The Illinois Supreme Court just handed union employers with broad management rights clauses in their collective bargaining agreements (CBA) a win. On March 23, 2023 the Illinois Supreme Court affirmatively answered a certified question (Does Section 301 of the Labor Management Relations Act preempt BIPA claims asserted by bargaining unit employees covered by a collective
Illinois Employers: Time to Revise Your Leave Policies
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.
BIPA Liability in the Billions? Illinois Employers Beware: Claims Accrue with EACH Separate Scan or Transmission
Illinois employers, do you utilize any workforce monitoring or security measures, such as time clocks, that involve individuals’:
- Retina or iris scans
- Scans of hand or face geometry
- Biometric information (information based on the above that is used by the company to identify an individual)
If so, read ahead because the Illinois Supreme Court just decided that doing so, without strict compliance with the Illinois Biometric Information Privacy Act (BIPA), could be a multi-billion dollar mistake.
In Cothron v. White Castle System, Inc. (issued February 17, 2023), the Court held that a separate BIPA claim accrues 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. Employers subject to BIPA now have no margin of error, because noncompliance with sections 15(b) or 15(d) of BIPA could mean cost-prohibitive–even ruinous–damages for the company.…
Continue Reading BIPA Liability in the Billions? Illinois Employers Beware: Claims Accrue with EACH Separate Scan or Transmission
One Limitations Period for All: Illinois Supreme Court Holds All Claims Under BIPA Have a Five-Year Statute of Limitations
Employers will now have to contend with a five-year statute of limitations for all employee claims under the Illinois Biometric Information Privacy Act (BIPA). On February 2, 2023, in Tims v. Black Horse Carriers, the Illinois Supreme Court held that a five-year statute of limitations applies to all BIPA claims—even those that are tied to the publication of an individual’s data and could presumably be subject to a one-year limitations period “for publication of matter violating the right of privacy.” The Court held that the legislative intent and purpose of BIPA, and the fact that BIPA does not have its own statute of limitations, favor all BIPA claims being subject to the state’s “catchall” five-year limitations period.
Plaintiff Tims filed a class-action complaint against his former employer, Black Horse, alleging that Black Horse violated section 15(a) of BIPA (providing for the retention and deletion of biometric information), and sections 15(b) and 15(d) of BIPA (providing for the consensual collection and disclosure of biometric identifiers and biometric information). Specifically, Tims alleged that Black Horse required its employees to use a fingerprint authentication time clock, and that Black Horse violated BIPA because it (1) failed to institute, maintain, and adhere to a publicly available biometric information retention and destruction policy required under section 15(a); (2) failed to provide notice and to obtain employees’ consent when collecting their biometrics, in violation of section 15(b); and (3) disclosed or otherwise disseminated employees’ biometric information to third parties without consent in violation of section 15(d).
Black Horse moved to dismiss the complaint as untimely, arguing that it was barred by the one-year statute of limitations in section 13-201 of the Illinois Code of Civil Procedure (Code). Black Horse argued that claims brought under BIPA concern violations of privacy, therefore the one-year limitations period in section 13-201 governing actions for the “publication of matter violating the right of privacy” should apply to such BIPA claims.
The circuit court rejected Black Horse’s argument, and denied the motion to dismiss. In doing so, the court held that violations of all three sections of BIPA were subject to Illinois’ “catchall” five-year limitations period in section 13-205 of the Code.
The appellate court, however, distinguished the applicable statute of limitations under BIPA based on the type of violation alleged. It held that violations of section 15(c) (prohibiting the sale, lease, trade or other profit from biometric information) and 15(d) (prohibiting the disclosure, redisclosure or dissemination of biometric information) were subject to the one-year limitations period in section 13-201 of the Code, while violations of section 15(a) (requiring a written policy with a retention schedule and guidelines for destroying biometric information), 15(b) (requiring notice and the specific purpose and length of collection of biometric information prior to collection), and 15(e) (requiring confidentiality and protective measures in the storage and transmission of biometric information) were subject to the five-year “catchall” limitations period in section 13-205.…
Continue Reading One Limitations Period for All: Illinois Supreme Court Holds All Claims Under BIPA Have a Five-Year Statute of Limitations
Illinois on Verge of Requiring Employers to Provide 40 Hours of Paid Leave for “Any Purpose”
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”
Illinois Employer Summer Checklist: 5 Recent Changes You Should Know
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.
Continue Reading Illinois Employer Summer Checklist: 5 Recent Changes You Should Know
Masks Off for Employees? What Employers Should Keep in Mind As States Lift Mask Mandates
As the Omicron wave recedes, a raft of states have announced plans to lift their mask mandates.
