It’s one of the hottest summers on record across the US and around the world, and things may be heating up for Illinois employers as well–with pending legislation that, if signed into law, would require employers to include pay scales in job postings and to meet new health and safety-related requirements when using temporary employees. Illinois employers need to be aware of other changes, including possible liability under amendments to the Illinois Gender Violence Act, changes to the Chicago and Cook County minimum wage and new obligations for employers to meet Equal Pay Registration Certificate requirements under the Illinois Equal Pay Act of 2003.

In this blog, we “round up” eight important changes to know and two bills Illinois employers should keep on their radar as we start to round down the summer.

Eight to Know

1. Employers can now face liability under amendments to Illinois Gender Violence Act

On July 28, Governor Pritzker signed HB 1363 into law, which amends the Illinois Gender Violence Act (GVA) effective January 1, 2024 to impose employer liability in certain circumstances where individuals are victims of gender-related violence. Under the GVA, a person who has been the victim of gender-related violence can sue the person who committed the act of violence and seek damages. Now, not only do perpetrators of gender-related violence face liability under the Act–employers can be liable, too.  

What to know

• Under the new law, employers can be liable for gender-related violence committed in the workplace by an employer or agent of the employer (including independent contractors), but only when the interaction giving rise to the gender-related violence arises out of and in the course of employment with the employer–which is undefined and vague, so we’re hoping for guidance on what this means.
  • Note that “workplace” is defined, and includes the employer’s premises (including any building, real property, and parking area under the control of the employer), and any location used by the employee while performing job duties for the employer, as well as activities occurring off-premises at employer-sponsored events where an employee is not performing the employee’s job duties (think holiday parties).
• For liability to extend to an employer, the gender-related violence must occur (i) while the employee is directly performing the employee’s job duties and the gender-related violence was the proximate cause of (i.e. substantial factor in causing) the injury, or (ii) while the agent of the employer was directly involved in the performance of the contracted work and the gender-related violence was the proximate cause of the injury. In addition, an employer must also act “in a manner inconsistent with how a reasonable person would act under similar circumstances” to be liable.
• Notwithstanding the above, in order to be liable, employers must:
  • Fail to supervise, train or monitor the employee who engaged in the gender-related violence–but an employer who provides sexual harassment prevention training pursuant to Section 2-109 of the Illinois Human Rights Act (IHRA) has an affirmative defense that adequate training was provided to the employee; or
  • Fail to investigate complaints or reports directly provided to a supervisor, manager, or owner (or another person designated by the employer) of similar conduct by an employee or the employer’s agent–and fail to take remedial measures in response to the complaints or reports.
• The statute of limitations for an alleged victim of gender-related violence to sue the employer is four years, or within four years of a victim turning 18 if the victim is a minor at the time the cause of action accrues.
• The amendments also clarify that the Act does not preclude a victim of gender-related violence from pursuing any other right or cause of action created by statute or common law.

Employers should train HR and managers on the new law, and make sure employees receive appropriate sexual harassment prevention training under Section 2-109 of the IHRA to at least have the affirmative defense available should they face employee claims under the new law.

2. Amendments to the Victims’ Economic Security and Safety Act allow employees to take 2 weeks of unpaid leave for family or household member killed in a crime of violence

HB 2493 became law on July 28, amending the Victims’ Economic Security and Safety Act (VESSA) to allow employees to take a total of not more than 2 workweeks (10 work days) of unpaid leave for specified reasons (see below) relating to a family or household member who is killed in a crime of violence, effective January 1, 2024. The leave must be completed within 60 days after the date on which the employee receives notice of the death of the victim.

