New Laws On The Horizon For Illinois Employers
The Federal Speak Out Act
On December 7, 2022, President Biden signed the “Speak Out Act.” 42 U.S.C.A. §§ 19401 – 19404 (2022). This bipartisan legislation, passed by the U.S. Senate on September 29, 2022 and the House of Representatives on November 16, 2022, limits the enforceability of pre–dispute nondisclosure and non-disparagement clauses relating to sexual assault and sexual harassment claims. The Act takes effect immediately.
The Act prohibits pre-dispute nondisclosure and non-disparagement provisions in agreements between employers and current, former, and prospective employees, and independent contractors, and between providers of goods and services and consumers with respect to disputes involving sexual assault or sexual harassment. The Act covers agreements executed prior to its effective date but would only apply to claims arising after its effective date. It is important to note that the Act applies only to nondisclosure and non-disparagement clauses in agreements entered before a sexual assault or sexual harassment dispute has arisen. Therefore, the Act would not apply to separation or settlement agreement which resolve a claim that an employee has already raised. The Act includes a carveout for protecting trade secrets and proprietary information.
Employers that include nondisclosure and non-disparagement provisions in employment agreements, or confidentiality agreements should carefully review such documents to determine if the provisions are necessary and whether any sexual harassment and sexual assault claims should be explicitly excluded. Employers should further consider adding an exemption in standard release agreements containing nondisclosure and non-disparagement provisions for sexual harassment and sexual assault claims that have not previously been raised.
Amendment to the Illinois One Day Rest in Seven Act
On May 13, 2022, Governor J.B. Pritzker signed Senate Bill 3146, amending the One Day Rest In Seven Act (“ODRISA”), which will go into effect beginning January 1, 2023. The amendments impose heightened penalties on employers, require adjustments to rest periods and meal breaks, and impose notice requirements in which all employers must comply.
Prior to this amendment, ODRISA required an employee to have at-least 24 consecutive hours of rest in every “calendar week.” The “calendar week” is being replaced by a “consecutive seven-day period,” meaning that every employee is entitled to a 24-hour rest period in any consecutive seven-day period. 820 ILCS 140/2.
Also prior to the amendment, ODRISA required an employer to provide 20-minute meal periods to any employee who works for 7 ½ continuous hours or longer. 820 ILCS 140/3.
With the amendments, employers are now required to provide an additional 20-minute meal period for every additional 4 ½ continuous hours worked. The amendment explicitly states that a meal period does not include reasonable time using the restroom facilities.
The amendment also imposes a new requirement for employers to post a notice, which will be provided by the Director of Labor, summarizing the ODRISA requirements and information pertaining to the filing of a complaint. The notice must be posted in a conspicuous place on the employer’s premises where notices to employees are customarily posted. Notably, the amendment explicitly provides separate posting requirements for any employer that has employees who do not regularly report to a physical workplace (i.e., remote or traveling employees). In those circumstances, employers are to provide notice by email or on a website, regularly used by the employer to communicate work-related information, that all employees can regularly access, freely and without interference.
ODRISA currently imposes nominal penalties for employer violations. It provides that an employer will be guilty of a “petty” offense and subject to a fine of $25 - $100 for each offense. 820 ILCS 140/7. Post-amendment, however, employers will be guilty of a “civil” offense and subject to heightened monetary penalties – up to $250 per offense for an employer with fewer than 25 employees and up to $500 per offense for an employer with 25 or more employees. In addition, the amendments require employers to pay damages to affected employees (up to $250 or $500 respectively) for a total penalty of up to $500 or $1,000 per offense.
Employers should review their scheduling and meal break policies to ensure compliance with the new ODRISA provisions. Employers should further locate and post the notice provided by the Director of Labor as soon as it becomes available.
Amendment to the Illinois Family Leave Bereavement Act
On June 9, 2022, Illinois Governor JB Pritzker signed the Family Bereavement Act (“FBLA”) into law. FBLA amends the Illinois Child Bereavement Leave Act. Originally adopted in 2016, the Child Bereavement Leave Act required Illinois employers to grant employees unpaid leave to grieve the death of a child. 820 ILCS 154/10. The law goes into effect on January 1, 2023.
