Although the summer months may mean rest and relaxation for some, June, July, and August have proven to be anything but quiet for the Illinois Legislature and Governor JB Pritzker. This midyear wave of activity resulted in sweeping changes to the state’s employment law landscape.
This Insight highlights some of the most significant developments that will impact Illinois employers and offers an overview of the changing legal landscape in Illinois. Applying these new laws involves a fact-specific inquiry, especially in light of the many statutory ambiguities discussed more fully below, as well as the inherent uncertainty surrounding the interplay of new and existing authorities and the current lack of interpretive guidance from the Illinois Department of Labor (IDOL).
Unless otherwise noted, all new laws and amendments discussed below will take effect on January 1, 2024; however, employers should take measures now to ensure that they are prepared to comply with the new laws come the new year.
I. New Job Posting Disclosure Obligations
The Illinois Legislature adopted several amendments to the state’s Equal Pay Act in early June. Governor Pritzker signed the legislation into law on August 11, 2023, and Illinois employers will be subject to the following new requirements beginning on January 1, 2025:
- Employers with 15 or more employees (the law does not specify whether these employees must be in Illinois or may be elsewhere) must disclose pay scale, benefits, and other compensation information (collectively, “Compensation and Benefit Information”) in job postings for positions that either (i) will be performed partly or wholly in Illinois or (ii) report to a supervisor, office, or worksite in Illinois (collectively, “Covered Positions”).
- If Compensation and Benefit Information was not previously disclosed on a job posting, all employers, regardless of size, must disclose such information (i) at an applicant’s request and(ii) before any offer or discussion of compensation with the applicant.
- All employers, regardless of size, must disclose promotional opportunities for Covered Positions to current employees within 14 days of externally posting the opportunity.
Employers cannot avoid these requirements by merely outsourcing advertisements to third parties. Employers that engage third parties to announce, post, publish, or otherwise advertise a Covered Position must disclose the relevant Compensation and Benefit Information to such third parties so that the Compensation and Benefit Information may be included in their job postings.
Notably, nothing in these amendments to the Equal Pay Act requires an employer to publish a job posting or advertise a position using a job posting; these amendments apply only when the employer chooses to advertise an opening position using a job posting.
Because these amendments impose obligations on employers with regard to not only current employees but also prospective employees, the statute’s amendments include a right of action to “any person [who] claims to be aggrieved by a violation,” irrespective of whether those individuals are prospective employees, employees, or former employees.
The IDOL will enforce the law and may initiate investigations into violations on its own accord, as well as upon receiving a complaint. For purposes of enforcement, a job posting that violates the new requirements will be considered a single violation, notwithstanding the number of duplicative postings. If the IDOL determines that an employer violated the new law, the employer will be given time to cure the violation (unless the employer has twice previously violated the law). If the violation is not timely cured, then the IDOL may assess penalties not to exceed $250–$10,000 (depending on whether the unlawful posting is active and the employer’s previous number of violations). Importantly, the law does not establish a private right of action.
II. New and Expanded Leave Benefits
Illinois law has long granted employees paid and/or unpaid time off for specific, limited use. Recent legislation expands the list of qualifying reasons for leave, including supplying certain eligible employees with paid leave for “any reason.”
Amendments to the Illinois Victims’ Economic Security and Safety Act
For the second consecutive year, legislators have amended the scope of leave reasons permitted under the Illinois Victims’ Economic Security and Safety Act (VESSA). VESSA applies to all Illinois employers and gives eligible employees up to 12 weeks of unpaid, job-protected leave per year. This year’s amendments add three additional qualifying reasons for VESSA leave (collectively, “Violent Crime Bereavement”):
- to attend the funeral, an alternative to a funeral, or the wake of a “family or household member” (as defined in 820 ILCS 180/10(12)) killed in a crime of violence;
- to make arrangements for a family or household member killed in a crime of violence; and
- to grieve a family or household member killed in a crime of violence.
Unlike other VESSA-qualifying reasons for leave, however, leave used for Violent Crime Bereavement will be subject to additional restrictions and regulations.
