Upcoming Changes to Illinois Employment Law

By Michelle M. Cain - McMahon Berger, PC

December 12, 2018

Illinois employers can expect significant changes to the state’s employment laws in 2019 after the legislature passed several bills that will have an impact on employers’ workplace obligations.  Here’s what employers should know about amendments to Illinois laws that will take effect in 2019.

Illinois Equal Pay Act

Effective January 1, 2019, the Illinois Equal Pay Act has been amended to include African-Americans within the statute’s protections.  Since 2003, the Act has prohibited Illinois employers from paying men and women different rates of pay for performing “the same or substantially similar work.”  The 2018 amendments to the Act apply the same standard to African-Americans, ensuring that they may not be paid less for similar work that requires “equal skill, effort, and responsibility” and is performed under “similar working conditions.”  The Act still excepts payment differences when made under a seniority or merit system, a system “that measures earnings by quantity or quality of production,” or when the difference is based on factors other than race or other unlawful discrimination.  It also continues to protect employees from retaliation for “inquiring about, disclosing, comparing, or otherwise discussing” employees’ wages or for “aiding or encouraging” an employee to exercise rights under the statute.

Illinois Service Employment Member and Reemployment Rights Act

In July 2018, the Illinois legislature passed the Illinois Service Employment Member and Reemployment Act, consolidating the prior employment protections for Illinois service members.  The statute incorporates the protections of the federal Uniformed Services Employment and Reemployment Rights Act, including those providing for leaves of absence for periods of military service, the right to reinstatement following service, and non-discrimination. The statute also provides that employees on military leave be credited with an average performance rating based on the three years preceding the military leave, full salary continuation for annual training up to 30 non-consecutive days per year, and continuation of contributions to an employee’s group health plan.  It provides a uniform enforcement process, permitting employees to bring private civil actions and the Attorney General to investigate and conciliate claims prior to filing a lawsuit to enforce the statute. It also requires employers to post a notice of rights and benefits under the Act.  The statute goes into effect on January 1, 2019.

Illinois Wage Payment Collection Act

The legislature amended the Illinois Wage Payment Collection Act to require employers to reimburse their employees for expenses incurred during the performance of their job duties.  Effective January 1, 2019, Illinois becomes the ninth state to mandate payment to employees for such expenses.  The amendment will require employers to reimburse an employee for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.”  The amendment defines “necessary expenditures” as “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.”  No reimbursement is necessary if expenditures are caused by the employee’s own negligence, are due to normal wear, or are due to theft, unless the theft was the result of the employee’s own negligence.  Additionally, if the employer has a written expense reimbursement policy and the employee fails to comply with that policy, no reimbursement is required.  Employers are also not required to reimburse employees for expenses not authorized or required by the employer.  Employees must be permitted at least 30 days to submit appropriate supporting documentation of expenditures to obtain reimbursement.

New Illinois Laws Already In Effect

In addition to changes to the laws and amendments effective on January 1, 2019, the Illinois legislature amended several other employment laws, effective in August 2018.

Illinois Nursing Mothers in the Workplace Act

Governor Rauner signed amendments to the Illinois Nursing Mothers in the Workplace Act on August 21, 2018 and the changes to the statute became effective on that date. The Act previously required employers to provide nursing mothers “reasonable unpaid break time” to express milk for a nursing infant child, and that the break time “must, if possible” run concurrently with any break time already provided.  The amendments require that the break time be paid, that breaks may continue up to one year after the child’s birth, and that the break time “may” run concurrently with any break time already provided to the employee.   In addition, under the prior version of the statute, employers were only required to provide nursing breaks if doing so would not “unduly disrupt the employer’s operations.”  Under the new amendments, the employer must comply with the law unless it can establish that it would create “an undue hardship” for the employer to provide breaks, as that term is defined under the Illinois Human Rights Act.

Illinois Human Rights Act

The Illinois Human Rights Act was amended on August 24, 2018 to include several new provisions employers should note.  The amendments now permit employees 300 calendar days – rather than the previous 180 days – from the date of the alleged violation to file a charge with the Illinois Department of Human Rights. The amendments also require Illinois employers to include a notice of employees’ rights under the IHRA in employee handbooks.  Additionally, employees may now opt out of the administrative investigation process conducted by the IDHR.  Within ten days of filing a charge, the IDHR must send the charging party a notice of his/her right to opt out of the investigative process.  The employee then has 60 days to file a written request for permission to opt out and the IDHR has ten days after that to respond.   If the request is granted, the employee has 90 days to file suit in state court.

As a result of these changes to the law, Illinois employers should review their policies in order to ensure compliance with the new and amended statutes.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.