Summer in Chicago always brings welcome change, but the end of the Illinois legislative session in the spring can mean a flurry of new obligations in the summer for Illinois employers. This year is no exception. We highlight five changes Illinois employers should be aware of as they prepare their workforce for this summer and beyond.
The Illinois CROWN Act makes workplace hair discrimination illegal
On June 29, 2022, Governor Pritzker signed the Create a Respectful and Open Workplace for Natural Hair Act (“CROWN Act”) into law, banning race-based hair discrimination by employers in Illinois. Specifically, the CROWN Act, which is effective January 1, 2023, expands the definition of “race” under the Illinois Human Rights Act (IHRA) to include “traits associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists.” Though a similar law, Illinois SB 817, was signed into law in August 2021, it only prohibited schools from issuing policies on hairstyles historically associated with race or ethnicity. The CROWN Act, expands the protection by prohibiting race-based hair discrimination in employment, housing, financial transactions and public accommodations.
Illinois and 16 other states (including California, Colorado, Connecticut, Delaware, Louisiana, Maine, Maryland, Nebraska, Nevada, New Mexico, New Jersey, New York, Oregon, Tennessee, Virginia, and Washington) and several municipalities have enacted similar CROWN laws. In addition, the US House of Representatives passed a federal CROWN Act in March of this year which would make hair discrimination illegal in all 50 states if passed, but the bill has not yet been approved by the Senate.
What should Illinois employers do now?
Illinois employers should:
- Revise employee handbooks, with a particular focus on grooming policies, to ensure they emphasize compliance under the CROWN Act.
- Train managers / supervisors, HR and employees on the CROWN Act to mitigate the possibility of race-based hair or trait discrimination under the CROWN Act and other applicable anti-discrimination laws.
New sexual harassment prevention obligations for Chicago employers
On April 27, 2022, the Chicago City Council passed Substitute Ordinance 2022-665, amending the Chicago Human Rights Ordinance and creating new obligations for Chicago employers relating to sexual harassment prevention. The amendments became effective July 1, 2022.
Here are the key changes Chicago employers need to know:
New written policy requirements
Employers must have a written policy prohibiting sexual harassment as of July 1, 2022. The written policy must include:
- The definition of sexual harassment in Section 6-10-020, which has been revised to specifically include sexual misconduct: “any (i) unwelcome sexual advances or unwelcome conduct of a sexual nature; or (ii) requests for sexual favors or conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or (2) submission to or rejection of such conduct by an individual is used as the basis for any employment decision affecting the individual, or (3) 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; or (iii) sexual misconduct, which means any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual’s employment position.”
- A statement that sexual harassment is illegal in Chicago, as well as a statement that retaliation for reporting sexual harassment is illegal in Chicago.
- Examples of sexual harassment.
- Details on how an employee can report an allegation of sexual harassment, including, as appropriate, instructions on how to make confidential reports (with an internal complaint form) to managers, corporate headquarters, human resources, or other internal reporting processes.
- Information about legal services, including governmental agencies, available to employees who may be victims of sexual harassment.
The written policy must be made available to employees within their first calendar week of starting employment, in the employee’s primary language.
The Chicago Commission on Human Relations (the “Commission”) has provided model sexual harassment policies in several languages on its website.
New training requirements
The written policy also must include a requirement that all employees participate in annual sexual harassment prevention training–and employers are required to mandate their employees participate in the trainings beginning July 1, 2022, meaning that by June 30, 2023 all employees must receive their first round of required annual training. Specifically:
- All employees must participate in a minimum of one hour of sexual harassment prevention training annually
- Supervisors / managers must participate in a minimum of two hours of sexual harassment prevention training annually
- All employees must also participate in a minimum of one hour of bystander training annually
The State of Illinois model sexual harassment prevention training program, which provides one hour of training, is sufficient for the sexual harassment prevention training for employees. In addition, training templates and materials for the additional hour of training (for supervisors / managers) and for the hour of bystander training have been made available to employers on the Commission’s website.
New notice requirements
Effective July 1, 2022, all employers are required to conspicuously display–in at least one location where employees commonly gather–posters, both in English and in Spanish, designed by the Commission about the prohibitions on sexual harassment. The posters are available for download on the Commission’s website.
Employers must keep a record of the employer’s written policy prohibiting sexual harassment, trainings given to each employee, and records demonstrating compliance for at least five years–or for the duration of any claim, civil action, or pending investigation relating to the law, whichever is longer. If employers fail to maintain the records, a presumption is created that the employer is in violation of the law (rebuttable only by clear and convincing evidence).
Longer statute of limitations, longer notification period for the Commission, and penalties
Employees now have a 365 day statute of limitations (instead of 300 days) to report all forms of discrimination, including sexual harassment. In addition, after receiving a report of an alleged violation, the Commission has 30 days to notify a respondent (increased from 10 days)–which, according to outreach materials on the amendments, is intended to mitigate retaliation such as denial of a reasonable accommodation request.