New Child Bereavement Leave
Beginning in 2024, under the Child Extended Bereavement Leave Act (CEBL), employers with 50 or more full-time employees in Illinois must provide employees who experience the loss of a child by suicide or homicide with unpaid, job-protected leave. The CEBL broadly defines “child” to include a biological child, adopted child, foster child, stepchild, legal ward, or a child of a person standing in loco parentis.
The amount of CEBL leave to which an eligible employee will be entitled varies depending on the size of the employer. Employees who work for employers with 250 or more full-time employees in Illinois will be entitled to up to 12 weeks of leave per year, while employees who work for employers with 50 to 249 full-time employees in Illinois will be entitled to up to six weeks of leave per year. Regardless of the size of the employer, employees will be required to use their CEBL leave within one year of the employee notifying the employer of their child’s passing.
Importantly, the CEBL permits employers to require employees to give advanced notice (when reasonable) of their need for CEBL leave, as well as to submit reasonable documentation supporting the employee’s need for CEBL leave. Reasonable documentation may include a death certificate, published obituary, or written verification of death, burial, or memorial service from a mortuary, funeral home, burial society, crematorium, religious institute, or government agency. In addition, if employees use CEBL leave, they will not be entitled to also use leave under the Illinois Family Bereavement Leave Act in connection with the death of the same child.
Expanded Donation Leave
The new year will bring a new title and new benefits under the Employee Blood Donation Leave Act, which currently requires employers with 51 or more employees (the law does not specify whether these employees must be in Illinois or may be elsewhere) to supply eligible employees with up to one hour of paid leave every 56 days to donate blood. Beginning January 1, 2024, the law will be known as the Employee Blood and Organ Donation Leave Act (“Donation Act”). In addition to benefits for donating blood, the Donation Act will give eligible employees up to 10 days of paid leave in any 12-month period to donate organs or tissue. Notably, employees are entitled to leave under the Donation Act only if they have been employed on a full-time basis for at least six months and have received approval from their employer to participate in blood, organ, or tissue donation.
Paid Leave for Any Reason
Finally, beginning in 2024, the Paid Leave for All Workers Act (PLAW) will provide eligible employees with up to 40 hours of paid leave per year to be used for any reason. As we previously reported, unless an exception applies, the PLAW broadly applies to all private employers and, in addition to affirmatively requiring employers to grant leave to employees, contains a robust list of additional employer obligations. Included among these responsibilities are recordkeeping and notice requirements and a prohibition on requiring employees to submit documentation or other proof to support a request for leave. The IDOL, the agency charged with enforcing the PLAW, has thus far published only limited guidance on the PLAW. Additional insight from Epstein Becker Green attorneys regarding the PLAW is available here, but given the complexities of the law and the lack of available guidance, it is vital that employers begin assessing and developing a PLAW-compliant leave program well in advance of the new year.
III. New Commuter Benefits
Time off is not the only benefit to which eligible employees may be entitled as of January 1, 2024. The Transportation Benefits Program Act (TBPA) will require employers with 50 or more “covered employees” in Cook County and 37 surrounding townships to furnish pre-tax commuter benefits to covered employees so that they may purchase a public transit pass with pre-tax dollars. The TBPA defines “covered employees” as those employees who work for the employer on a full-time basis for at least 35 hours per week. Employers subject to the new law will be required to offer covered employees the pre-tax commuter benefits on their first full pay period after the employee’s 120th day of employment.
IV. Extension of Liability to Employers Under the Gender Violence Act
The Illinois Gender Violence Act (GVA) has long supplied victims of gender-related violence with a channel to recover damages and injunctive and other relief from alleged perpetrators. Recent amendments to the GVA will soon permit victims to also sue employers whose employees or agents commit gender-related violence in the workplace, so long as the violence arises “out of and in the course of employment with the employer.”
