Compliance Update

Illinois Compliance Updates

Posted on August 14, 2019

The state of Illinois has enacted several pieces of legislation that address equal pay, sexual harassment, and recreational marijuana. Click each of the updates below to learn more.

Illinois has enacted legislation (House Bill 834) that will expand the state's equal pay law. House Bill 834 takes effect September 29, 2019.

Background:

Currently, the state's Equal Pay Act of 2003 prohibits employers with four or more employees from paying an employee less than another employee of the opposite sex. The law applies to workers in the same county who perform the same or substantially similar work on jobs that require equal skill, effort, and responsibility, and which are performed under similar working conditions.

There are exceptions to this general prohibition where the payment is made under a:

  • Seniority system;
  • Merit system;
  • System that measures earnings by quantity or quality of production; or
  • A differential based on any other factor other than sex or a factor that would constitute unlawful discrimination under the Illinois Human Rights Act.

In 2018, the state enacted legislation (House Bill 4743) that extended the same protections to African-American employees.

House Bill 834:

House Bill 834 amends the Equal Pay Act's definition of what constitutes pay discrimination. These amendments are underlined below.

Under the amended law, employers with four or more employees are prohibited from paying wages to an employee at a rate less than that of another employee of the opposite sex in the same county for the same or substantially similar work on jobs that require substantially similar (previously, the law stated "equal") skill, effort, and responsibility, and which are performed under similar working conditions.

Under the amended law, an exception applies when the payment is made under a:

  • Seniority system;
  • Merit system;
  • System that measures earnings by quantity or quality of production; or
  • A differential based on any other factor other than sex or a factor that would constitute unlawful discrimination under the Illinois Human Rights Act, provided that the factor:
    • Is not based on or derived from a differential in compensation based on sex or another protected characteristic;
    • Is job-related with respect to the position and consistent with a business necessity; and
    • Accounts for the differential.

Similar amendments were made to the pay-discrimination changes created by House Bill 4743.

Pay Transparency:

House Bill 834 also prohibits employers from requiring an employee to sign a contract or waiver that would prohibit the employee from disclosing information about their compensation and/or benefits. However, an employer may prohibit a human resources employee, a supervisor, or any other employee whose job responsibilities require or allow access to other employees' pay information from disclosing that information without prior written consent from the employee.

Pay History:

Employers are also prohibited from:

  • Screening applicants based on their current or prior pay history, including benefits, by requiring that it satisfy minimum or maximum criteria;
  • Requesting or requiring pay history as a condition of: being considered for employment; being interviewed; continuing to be considered for an offer of employment; or receiving an offer of employment or an offer of compensation;
  • Requesting or requiring that an applicant disclose pay history as a condition of employment;
  • Seeking an applicant's pay history, including benefits, from a current or former employer; and
  • Retaliating against an individual because they fail to comply with a pay history inquiry.

If an applicant voluntarily and without prompting discloses their current or prior pay history, including benefits, the employer may NOT consider or rely on the information in determining whether to offer a job, making a compensation offer, or determining future compensation and benefits.

Exceptions:

The above restrictions regarding pay history don't apply:

  • If the job applicant's pay history is a matter of public record under the Freedom of Information Act, or any other equivalent state or federal law, or is contained in a document completed by the job applicant's current or former employer and then made available to the public by the employer, or submitted or posted by the employer to comply with state or federal law; or
  • The job applicant is a current employee and is applying for a position with their current employer.

The law also states that the prohibitions shouldn't be construed to prevent an employer from:

  • Providing information about the compensation and benefits in relation to a position; or
  • Engaging in discussions with an applicant about the applicant's expectations with respect to compensation and benefits.

Compliance Recommendations:

Illinois employers should review application forms, policies, practices, and training to ensure compliance with House Bill 834.

Illinois has enacted legislation (Senate Bill 75) that clarifies anti-harassment protections and imposes new requirements for employers to provide sexual harassment training.

Sexual Harassment Training:

Beginning January 1, 2020, every employer with employees working in Illinois must provide training on preventing sexual harassment, unless the employer is subject to the requirements of the State Officials and Employees Ethics Act.

Employers must either use model training that will be created by the state or adopt their own training that meets or exceeds state requirements. At a minimum, the training must include:

  • An explanation of sexual harassment consistent with state law;
  • Examples of conduct that constitutes unlawful sexual harassment;
  • A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of employer responsibilities to prevent, investigate, and correct sexual harassment.

The training must be provided to all employees at least once each year.

