded to include, in addition to reinstatement, backpay, and attorneys’ fees and costs: (1) permanent or preliminary injunctive relief; (2) front pay and 9 percent interest on any back pay award; (3) liquidated damages of up to $10,000; and (4) “the court shall award a civil penalty of $10,000 payable to the employee.” The amendments also provide for Attorney General enforcement of the statute.
KEY TAKEAWAYS: Our best advice on the concept of whistleblowing has not changed. Employers should avoid any adverse employment actions of any kind due to an employee’s “whistleblowing” or protected activities, whether the report was made internally or to a governmental or law enforcement agency.
LIMITATION TO BIOMETRIC INFORMATION PRIVACY ACT (BIPA)
In perhaps the only amendment helpful to employers in the 2024 legislative session, SB2979 provides some much-needed limitation on the concept of what constitutes a violation of BIPA. Now, BIPA provides that for the purposes of both Subsections (b) and (d) of Section 15 of the Act (which prohibit collection or being in possession of biometric information without proper notice and consent), if the company is using the same biometric identifier (i.e. a fingerprint) or biometric information from the same person using the same method of collection, this will constitute a single violation of Section 15, and the person will be entitled to, at most, one recovery under that section. The amendment also allows a release to be signed electronically.
KEY TAKEAWAYS: As always, employers must ensure that if they are using any biometrics of any kind in employment (and elsewhere) they provide all required disclosures and obtain all required consent, in writing.
CHANGES TO ILLINOIS HUMAN RIGHTS ACT (IHRA)
Statute of Limitations – 2 Years
Effective January 1, 2025, the statute of limitations for employees to file charges of discrimination at the Illinois Human Rights Commission is now two (2) years instead of 300 days. There is no language in the bill regarding retroactive application. However, the Illinois Department of Human Rights has indicated that the new limitations period will not apply retroactively to resurrect a previously stale claim. Instead, the two-year limitations period will apply to all claims that arise on or after January 1, 2025. This means that claims that arose prior to March 7, 2024 (300 days prior to January 1, 2025) are time barred if they were not filed before January 1, 2025. Claims that arose on or after March 7, 2024 will now have the two-year statute of limitations.
KEY TAKEAWAYS: Employers should take care to preserve all potential evidence in any employment matter for a longer period of time, including electronic records such as emails and text messages, as well as any documents relevant to various employment decisions.
Family Responsibilities
Effective January 1, 2025, the Illinois Human Rights Act now includes “family responsibilities” in the list of classes protected from harassment and discrimination. “Family responsibilities” is defined as an employee’s “actual or perceived provision of personal care to a family member.” “Personal care” and “family member” have consistent definitions as found in the Employee Sick Leave Act, which are broad. The legislation does state, however, that it is not intended to obligate an employer to make accommodations or modifications to reasonable workplace rules or policies for an employee based on family responsibilities, including accommodations or modifications related to leave, scheduling, productivity, attendance, absenteeism, timeliness, work performance, etc.
Reproductive Health Decisions
Effective January 1, 2025, the Illinois Human Rights Act now includes “reproductive health decisions” in the list of classes protected from discrimination under the IHRA. “Reproductive health decisions” is defined as a person’s decisions regarding their use of: contraception; fertility or sterilization care; assisted reproductive technologies; miscarriage management care; healthcare related to the continuation or termination of pregnancy; or prenatal, intranatal, or postnatal care.
Coming in 2026: Artificial Intelligence and Zip Codes
Effective January 1, 2026, employers will be prohibited from using artificial intelligence that has the effect of subjecting employees to discrimination on the basis of protected classes under the IHRA. Employers will also be prohibited from using zip codes as a proxy for protected classes under the IHRA. Employers must also provide notice to employees that they are using artificial intelligence in their employment decisions listed above. “Artificial intelligence” means “a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. Artificial intelligence includes generative artificial intelligence. “Generative artificial intelligence” means “an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following:
- textual outputs, such as short answers, essays, poetry, or longer compositions or answers;
- image outputs such as fine art, photographs, conceptual art, diagrams and other images;
- multimedia outputs, such as audio or video in the form of compositions, songs, or short form or long form audio or video: and
- other content that would be otherwise produced by human means.