The GVA amendments make a series of changes to the law, including:
- incorporating the definitions of “employer” and “employee” from the Illinois Human Rights Act;
- broadly defining “workplace” to include any building, real property, or parking area under the employer’s control; any location the employee uses to perform their job duties; and any activities that occur at an employer-sponsored event off the employer’s premises;
- expanding the definition of “gender-related violence,” which the GVA treats as a form of sex discrimination, so that, beginning next year, in addition to including acts of violence or physical aggression, physical intrusion of a sexual nature, and threats of such violence or intrusion, “gender-related violence” will also include acts of “domestic violence,” as that phrase is defined under VESSA; and
- establishing a four-year statute of limitations for victims to bring GVA claims against employers; provided, however, that if the victim was a minor when the violence occurred, the statute of limitations will not run until the victim reaches 22 years of age.
The biggest change to the GVA comes from the addition of a new Section 11, which outlines the specific circumstances under which liability may be imposed on employers for gender-related violence committed in the workplace by employees or the employer’s agents. Specifically, Section 11 imposes liability if the gender-related violence occurs “(i) while the employee was directly performing their job duties and the gender-related violence was the proximate cause of the injury or (ii) while the employer’s agent was directly involved in the gender-related violence and the performance of the contracted work was the proximate cause of the injury.” An employer will be liable for such gender-related violence if the employer failed to (i) act in a manner consistent with how a reasonable person would act in similar circumstances; (ii) supervise, train, or monitor the perpetrating employee; or (iii) investigate and remediate previous reports of similar conduct by the perpetrating employee or agent.
The exact mechanics of the GVA amendments are still unclear. For instance, the amendments lack an explicit effective date; some sources are reporting that the amendments will go into effect as of January 1, 2024, while other sources claim the amendments had immediate effect. For now, employers should be aware that, given the broad definitions included in the GVA amendments, any act of sexual harassment in the workplace that involves actual or threatened physical conduct may trigger the GVA and its expansive statute of limitations. As such, they may want to consider revising their anti-harassment policies and trainings to address the GVA’s recent amendments.
V. Expanded Protections for Temporary Workers
When Governor Pritzker signed HB 2862 into law on August 4, 2023, he immediately amended the Illinois Day and Temporary Labor Services Act (DTLS) to give day and temporary workers in the state four significant new rights and protections.
Comparable Pay for Temporary Workers
Similar to the New Jersey Temporary Workers’ Bill of Rights, the amended DTLS requires temporary labor service agencies to pay temporary workers who are assigned to a third-party client for more than 90 days wages and benefits (or the cash value of such benefits) equal to the lowest-paid comparable direct-hire employee at the third-party client. Direct-hire comparators are those with seniority levels equal to the temporary worker and who perform the “same or substantially similar” work as the temporary worker under similar working conditions. If no such comparator exists, the DTLS permits temporary labor service agencies to supply temporary workers with wages and benefits (or the cash value of such benefits) equal to the lowest-paid direct-hire employee with the closest seniority level to the temporary worker. To help temporary labor service agencies comply with this new equal pay mandate, if a temporary labor service agency requests, third-party clients must share with temporary labor service agencies “all necessary information related to job duties, pay, and benefits” of direct-hire employees. The DTLS treats a third-party client’s failure to comply with such a request as a notice violation for which damages and other penalties are available.
Advance Notice for Temporary Workers
The amended DTLS requires temporary labor service agencies to provide temporary workers with advanced notice of (i) any ongoing strike, lockout, or “other labor trouble” at a third-party client to which the worker is assigned and (ii) the worker’s right to refuse the assignment without prejudice to receiving another assignment. Importantly, the amendments require temporary labor service agencies to distribute this notice to temporary workers in a language that they “understand.” Notably, the amended DTLS treats each failure to produce the required notice as a separate and distinct notice violation under the law.
Safety Training for Temporary Workers
The amended DTLS imposes new obligations on both temporary labor service agencies and third-party clients to disclose and train temporary workers regarding safety hazards at the worksite. With respect to temporary labor service agencies, before assigning a temporary worker to a third-party client, the temporary labor service agency must:
- gather information and assess the third-party client’s “safety and health practices and hazards,” which may include an on-site inspection, and if a temporary labor service agency becomes aware of an existing job hazard at the third-party client’s site, the temporary labor service agency must:
- alert the third-party client of the hazard,
- encourage the third-party client to correct the hazard,
- document this encouragement, and
- remove the temporary worker if the third-party client fails to correct the hazard;
- provide the temporary worker with (i) general safety training (in the worker’s preferred language) regarding “recognized industry hazards” that the worker may encounter at the third-party client’s worksite, (ii) the IDOL’s hotline number for reporting safety hazards, and (iii) the identity of the person to whom safety concerns should be reported, and also document and maintain records regarding this training and notice; and
- furnish the third-party client with a general description of the safety training that the temporary labor service agency delivered to the temporary worker, including topics covered and whether the training was electronic or on paper.