Restaurants and Bars:

Restaurants and bars are subject to additional requirements. Effective January 1, 2020, restaurants and bars must:

  • Provide a written sexual harassment policy. The policy must be provided to all employees, within the first calendar week of employment. The policy must include:

    • A prohibition on sexual harassment;
    • The definition of sexual harassment under federal and state law;
    • Details on how an individual can report an allegation of sexual harassment internally, including options for making a confidential report to a manager, owner, corporate headquarters, human resources department, or other internal reporting mechanism that may be available;
    • An explanation of the internal complaint process available to employees;
    • How to contact and file a charge with the Illinois Department of Human Rights and U.S. Equal Employment Opportunity Commission;
    • A prohibition on retaliation for reporting sexual harassment allegations; and
    • A requirement that all employees participate in sexual harassment prevention training.

    The policy must be made available in English and Spanish.

  • Provide training specific to bars and restaurants. The state will develop supplemental training for preventing harassment in bars and restaurants, in English and Spanish. Bars and restaurants must either provide the state's model supplemental training or adopt training that meets certain minimum requirements. This training must be provided to all employees at least once per year. The supplemental training may be done in conjunction with the other required sexual harassment training.

Other Changes:

Definition of Harassment Clarified:

Under existing law, the definition of sexual harassment includes any unwelcome sexual advances or requests for sexual favors, or any conduct of a sexual nature when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual; or
  • Such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

Effective January 1, 2020, Senate Bill 75 clarifies that for the purposes of this definition, an employee's work environment isn't limited to a physical location an employee is assigned to perform their duties.

The law also clarifies that employers are prohibited from engaging in harassment on the basis of an individual's actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from military service, or citizenship status. The law defines harassment as unwelcome conduct because of any of the above protected characteristics that has the purpose or effect of substantially interfering with the individual's work performance or creating an intimidating, hostile, or offensive working environment.

An employer is responsible for harassment by the employer's nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.

Harassment of Non-employees Prohibited:

Beginning January 1, 2020, employers will also be prohibited from subjecting non-employees to harassment. Under the law, "non-employee" is an individual who is not otherwise an employee but who is directly performing services for the employer pursuant to a contract, including contractors and consultants.

Reporting Required:

Beginning July 1, 2020, if an employer has had an adverse judgment or administrative ruling related to sexual harassment or discrimination in the preceding year, the employer must file a report with the Department of Human Rights. This annual reporting requirement applies to final and non-appealable rulings and judgments only. See the text of the law for details and reporting requirements.

Compliance Recommendations:

Illinois employers should review their training and policies to ensure compliance with Senate Bill 75.

Note: HR411®'s Employee Handbook Wizard includes an updated anti-harassment policy for Illinois employees that reflects the clarifications made by the law. Restaurants and bars will need to customize this policy further to meet the requirements of Senate Bill 75. See the Alerts section, found on the Employee Handbook Wizard home page, for more information and to update this policy in your handbook.

Illinois has enacted legislation (House Bill 1438) that will allow the recreational use of marijuana in the state. The law will also offer protections for employees who use marijuana while off duty. House Bill 1438 takes effect January 1, 2020.

Off-Duty Use:

Under existing law, employers are prohibited from taking adverse action against an individual because they use "lawful products" off the employer's premises during nonworking hours.

House Bill 1438 amends the law to clarify that lawful products are ones that are lawful under state law, which will include marijuana beginning January 1, 2020.

The prohibition on taking adverse action doesn't apply to on-call employees, which are defined as those who are scheduled, with at least 24 hours' notice, to be on standby or otherwise responsible to work either at the employer's premises or at another previously designated location.

On-Duty Use:

The law doesn't:

  • Prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of marijuana in the workplace or while on-call provided that the policy is applied in a nondiscriminatory manner.
  • Require an employer to allow an employee to be under the influence of or use marijuana in the workplace, while on-call, or while performing their job duties.
  • Limit or prevent an employer from disciplining or terminating an employee for violating the employer's employment policies or workplace drug policy.

The law states that an employer may consider an employee to be impaired or under the influence of marijuana if the employer has a good-faith belief that an employee displays specific, describable symptoms while working that decrease or lessen the employee's job performance, including:

  • Symptoms related to the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery;
  • Disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property;
  • Disruption of a production or manufacturing process; or
  • Carelessness that results in any injury to the employee or others.

If an employer disciplines an employee on the basis that the employee is under the influence or impaired by marijuana, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Relationship to Other Laws:

The law is not to be construed to:

  • Interfere with any federal, state, or local restrictions on employment including U.S. Department of Transportation (DOT) regulations; or
  • Impact an employer's ability to comply with federal or state law or cause it to lose a federal or state contract or funding.

For example, the DOT doesn't permit any employee in a safety‐sensitive position, who is subject to its drug testing regulations, to use marijuana. If an employee in such a job fails a drug test for marijuana, the employee would be barred from performing safety-sensitive duties until the employee has seen a substance abuse professional and successfully completed the DOT's return-to-duty process, which includes a drug and/or alcohol test.

Compliance Recommendations:

Illinois employers should review policies and practices to ensure compliance with House Bill 1438. Supervisors should also be instructed on your company's rights and responsibilities under the law.

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