In the past few days alone, California, Connecticut, Delaware, Illinois, Massachusetts, Nevada, New Jersey, New York, Oregon, and Rhode Island have announced changes to their face covering rules. And if the number of Omicron cases continues to dwindle…
Illinois Employers: No Workers’ Compensation Preemption for BIPA Claims
Illinois employers have been waiting for answers on two important questions regarding the Illinois Biometric Information Privacy Act (BIPA):
- Whether the Illinois Workers’ Compensation Act (the Compensation Act) preempts BIPA statutory damages, and
- Whether BIPA claims accrue each time a person’s biometric information is scanned or transmitted without informed consent–or just the first time.
Illinois Employers: Ten Top Developments for 2022
Illinois employers have a plethora of new laws to keep up with for 2022. From new Chicago and Cook County patron vaccination orders, to new laws limiting restrictive covenants, to pay data reporting (and more!), new Illinois laws are certain to make for a busy 2022 for Illinois employers. Here are 10 changes employers should know now as we get the ball rolling in 2022.
Chicago and Cook County Vaccination Orders Require Some Employers to Check Vaccination Status of Employees and Require Testing for Unvaccinated Employees
Employers at restaurants, bars, gyms, and other establishments in Chicago and Cook County have already started scrambling to implement patron vaccination requirements–and requirements that they obtain the vaccination status of their employees and require weekly testing for employees who aren’t fully vaccinated. As of January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11 took effect. Under the Orders, covered businesses (including establishments where food and beverages are served, gyms and fitness venues, and entertainment and recreation venues in areas where food and beverages are served) must:
- Turn away patrons age 5 and over entering the indoor portion of an establishment unless they show a CDC COVID-19 Vaccination Record Card or an official immunization record (or a photo of the same) from the jurisdiction, state, or country where the vaccine was administered, reflecting the person’s name, vaccine brand, the date(s) administered and full vaccination status (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine). There are certain narrow exceptions, such as allowing individuals inside for 10 minutes or less to carry out food or use the bathroom
- Post signage informing patrons of the vaccination requirement
- Develop and maintain a written record of the protocol for implementing and enforcing the Orders’ requirements
While covered businesses that are employers do not have to require employees to be vaccinated, they must:
- determine the vaccination status of each employee by requiring each vaccinated employee to provide acceptable proof of vaccination status (including whether the employee is fully or partially vaccinated), and maintain a record of each employee’s vaccination status; and
- require COVID-19 testing for employees who are not fully vaccinated. Employees who are not fully vaccinated and who report at least once every 7 days to a workplace where there are others present must be tested for COVID-19 at least once every 7 days and must provide documentation of the most recent COVID-19 test result to their employer no later than the 7thday following the date on which the employee last provided a test result.
Employers with 100 or more employees must also comply with the Occupational Safety and Health Administration Emergency Temporary Standard (OSHA ETS), at least for now. The US Supreme Court heard oral argument on whether to block the ETS at a special January 7 session, but until the Supreme Court issues its ruling, the ETS stands, requiring employers with at least 100 employees to implement and enforce a policy that mandates employees to be fully vaccinated or to submit to weekly COVID-19 testing and mask-wearing. For more on the Chicago and Cook County Orders and the OSHA ETS, see our blog here.…
Continue Reading Illinois Employers: Ten Top Developments for 2022
Chicago and Cook County Employers: Ring in the New Year with New COVID Requirements for Patrons and Employees
It could be a hectic start to 2022 for some Chicago and Cook County employers. On January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11 took effect, mandating proof of full vaccination (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine) for patrons age five and older before they can enjoy certain public establishments.
Though the Orders are largely patron-focused (and employees are likely not “patrons” under the Orders), businesses in Chicago and Cook County will also need to comply with the Orders’ requirements that employers ensure employees are fully vaccinated or produce weekly negative COVID-19 tests.
Here’s what Chicago and Cook County employers need to know now.
Which establishments are covered?
- Establishments where food or beverages are served, including but not limited to restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms
- Gyms and fitness venues, including but not limited to gyms, recreation facilities, fitness centers, yoga, pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes
- Entertainment and recreation venues in areas where food or beverages are served, including but not limited to movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers
What if you own a restaurant that only provides carry out? You won’t need to check the vaccination status of every patron coming in to grab food and go. Individuals entering an establishment for less than 10 minutes for the purpose of ordering and carrying out food, making a delivery, or using the bathroom are exempted. In addition, there are other exemptions, including for individuals who have previously received a medical or religious exemption as long as they provide the establishment proof of the exemption and a COVID-19 test administered by a medical professional within the last 72 hours prior to entering the establishment.…
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