With respect to third-party clients, before a temporary worker begins work, the third-party client must:
- document and give notice to the temporary labor service agency of any anticipated job hazards the temporary worker may encounter;
- review the safety training that the temporary labor service agency delivered to the temporary worker to ensure that it addresses recognized industry hazards relevant to the third-party client; and
- provide the temporary worker with training regarding the specific job hazards the worker may encounter at the third-party client’s worksite, document and maintain records recording this training, and timely notify the temporary labor service agency that such training has been completed.
Notably, if a temporary workers’ job duties or worksite changes during the assignment such that the worker is exposed to new safety hazards, then before the temporary worker’s assignment may be modified, the third-party client must notify the temporary labor service agency and the temporary worker of the new hazards and supply the temporary worker with any relevant specific safety training and personal protective equipment.
Under the new amendments, a temporary labor service agency or temporary worker may refuse a new job task at the third-party client’s worksite if (i) the task has not been reviewed with the worker or (ii) the temporary worker lacks appropriate training for the task.
The amended DTLS expands the available penalties and establishes a new right of action for any broadly defined “interested party” to sue temporary labor service agencies and third-party clients, but only after exhausting their claims administratively with the IDOL.
The DTLS amendments did not modify the definition of “day and temporary laborers.” As such, the DTLS continues to broadly apply to all temporary workers, except those providing services of a professional or clerical nature, who are contractually assigned to third-party clients through temporary labor service agencies.
The IDOL also already published emergency enforcement rules regarding the amended DTLS, but these rules will expire on the earlier of January 1, 2024, or the date on which the IDOL adopts permanent enforcement rules.
VI. New Protections for Freelance Workers
Temporary workers are not alone in receiving new protections under Illinois law. Beginning July 1, 2024, freelance workers will gain new rights and benefits pursuant to the Freelance Worker Protection Act (FWPA). With a few exceptions (including for workers furnishing construction services or services as “employees” under Section 10 of the Employee Classification Act or Section 2 of the Illinois Wage Payment and Collection Act ), the FWPA defines “freelance workers” as independent contractors who contract with any non-governmental person or entity to provide products/services in Illinois or with an entity located in Illinois worth at least $500 (either in a single contract or in the aggregate of all contracts with a single entity) within a 120-day period.
If a worker satisfies that definition, the FWPA will require the hiring entity to pay the freelance worker all compensation due under a contract within 30 days of the worker completing their contracted services (or such earlier date as identified in the parties’ contract). The FWPA will prohibit a hiring entity from conditioning timely payment on the freelance worker’s acceptance of less compensation once the freelance worker begins performing the contracted services.
The FWPA will also require freelance workers and hiring parties to enter into written contracts that identify the following information:
- the name and contact information of both parties (including the hiring party’s mailing address);
- an itemized list of all products and services the freelance worker will supply, including the value of the products and services and the rate and method of compensation for such products and services;
- the date on which payment is due to the freelance worker; and
- if the hiring party requires an invoice to timely compensate the freelance worker, the date by which the freelance worker must submit to the hiring party an invoice of products and services rendered.
Under the FWPA, the hiring entity must retain the contract for at least two years and distribute a copy of the parties’ contract to the freelance worker. The law does not explicitly identify by when the hiring entity must give a copy of the contract to the freelance workers, so we hope the IDOL will publish further guidance on this point. To help parties comply with these new obligations, the IDOL plans to publish a model freelance worker contract.
