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Elizabeth Ebersole

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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 immediately 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.…

Continue Reading Illinois Employer Midsummer “Roundup”: Eight to Know and Two to Watch

On Tuesday, June 27, US antitrust agencies announced proposed changes to the premerger notification form and associated instructions and rules that implement the Hart-Scott-Rodino Act. Among other things, the proposed amendments require a labor market analysis including workforce categories, geographic information, and details on labor and workplace safety violations.

The proposed amendments are intended…

With special thanks to presenters Elif Nur Çakır Vurgun (Türkiye), Johan Botes (South Africa), Joanna Matthews-Taylor (United Arab Emirates), Christiana O’Connell-Schizas (Saudi Arabia) and Ghada El Ehwany (Egypt).

In this session, US-based multinational employers with business operations in the Middle East and Africa region hear directly from Elizabeth Ebersole and local practitioners on the major…

Join us for a four-part webinar series as our US moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. US-based multinational employers with business operations in Asia Pacific, Europe, the Middle East and Africa, and the Americas regions will hear directly from local practitioners on the…

March 14, 2023, is recognized as Equal Pay Day in the US. This date symbolizes how far into the year women must work to earn the same amount that men earned in the previous year. Because women earn less, on average, than men (according to the US Census Bureau), they must work longer for…

As predicted, Governor Pritzker signed the “Paid Leave for All Workers Act” into law on Monday, March 13. Accordingly, beginning January 1, 2024, Illinois employers must provide most employees with a minimum of 40 hours of paid leave per year to be used for any reason at all–not just for sick leave.

This year has started with a bang for Illinois employers. Days into 2023, the legislature passed the Paid Leave for All Workers Act (the “Act”), which would require Illinois employers to provide most employees with a minimum of 40 hours of paid leave per year to be used for any reason at all–not just for sick leave. Governor Pritzker has announced he looks forward to signing the legislation. If he does, Illinois will join Maine and Nevada and become the third state to require paid leave for employers for “any” reason. If signed, the bill will take effect January 1, 2024, and will apply to all employers with at least one employee working in Illinois.

Here’s what Illinois employers need to know now.

Who is covered–and who is not

Under the Act, an employee who works in Illinois is entitled to earn and use up to a minimum of 40 hours of paid leave (or a pro rata number of hours) during a 12- month period.

The Act looks to the Illinois Wage Payment and Collection Act to define “employer” and “employee” (with some additions and carve-outs), but essentially applies to all employers with at least one employee in Illinois and employees in Illinois with some notable exceptions:

  • Independent contractors under Illinois law
  • Individuals who meet the definition of “employee” under the federal Railroad Unemployment Insurance Act or the Railway Labor Act
  • College or university students who work part time and on a temporary basis for the college at which they are enrolled
  • Individuals who work for an institution of higher learning for less than two consecutive calendar quarters and who do not have an expectation that they will be rehired by the same institution
  • Employees working in the construction industry covered by bona fide collective bargaining agreements (CBAs)
  • Employees covered by CBAs with an employer that provides services nationally and internationally of delivery, pickup and transportation of parcels, documents, and freight.

Also, the Act does not apply to any employer that is covered by a municipal or county ordinance in effect on the effective date of the Act that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Thus, for instance, employers covered by the Chicago Paid Sick Leave Ordinance or Cook County Earned Sick Leave Ordinance won’t be required to provide paid leave under the Act.

When and how paid leave accrues under the Act

Paid leave accrues for employees at the rate of one hour of paid leave for every 40 hours worked, up to a minimum of 40 hours of paid leave per 12-month period (or a greater amount if the employer chooses to provide more than 40 hours of leave).

An employee would begin to earn paid leave on their first day of their employment (or the first day of the 12-month period, see below)–or on the effective date of the Act, whichever is later.

Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) will be deemed to work 40 hours in each workweek for purposes of paid leave accrual unless their regular workweek is less than 40 hours, in which case paid leave accrues on a pro-rata basis based on the employee’s regular workweek.

The “12-month period”

The 12-month period can be any consecutive 12-month period designated by the employer in writing at the time of the employee’s hire.

The employer can change the 12-month period if the employer gives notice to employees in writing prior to the change, and the change does not reduce the eligible accrual rate and paid leave available to the employee. If the employer changes the designated 12-month period, the employer must provide employees with documentation of the balance of their hours worked, paid leave accrued and taken, and their remaining paid leave balance.

Employees can start using paid leave after 90 days of employment (or the Act’s effective date)

Employees can begin using paid leave 90 days after the commencement of their employment or 90 days following the effective date of the Act, whichever is later-but employers can allow employees to use paid leave earlier.

Employees determine how much paid leave they need to use, but employers can set a reasonable minimum increment for the use of paid leave not to exceed 2 hours per day. If an employee’s scheduled workday is less than 2 hours a day, the employee’s scheduled workday will be used to determine the amount of paid leave.…

Continue Reading Illinois on Verge of Requiring Employers to Provide 40 Hours of Paid Leave for “Any Purpose”

Special thanks to Scott McMillen.

Looking Ahead: Exploring the Key Themes and Recommendations for US and Global Employers in 2023

Between maintaining business continuity and keeping your workforce safe, we know there’s been little time to track the rapidly changing employment, compensation and mobility law landscape — in Illinois, across the US, and globally.…

Join us for our webinar series, “2023: Discussion on The New Legal Restructuring Landscape in Europe,” providing an overview of the regulatory and commercial issues to consider when contemplating restructuring across multiple jurisdictions against the backdrop of today’s political and economic climate, both locally and globally.

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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.

  1. 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.

  1. 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.

Recordkeeping requirements

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.

…
Continue Reading Illinois Employer Summer Checklist: 5 Recent Changes You Should Know