Real World Impact: The Illinois Legislature has been busy this 2024 session, passing more than 10 new employment laws or amendments to existing employment laws in May 2024, only one of which in any manner helps employers. We provide a very brief synopsis of what each bill says and a more detailed analysis of each can be found [HERE]. These bills have passed both houses and all have been sent to Governor J. B. Pritzker for his signature in the last few weeks of June 2024. Importantly, this is a preview of what is likely coming, but any of this legislation can be amended, withdrawn, or vetoed prior to the Governor signing it into law. We will update this article when and if these bills are signed into law.
Limitation to Biometric Information Privacy Act (BIPA)
In perhaps the only amendment helpful to employers this legislative session, SB2979 provides some much-needed limitation on the concept of what constitutes a violation of BIPA. SB2979 states 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 a 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. (This is an improvement over the current version, which counts each fingerprint scan as a separate violation). Unfortunately, the legislation lacks language that would make the changes retroactive and protect companies that may have violated BIPA in the past.
Changes to Illinois Human Rights Act (IHRA)
Statute of Limitations
In perhaps the most significant of all changes to the employment law landscape in Illinois this session, the Legislature, in SB3310, extends the statute of limitations from 300 days to 2 years for employees to file employment claims under the IHRA. (The original proposed amendment was 3 years!)
Family Responsibilities
HB2161 adds “family responsibilities” to the list of classes protected from harassment and discrimination under the IHRA. “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.
Reproductive Health Decisions
HB4867 adds “reproductive health decisions” to 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.
Artificial Intelligence and Zip Codes
HB3773 would regulate the use of artificial intelligence in matters relating to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment. Specifically, 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.
New E-Verify Requirements and Possible Prohibition?
E-Verify Ban?
SB0508 seeks to place certain requirements on employers in the event of a mismatch of information that helps determine work authorization status. However, based on the language of the bill, whether intentional or not, it appears that the Illinois Legislature may also be attempting to bar employers from using the federal E-Verify system unless they are legally required to do so (such as federal contractors). Specifically, Section 12(a) of the Right to Privacy in the Workplace Act would add the following:
“Nothing in this Act shall be construed to require an employer to enroll in any Electronic Employment Verification System, including the E-Verify program…beyond those obligations that have been imposed upon them by federal law.”
Further, Section 13(b) would state:
“[a]n employer shall not impose work authorization verification or re-verification requirements greater than those required by federal law.”
Thus, reading these two sentences together, if employers are not required by federal law (i.e. the federal government or a federal contractor) to use E-Verify (which most are not), then they cannot use E-Verify or another verification system to determine work authorization status. A previous attempt by the Illinois Legislature to bar the use of E-Verify was found to be unconstitutional in 2009. Therefore, if this legislation is signed into law, Illinois employers should be aware of it before using E-Verify if they are not otherwise required to use it due to the increased risk that it may be intended to bar the use. The legislation also imposes various requirements on employers in the event they receive notification from the IRS or Social Security Administration of a discrepancy in the employment verification information. Further details can be found in our detailed summary.
Illinois Wage Payment & Collection Act (IWPCA)
Pay Stubs
SB3208 will provide for new mandates pertaining to the preservation and production of employee pay stubs under the IWPCA. The amendment would require 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 would require employers to provide copies of pay stubs on request (which can be required to be in writing). Employers would have 21 days to provide the pay stubs after the request. The employer must provide the pay stubs in the manner requested by the employee, either physical or electronic, email, through computer access, or regular mail. Further details can be found in our separate summary.
Illinois Personnel Record Review Act (IPRRA)
Additional Documents Employers Must Produce
The IPRRA requires certain documents to be produced upon request. Specifically, the IPRRA requires employers to produce “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” (with a few exceptions). This has been an important requirement for employers to understand and follow and not simply 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 regarding employees. Employers who fail to produce all such records upon request may be barred from later using them in litigation and also may be subject to an adverse inference as to the genuineness of documents that were not originally produced.
HB3763 will greatly expand the documents that must be provided to requesting employees, and with no additional time in which to comply. 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). Best practices will include creation of a checklist for employers 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.
New Law Alert! Freedom of Speech Act
The Illinois Legislature has now passed the Freedom of Speech Act (SB3649), which if enacted, would go into effect immediately upon signing. The legislation 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. It also seeks to prevent 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.
To that end, the Act provides that employers may not discharge, discipline, or otherwise penalize, threatened to discharge, discipline, or otherwise penalize, or take any adverse action against an employee:
- because the employee declines to attend or participate in an employer- sponsored meeting or declines to receive or listen to communications from the employer or the agent, representative, or designee of the employer if the meeting or communication is to communicate the opinion of the employer about religious matters or political matters;
- as a means of inducing an employee to attend or participate in meetings or receive or listen to communications described in paragraph (1); or
- because the employee or a person acting on behalf of the employee, makes a good faith report, orally or in writing, of a violation or a suspected violation of this Act.
“Political matters” means matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization. “Religious matters” means matters relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association. Further details are found in our separate summary, including discussion of who is an aggrieved party, who may be an “interested party” also having the right to pursue claims under this new Act, how claims may be brought, and possible penalties.
Day and Temporary Labor Services Act: Change to Timing of When Temporary Employment Agencies Must Pay “Equivalent Benefits” to Employees
In 2023, Illinois enacted changes to the Day and Temporary Labor Services Act, which among other things, required temporary employment agencies to provide pay to employees employed for 90 calendar days the “equivalent benefits” as the lowest paid, comparable, directly hired employee at the third-party client or the hourly cash equivalent of the actual cost of benefits. SB3650 would amend the 90 calendar days and instead apply when the laborer has worked more than 720 hours within a 12-month period. (The amendment also adds new pay requirements for situations when the temporary laborer works more than 4,160 hours in a 48-month period based on the most recent Standard Occupational Classification System published by the Department of Labor’s Bureau of Labor Statistics.) The amendment would also require the temporary agencies to inform eligible laborers of the seniority and hourly wage of the comparator being used to determine the wage. The amendment also would provide alternative methods (quite detailed and complicated) for computing the rate of pay based on Bureau of Labor Statistics data.