In addition to imposing affirmative obligations on the parties, the FWPA will prohibit hiring entities from discriminating, harassing, or retaliating against freelance workers for exerting their rights under the FWPA. Relief will be available to freelance workers under the FWPA through both an administrative complaint process with the IDOL and civil litigation. Notably, freelance workers will be permitted to sue hiring entities on behalf of themselves and others similarly situated without first exhausting administrative remedies. The penalties and damages available under the FWPA will vary depending on the type of violation.
VII. Further Access to Personnel Records / Electronic Distribution of Employee Notices
The Illinois Personnel Record Review Act (PRRA) outlines the specific circumstances under which employees may inspect and obtain copies of personnel records. HB 3733 amends the PRRA to remove restrictions for obtaining copies. As such, employers will be obligated to provide requesting employees with copies of their personnel records via email or mail, regardless of whether the employee can prove that they are unable to inspect the records in person. Importantly, employers may continue to charge requesting employees a fee for making copies of the personnel records up to the actual cost of the copies.
HB 3733 also imposes new obligations on employers regarding distributing mandatory employee notices and summaries under the Illinois Minimum Wage Law, Illinois Equal Pay Act, Illinois Wage Payment and Collection Act, and Illinois Child Labor Law. For employees who do not regularly report to a physical worksite (e.g., remote employees), HB 3733 requires employers to distribute the aforementioned laws’ mandatory notice materials by:
- posting the materials on the employer’s website, so long as the employer regularly uses the website to communicate with employees and employees can regularly access the website; or
- posting the materials on the employer’s intranet site, so long as the employer regularly uses the intranet site to communicate with employees and employees can regularly access the intranet site.
Much like the GVA amendments, HB 3733 lacks an explicit effective date. As such, some sources are reporting that the law’s amendments will go into effect as of January 1, 2024, while other sources claim the amendments had immediate effect upon Governor Pritzker’s June 20, 2023, execution. Employers should err on the side of caution and be prepared to comply with the law’s new requirements now.
VIII. Limitation on Damages Available Against Striking Workers / New Penalties for Interfering with Labor Disputes
The Illinois Labor Dispute Act (LDA) outlines a number of protections and restrictions regarding employee, employer, and third-party actions during labor disputes. Two recent amendments to the LDA expand the protections available to striking workers.
First, HB 2907 further restricts the available relief that courts may issue in connection with labor disputes. Beginning in 2024, state courts will be prohibited from awarding monetary damages except for damage to an employer’s property under limited circumstances.
Second, HB 3396 will make it a Class A misdemeanor (punishable by a fine of at least $500) for anyone to interfere with, obstruct, or impede “a picket or other demonstration or protest” by placing an object in the public way.
IX. What Illinois Employers Should Do Now
To prepare for these changes to the legal landscape, employers with an Illinois workforce should do the following:
- Review and revise vacation, sick, paid time-off, and other leave policies, request forms, and procedures to comply with the new legislation.
- Develop a program for and train relevant personnel on administering pre-tax commuter benefits to eligible employees.
- Be diligent about providing employees with robust anti-harassment training and continue to document, thoroughly investigate, and (where appropriate) remediate complaints of sexual harassment. It may be helpful to conduct an audit of complaint procedures to ensure that human resources professionals, supervisors, and investigators understand their respective roles in the investigation process.
- Analyze contracts with temporary labor service agencies to ensure they identify each party’s respective obligations under the amended DTLS and include relevant indemnification and confidentiality provisions.
- Review and revise safety hazard policies for compliance with the amended DTLS and develop, deliver, and document relevant safety trainings for temporary workers.
- Prepare a template freelance worker contract that complies with the FWPA, and be prepared to timely administer payments for services and products under contracts entered into on or after July 1, 2024.
- Train human resources personnel and other relevant staff on responding to employees’ requests for personnel records and distributing relevant notices to remote employees.
- Review and update record retention policies and procedures to comply with the new legislation.
- Conduct a comprehensive review of current systems for posting internal and external job opportunities and revise them as necessary to comply with new job posting disclosure requirements as of January 1, 2025, including for those positions that are entirely remote.
- Continue to monitor the websites of the IDOL and other enforcement agencies for further guidance.
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