• The three specified reasons employees can take this unpaid leave are:
  • To attend the funeral (or alternative to a funeral) or wake of a family or household member killed in a crime of violence,
  • To make arrangements necessitated by the death of a family or household member killed in a crime of violence, or
  • To grieve the death of a family or household member killed in a crime of violence.
• The new law explains (though unclear) how the new VESSA leave interacts with bereavement leave under the Family Bereavement Leave Act (FBLA):
  • If an employee is also entitled to bereavement leave under the FBLA as a result of the death of the victim, the new law does not create a right for the employee to take leave that exceeds, or is in addition to, the unpaid leave the employee is entitled to under the FBLA.
  • However, if an employee is also entitled to bereavement leave under the FBLA as a result of the death of the victim, leave taken for the three specified reasons or under the FBLA is in addition to the total amount of leave time an employee is entitled to under Paragraph 2 of VESSA (which sets forth the graduated scheme of leave employees are entitled to based on the number of employees the employer has, and clarifies that VESSA does not create a right for an employee to take unpaid leave exceeding or in addition to the unpaid leave time allowed under the Family and Medical Leave Act).
  • And if an employee is also entitled to bereavement leave under the FBLA as a result of the death of the victim, leave taken for any of the three specified reasons is deducted from, and is not in addition to, the total amount of leave time an employee is entitled to under Paragraph 2 of VESSA, but leave taken for any of the three specified reasons does not otherwise limit or diminish the total amount of leave time the employee is entitled to take under that paragraph.
• The new law also explains that an employee can meet the certification requirement for taking leave by submitting (in addition to a sworn statement) documents in their possession showing that a victim was killed by a crime of violence, such as a death certificate or published obituary.

Employers should train HR and managers and update leave policies in accordance with the new law in advance of the January 1, 2024 effective date.

3. The Illinois Equal Pay Act has been amended to require employers to take additional steps to meet Equal Pay Registration Certificate requirements–among other changes

HB 3733 was signed into law by Governor Pritzker on June 30. Besides “modernizing” labor notices and procedures (the stated purpose of the new law), the law imposes new obligations on employers–including to meet Equal Pay Registration Certificate (EPRC) requirements.

• Employers can no longer submit their most recent EEO-1 report to meet EPRC requirements.

Before the amendment, employers who had to submit an EEO-1 with the Equal Employment Opportunity Commission (EEOC) had to also submit a copy of the most recent EEO-1 report to the Illinois Director of Labor. Those employers also had to compile a list of all employees during the past calendar year, separated by gender, race and ethnicity as reported in the business’ most recently filed EEO-1—and including other information such as the county the employee works in, the date the employee started working for the business, and “any other information the Illinois Department of Labor (IDOL) deems necessary to determine if pay equity exists among employees[.]” Now, employers cannot simply submit the EEO-1 report to the Director, and instead must submit the list they were previously only required to compile. As before, employers are still required to report to the Director the total wages paid to each employee during the past calendar year, rounded to the nearest $100.

• Employers must now provide personnel records by email upon employee request.

HB 3733 also amends the Personnel Record Review Act to now require employers to provide copies of personnel records to employees by email (or mail, as required prior to the amendment) upon request, by the email address or mailing address identified by the employee for the purpose of receiving the requested record. Under the amendments, employers can charge a fee for providing a copy of the requested record (limited to the actual cost of duplicating the record).

• Employers must make certain information regarding employee labor rights available electronically.

Under the amendment, employers with remote or traveling employees who do not report regularly to a physical workplace are required to make information regarding labor rights available electronically under several Illinois laws (including the Minimum Wage Law, Wage Payment and Collection Act, Day and Temporary Labor Services Act, and Child Labor Law).

• Employers can pay fines electronically.

The amendments also specify that employers can submit payment for penalties under the Minimum Wage Law and Child Labor Law by certified check, money order, or electronic payment system designated by the IDOL.

Employers should review policies and practices to make any required changes in advance of the amendments’ January 1, 2024 effective date.

4. The Minimum Wage has increased in Chicago and Cook County, and Chicago’s Fair Workweek Ordinance compensation metrics have been updated

As of July 1, 2023 the minimum wage increased in Chicago, and Chicago’s Fair Workweek Ordinance compensation metrics were updated. Cook County’s minimum wage also increased as of July 1, 2023.

Chicago

As of July 1, Chicago’s minimum wage increased to:

• $15.80 for employers with 21 or more employees (including all domestic workers, regardless of the number employed)
• $15.00 for employers with 4 to 20 employees
• $9.48 for tipped employees for employers with 21 or more employees, and $9.00 for tipped employees for employers with 4 to 20 employees. (Employers must make up the difference between any tips received and the applicable minimum wage for non-tipped workers.)