Any employer who violates the written policy, training or notice requirements is subject to a fine of between $500-$1000 per day, per offense.
What should Chicago employers should do now?
- Review sexual harassment prevention training programs for timing and content to ensure they comply with the new law.
- Determine rollout procedures to ensure all employees receive training before June 30, 2023.
- Train HR on the new amendments, including recordkeeping requirements.
- Visit the Commission’s website for helpful model materials.
Now, employers with 100 or more employees must obtain an Equal Pay Registration Certificate under the Illinois Equal Pay Act
As we blogged about here, earlier this year, some covered Illinois employers had to begin submitting demographic data, wage records, and a certification that they have complied with a range of equal pay and discrimination laws to the Illinois Department of Labor (IDOL) to apply for an Equal Pay Registration Certificate (EPRC) under the Illinois Equal Pay Act (IEPA) reporting provisions.
Previously, only private employers with more than 100 employees and required to file an Annual Employer Information Report EEO-1 with the EEOC were required to complete the IEPA registration certification. On April 22, 2022, Governor Pritzker signed HB 4604, amending the IEPA and requiring private employers with 100 or more employees in Illinois to obtain an equal pay registration certificate from the IDOL.
What should employers do now?
Employers who are affected by the amendment (or who are on the cusp of having 100 employees and may soon be) should become familiar with the Act’s reporting requirements (see our prior blog and the IDOL EPRC site), provide the IDOL with their business contact information (if they have 100 or more employees), and consult with employment counsel for assistance.
Illinois Employee Sick Leave Act now provides minimum standards in a CBA
On May 13, 2022, Governor Pritzker signed into law Illinois Public Act 102-0817, amending the Illinois Employee Sick Leave Act. Before the amendment, the Act essentially exempted collective bargaining agreements (CBA) by stating that the Act could not be construed to invalidate, diminish or interfere with a CBA or any party’s power to collectively bargain. Now, the Act also states that the rights afforded under the Act serve as the minimum standard in a negotiated CBA. The amendment is effective January 1, 2023.
What should employers do now?
Unionized employers heading into negotiations for a CBA effective on or after January 1, 2023 should make themselves familiar with the requirements of the Illinois Employee Sick Leave Act and consult with counsel to determine the implications of any changes to sick leave for unionized employees.
Changes to Illinois One Day Rest in Seven Act include an additional meal break and clarified penalties
The Illinois One Day Rest in Seven Act (“Act”) was amended on May 13, 2022, increasing obligations for employers. The amendments come into effect January 1, 2023.
“Calendar week” replaced by “seven-day period”
Employers are currently required to provide non-exempt employees with at least twenty-four consecutive hours of rest in every “calendar week,” currently defined as Sunday at 12:01 a.m. to midnight on Saturday. The amendment deletes “calendar week” and instead provides that employers must allow non-exempt employees “at least twenty-four consecutive hours of rest in every consecutive seven-day period.”
Additional meal break
The Act currently provides for a mandatory unpaid twenty-minute meal break for any non-exempt employee who works 7.5 continuous hours or longer (which must be provided within the first five hours of work). The amendment now states that a non-exempt employee who works in excess of 7.5 continuous hours must be provided with an additional 20-minute meal period for every additional 4.5 hours worked (and the meal period excludes reasonable time spent using the restroom).
The amendment requires employers to post a notice provided by the IDOL summarizing the requirements of the Act and information related to filing a complaint. Employees who work remotely or travel for work can receive the notice by email or on a website regularly used by the employer to communicate work-related information that employees are able to regularly access.
Violation of the act now constitutes a civil penalty (as opposed to the previous “petty offense”).
A violating employer with fewer than 25 employees is subject to a penalty not to exceed $250 per offense payable to IDOL, and damages of up to $250 per offense payable to the affected employees). This increases for an employer with 25 or more employees, who faces a penalty not to exceed $500 per offense payable to IDOL, and damages of up to $500 per offense payable to the affected employees.
What’s an “offense”? Each week that an employee is found to not have been allowed 24 consecutive hours of rest is a separate offense, and each day that an employee is found not to have been provided a meal period is a separate offense. And a violation of the notice requirements is a single offense subject to a civil penalty not to exceed $250, payable to IDOL.
Exempts employees whose work hours are established through collective bargaining
In addition to the May 13 amendments, on May 27, 2022 Governor Pritzker signed SB 3416 into law, clarifying that as of January 1, 2023, employees whose work hours, days of work and rest periods are established through collective bargaining are exempt from the requirements of the Act.
Next steps for employers
Employers should train managers / supervisors and HR on the changes to the law, including the new definition of the seven-day period the additional meal break, and must comply with the posting requirement. With steeper penalties, employers should confirm that systems are in place to ensure employees are receiving appropriate meal breaks and appropriate notice.
For help navigating these new Illinois laws and all of your employment law needs, contact your Baker McKenzie employment attorney.