Illinois employers, get ready!

Illinois ended the old year and started the new with a bang.

Numerous new workplace rules have taken effect, with more on the horizon. Here are some of the recent changes that employers with operations in Illinois will need to be aware of in the new year.

Green light on recreational marijuana

As of January 1, Illinois became the 11th state to legalize recreational marijuana by passing the Cannabis Regulation and Tax Act. Although the Illinois legislature has said that employers may establish drug-free workplaces, it has also said that employers may not discriminate against applicants or employees based on their legal, off-duty use of cannabis.

The Illinois law creates practical problems for employers trying to enforce drug-free workplaces. Currently available drug tests can detect the presence of cannabis, but they do not indicate when it was consumed or whether an individual is impaired. If the individual who tests positive is using medical marijuana, the employer may be required by the Illinois Human Rights Act to make reasonable accommodations. (Reasonable accommodations would not be required under the Americans with Disabilities Act because the ADA does not protect "current users of illegal drugs," and marijuana is still an illegal drug under federal law.)

Thus, employers with operations in Illinois are likely to face new challenges to employment decisions based solely on an individual's positive marijuana test result.

Yellow light on confidentiality and non-disparagement language in agreements with employees

Under Illinois’ Workplace Transparency Act, any agreement that prevents an applicant or employee from making truthful statements or disclosures, or that requires an applicant or employee to waive, arbitrate, or “otherwise diminish” any right related to an unlawful employment practice is void, unless that agreement is (among other things)

  • In writing,
  • Demonstrates bargained-for consideration, and
  • Acknowledges the right of the employee to make truthful statements, report unlawful employment practices or criminal conduct, participate in governmental investigations, and request legal advice.

Any settlement or severance agreement that includes confidentiality language must meet similar requirements. A violation of the Workplace Transparency Act is also a violation of the Illinois Human Rights Act. Thus, employers with operations in Illinois should evaluate and revise their employment, arbitration, severance, and settlement agreements to ensure compliance.

Mandatory sexual harassment training, and annual reporting of judgments and administrative rulings involving sexual harassment or discrimination

Effective January 1, Illinois employers must provide annual training about preventing sexual harassment to all employees.

Effective July 1, employers will also be required to provide information to the Illinois Department of Human Rights about any court judgment or administrative ruling in which there was a finding of sexual harassment or unlawful discrimination under the Illinois Human Rights Act. If asked during a Human Rights investigation, the employer may also be required to disclose settlements of claims of sexual harassment or discrimination.

Also effective July 1, hospitality and casino employers will have additional requirements related to sexual harassment. Among other things, employers in these industries will be required to inform all employees of the sexual harassment and discrimination protections available, allow employees to immediately leave an area if they feel endangered, and equip facilities with portable emergency contact devices.

Finally, the recent amendments to the Human Rights Act also expanded the coverage of the Act, so that more individuals and entities are covered. 

These provisions are part of the Workplace Transparency Act linked above. 

Salary history ban 

Under amendments to Illinois’ Equal Pay Act, employers may not request or require job applicants to disclose information about their current salaries or salary histories. Employers also may not ask for salary history information from former employees, nor may they consider any voluntary disclosures when determining a new employee’s compensation.

These amendments took effect in late 2019, making Illinois the latest in a long line of states that bar inquires about salary history. (Employees, of course, retain the right to discuss their own wages and benefits.) Violations of this act can result in special damages of up to $10,000, plus compensatory damages, and attorneys’ fees and costs.

Restrictions on using artificial intelligence to analyze videos of job applicants

Continuing its regulation of technology in the workplace, the Illinois legislature passed the Artificial Intelligence Video Interview Act. Employers who use artificial intelligence to analyze job candidates’ video interviews must notify the applicants in advance that AI may be used, provide applicants with information before the interviews explaining what characteristics are being evaluated, and obtain the applicants' consent for AI evaluation. The act also imposes data destruction requirements.

As we previously reported, the Illinois Supreme Court ruled in 2019 that an employer's failure to follow the requirements of the state Biometric Information Privacy Act is enough to support a private cause of action. As a result, we expect to see increased litigation under the BIPA in 2020. 

Single-occupancy restrooms must be gender neutral 

Under the Equitable Restrooms Act (yes, that really is the name of the Act), all single-occupancy restrooms in places of public accommodation must be marked with gender-neutral signage and designated for use by no more than one person or for family or assisted use. Employers with public accommodations in Illinois should update their signage promptly and mark the baby changing stations.

Coming soon to Chicago: Predictive scheduling ordinance 

Effective July 1, Chicago’s Fair Workweek Ordinance will require covered employers (including those in health care, retail, hotel, and warehousing) to provide covered employees with a written, good-faith estimate of expected weekly hours and on-call shifts, as well as the day and time of shifts. Covered employers will also be required to publish shift schedules at least 10 days in advance or pay employees "predictability premiums." If an employer makes changes to the schedule or cancels shifts with less than 10 days’ notice, the employer will be required to pay a predictability premium or up to half of the employee’s regular rate of pay for those shifts. (Some exceptions apply.)

Covered employers will also be required to offer additional hours to current employees before hiring new ones. Employers with unpredictable business demands will find complying with this ordinance particularly challenging and should start their compliance efforts now.

Image Credits: Illinois eye candy from flickr, Creative Commons license: Illinois State Capitol building by Patrick Emerson, Abraham Lincoln by simpleinsomnia, genuine Illinois cornfield by Randy Wick, Chicago sign by Kevin Dooley.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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