As a reminder, the Chicago Minimum Wage Ordinance applies to employers with four or more employees that maintain a business facility within the City of Chicago or that are required to obtain a business license to operate in the City. Additionally, any employee that works two hours or more in the City within a two-week period must also receive at least the Chicago minimum wage.

Additionally, as of July 1, the Chicago Fair Workweek Ordinance’s compensation metrics have been updated. Now, under the Ordinance–which requires certain employers to provide workers with predictable work schedules and to compensate them in certain situations when scheduling changes are made–employees are covered if they work in one of seven “covered” industries (building services, healthcare, hotel, manufacturing, restaurant, retail, or warehouse services), earn less than or equal to $30.80/hour or less than or equal to $59,161.50/year, and the employer has at least 100 employees globally (or 250 employees and 30 locations if operating a restaurant).

Cook County

On July 1, the Cook County minimum wage for non-tipped workers increased to $13.70, and the minimum wage for tipped workers increased to $8.00.

The Cook County Minimum Wage Ordinance requires all employers located within Cook County who employ any person performing at least two hours of work within a two-week period within Cook County to comply with the County minimum wage. The Cook County Minimum Wage Ordinance does not apply to the City of Chicago (since it has its own minimum wage ordinance), and does not apply to municipalities within Cook County that have their own minimum wage ordinances.

5. Employers must now allow employees to exclude public transit costs from taxable wages

HB 2068 became law on July 28, creating the Transportation Benefits Programs Act (TBPA). The TBPA requires covered employers to provide a pre-tax commuter benefit to covered employees. Employers must allow employees to use pre-tax dollars to purchase a transit pass for public transit (i.e. any transportation system of the Regional Transportation Authority) via payroll deduction, such that the costs for the purchase can be excluded from the employee’s taxable wages and compensation up to the maximum amount permitted by federal law. The Act’s effective date is January 1, 2024.

Important points

• A “covered employer” is one located in Cook County or one of several specified townships (listed in the Act) who employs 50 or more covered employees within one of those specified areas at an address located within one mile of fixed-route transit service.
• A “covered employee” is a person who performs an average of at least 35 hours of work per week for compensation on a full-time basis.
• Employers can comply by participating in a program offered by the Chicago Transit Authority (CTA) or the Regional Transportation Authority (RTA).
• The benefit must be offered to employees starting on the employees’ first full pay period after 120 days of employment.
• The Act states that it does not interfere with the rights of employees to collectively bargain, and it does not affect the validity of a bona fide collective bargaining agreement (CBA) in force on the Act’s January 1, 2024 effective date. After the effective date, the Act’s requirements can be waived in a CBA, but only if the waiver is set forth explicitly in the agreement in clear and unambiguous terms.

Illinois employers located outside of Cook County should review the law to determine whether they are “covered” and take steps to comply before January 1, 2024.

6. IDOL published new FAQs on the Illinois Paid Leave for All Workers Act

IDOL recently published FAQs on the Illinois Paid Leave for All Workers Act. Though the FAQs present provisions of the Act in a digestible form, they leave some larger questions about the Act unanswered.

• For instance, the FAQs help by highlighting that the Act applies to part- and full-time employees, and that employers can “front-load” paid leave time (by providing a full year’s worth of leave that meets the minimum requirements of the Act at the beginning of the year).
• On the other hand, regarding how existing paid time off policies intersect with the Act, the FAQs state that employers who already provide paid time off that “meet the minimum requirements of the Act” do not have to “add additional time.” This differs from the language of the Act, which states that employers who already provide paid leave “that satisfies the minimum amount of leave” need not modify their policies, so long as they allow employees to take that leave at their discretion for any reason.

Though the FAQs don’t answer all remaining questions about the Act, Illinois employers may wish to review the FAQs and reach out to counsel for assistance as they prepare for the Act’s January 1, 2024 effective date.

7. The Illinois Labor Disputes Act has been amended to expand protections for striking workers, effective January 1, 2024

Governor Pritzker signed HB 2907 and HB 3396 into law on June 9, amending the Illinois Labor Disputes Act to restrict defensive measures available to employers affected by picket activity. HB 2907 limits the amount an employer can recover for damages it suffers as a result of a labor dispute. HB 3396 makes it a Class A misdemeanor with a minimum fine of $500 to place any object in the public way with the intent of interfering with, obstructing, or impeding a picket or other demonstration or protest. Employers should train managers, supervisors and HR on the new law in advance of the January 1, 2024 effective date.

8. The Illinois Supreme Court won’t revisit its ruling that Biometric Information Privacy Act (BIPA) claims accrue each time data is unlawfully scanned or transmitted

On July 18, 2023 the Illinois Supreme Court denied a bid for rehearing of Cothron v. White Castle System, Inc.—the case in which the Court determined that BIPA claims accrue each time a private entity scans or transmits an individual’s biometric identifier or information in violation of section 15(b) or 15(d) of BIPA–not just the first time. Since BIPA damages have the potential to reach astronomical dollar amounts, employers will need to continue to be diligent to ensure they avoid BIPA violations. (For more information on the ruling and our related practical insight, see our prior blog here.)

Two to Watch

1. HB 3129 could require pay scales in job postings

The Illinois legislature passed HB 3129 on May 17, 2023 teeing up amendments to the EPA that would require, among other things, Illinois employers with 15 or more employees to include the “pay scale and benefits” in any job posting.

If signed in its current form, the requirements will take effect January 1, 2025, and will apply to job postings published after the law’s effective date.

Key details

• The requirement applies to positions in Illinois or reporting to Illinois

The disclosure requirement applies to positions that will be physically performed (at least in part) in Illinois, as well as those that will be physically performed outside of Illinois where the employee reports to a supervisor, office or other work site in Illinois. So any US employer with remote or hybrid employees who work outside of Illinois (but reports to a supervisor or office in the state) must pay special attention to HB 3129.

• “Pay scale and benefits” broadly defined

“Pay scale and benefits” are defined as the “wage or salary, or the wage or salary range, and a general description of the 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, set by reference to 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, as applicable.”

This definition continues the trend we have seen in other states of requiring inclusion of stock-based compensation, but without any clear guidance as to what to disclose in this regard. A “general description” is somewhat nebulous (e.g., does this mean simply describing the type of equity award but without assigning value?) and we recommend working with counsel to determine how your company will interpret this. 

• Hyperlinking is ok!

Employers can satisfy the disclosure requirement by hyperlinking to a publicly viewable webpage that includes this information. In addition, posting a relevant and up-to-date general benefits description in an easily accessible, central, and public location on an employer’s website and referring to the website posting in the job posting satisfies the benefits posting requirement.

• Job postings are NOT required–but disclosure to an applicant is

HB 3129 specifies that it does not require an employer to make a job posting. However, if a public or internal posting for a job, promotion, transfer or other employment opportunity has not been made available to the applicant, an employer (or employment agency) must disclose the position’s pay scale and benefits to an applicant prior to any offer or discussion of compensation, and at the applicant’s request.

• Opportunities for promotion must be announced within 14 days of external posting

Employers must announce, post or otherwise make known all opportunities for promotion to all current employees no later than 14 calendar days after the employer makes an external job posting for the position (except for positions in the State of Illinois workforce).

• Recordkeeping requirements for five years

Along with the already-required recordkeeping under the Act (requiring employers to preserve the name, address, occupation and wages paid to employees), the law will require employers to maintain pay scale and benefits records for each position, as well as the job posting for each position, for at least five years.  

• Penalties and enforcement

Any person who claims to be aggrieved by a violation of HB 3129 can file a complaint with the Illinois Department of Labor within one year of the date of the alleged violation. IDOL has authority to investigate and if a violation is found, the agency will issue a notice to the employer that includes the applicable penalty and a period to cure the violation. A job posting violation will be considered as one violation regardless of the number of duplicative postings listing the job opening.

Penalties vary depending on whether violating postings are active or “not active” when IDOL issues the notice of violation, as well as the number of prior violations:

• Active Postings: cure periods and fines range from a 14-days cure period and up to $500 for the first offense, to no cure period and a fine not to exceed $10,000 for third and subsequent offenses. If an employer commits a third offense, it will incur automatic penalties without a cure period for five years, but if it completes the five-year period without any additional offenses, any future offense will count as a first offense. However, if an employer receives a notice of violation during the five-year period, the five-year period restarts.
• Not Active Postings: fines range from up to $250 for the first offense to up to $10,000 for third and subsequent offenses. IDOL will make a determination as to whether a job posting is “not active” by considering the totality of the circumstances, including (but not limited to) whether the position has been filled, the length of time the posting has been accessible to the public, the existence of a date range for which a given position is active, and whether the employer is no longer accepting applications for the position.

For both types of job postings, the first offense may be a single violating job posting or multiple violating job postings that the IDOL identifies at the same time, while second and third offenses are single job postings. IDOL has discretion to determine the amount of fines, as well as to waive civil penalties.

Governor Pritzker is expected to sign the bill into law–and we’re watching. Stay tuned here for updates.

2. HB 2862: Employers who use temporary employees will have new obligations if amendments to Illinois Day and Temporary Labor Services Act become law

If Governor Pritzker signs HB 2862 into law, employers who use temporary employees will have new obligations, including providing information on their regular employees’ compensation to staffing companies and documenting and keeping records of training provided to the staffing company employee. We highlight important points below.

Staffing companies required to pay staffing company employees assigned to a client for more than 90 days equal to client’s “comparable” regular employee

For temporary workers assigned to a client for more than 90 calendar days, the staffing company will be required to pay the same wages and benefits as the client provides to its lowest paid comparable employee. (In lieu of providing benefits, the staffing company can pay its employee “an hourly cash equivalent of the actual cost of benefits.”)

• To be comparable, the client’s employee must have the same seniority and perform the “same or substantially similar” work as the staffing company employee. If there is no comparable employee, the staffing company must pay the same wages and benefits as the client provides to its lowest paid employee with “the closest level of seniority.”
• The bill does not specify whether the 90 calendar days must be consecutive, or whether that threshold would be satisfied by aggregating the number of days an employee is assigned to the client over the course of a year (or some other time period). Presumably, the threshold is 90 consecutive days, but that remains unclear.

Employers using temporary employees are obligated to provide their regular employees’ information to staffing company

Under the bill, employers who use temporary employees would be required to provide the staffing company with information regarding their regular employees’ job duties, pay, and benefits upon request to allow the staffing company to comply with the equal pay and equal benefits obligations explained above.

Staffing companies–and clients–have to meet new health and safety-related requirements

Before a staffing company employee starts to work at a client’s worksite, the client must:

• Document and inform the staffing company employee of any anticipated job hazards to be encountered
• Review the safety and health awareness training the staffing company employee received from the staffing company to determine whether such training addresses the recognized hazards for the industry
• Provide specific training in the particular hazards of the worksite; and
• Document and maintain records of worksite-specific training and confirm to the staffing company within three business days of the training that such training was completed. (And if the client requires a staffing company employee to switch roles, updated safety training must be given to address any specific hazards of the new role.)

The client must also allow the staffing company to visit the worksite to confirm the training and information provided to staffing company employees.

Before placing a staffing company employee with a client, the staffing company must:

• Inquire about the client’s safety and health practices and disclose known job hazards to the employee
• Provide general safety training to employees about recognized industry hazards and document that training
• Provide a general description of their safety training to the client at the outset of a placement
• Provide employees with the Department of Labor’s hotline to report safety concerns; and
• Tell employees who to report safety concerns to at the workplace.

Labor disputes

Under the bill, the staffing company must provide notice to employees informing them that they have the right to refuse work for a client where they would have to cross a picket line, and that such a refusal will not prejudice the employee’s right to receive future assignments.

Penalties

Penalties for violations of the new law range from $100 to $18,000 for a first violation, and $250 to $7,500 for each repeat violation. The law also allows the Illinois Attorney General to request that a circuit court suspend or revoke a temporary agency’s registration for any violations of the new law.

Keep watch here for updates on this bill, which is expected to be signed by Governor Pritzker and would be effective immediately. If signed into law in its current form, employers who use temporary workers will need to ensure they have procedures in place and train employees to meet the new requirements.

Illinois employers should check back here for updates on pending bills and other developments impacting Illinois employers, and as always, contact your Baker McKenzie employment attorney for your employment law needs.