FBLA covers only Illinois employers that are subject to the federal Family and Medical Leave Act of 1993 (“FMLA”). Therefore, the FBLA does not apply to Illinois employers with fewer than 50 employees in a 75-mile radius.
The FBLA’s two major purposes are to (1) expand the definition of family members covered by the Act; and (2) include fertility-related losses as a reason an employee may use leave under the Act.
Under the Amendment, employees can take ten workdays of unpaid leave annually to grieve the death of any “covered family member.” FBLA expands the definition of “covered family member” to include an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. The Act broadly defines “domestic partners” as adults who are in a committed relationship, and such relationships are not limited to legally recognized partnerships.
FBLA broadens the scope of reasons for leave to include unpaid leave for a miscarriage, an unsuccessful round of intrauterine insemination or of an unsuccessful assisted reproductive technology procedure, a failed adoption match or an adoption that is not finalized because it is contested by another party, a failed surrogacy agreement, a diagnosis that negatively impacts pregnancy or fertility, or a stillbirth.
In addition to expanding the circumstances for which an employee can take unpaid bereavement leave, the FBLA provides specific provisions an employer must follow if they require an employee to submit “reasonable documentation” relating to their request for leave associated with pregnancy or adoption. While employers are not required to ask for documentation, if an employer requires an employee to provide reasonable documentation regarding requests for bereavement leave, the following documents constitute reasonable documentation: (1) a form from the health care practitioner who gave treatment; (2) documentation from the adoption agency showing a failed match or a contested adoption; and (3) documentation from the surrogacy agency showing a failed surrogacy agreement.
Amendments to the Illinois Business Corporation Act and Equal Pay Act
On March 23, 2021, Governor J.B. Pritzker signed Senate Bill 1480 into law, which amends the Illinois Business Corporation Act (805 ILCS 5, et. seq.) by requiring certain corporations to disclose workplace demographic information as a part of their annual reports filed on and after January 1, 2023. While the amendment was enacted on March 23, 2021, the reporting obligations are only now taking effect. These obligations apply to any employer required to file an Employer Information Report EEO-1 with the Equal Employment Opportunity Commission and the information reported should be substantially similar to the employment data reported under Section D of the EEO-1. It must be in a format approved by the Illinois Secretary of State.
SB 1480 also amended the Equal Pay Act of 2003 by requiring private-sector employers with over 100 employees in Illinois to obtain an “equal pay registration certificate” from the Illinois Department of Labor within three years after the effective date of SB 1480. To receive the certificate, covered employers must pay a filing fee and submit an equal pay compliance statement. Employers subject to the Illinois Equal Pay Act amendment are required to recertify their compliance with the Act every year. The amendment to the Equal Pay Act includes audit provisions, whistleblower protections, and imposes a civil penalty in an amount equal to 1% of the non-compliant employer’s gross profits.
Amendment of the Illinois Human Rights Act
On June 29, 2022, the Illinois Human Rights Act (775 ILCS 5, et. seq.) was amended, creating the Create a Respectful and Open Workplace for Natural Hair (“CROWN”) Act. The CROWN Act amends the definition of race to include “traits associated with race” such as “hair texture and protective hairstyles such as braids, locks, and twists.” As a result, the amendment prohibits discrimination on the basis of hairstyles associated with race. This amendment is effective January 1, 2023.
Amendment to the Illinois Employee Sick Leave Act
On May 13, 2022, Governor J.B. Pritzker signed Senate Bill 645, amending Section 21 of the Employee Sick Leave Act. The Employee Sick Leave Act (820 ILCS 191, et. seq.) allows an employee to use personal sick leave benefits for absences due to illness, injury, or medical appointment for the employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent or for personal care of a covered family member on the same terms an employee is able to use personal sick leave benefits for his or her own illness or injury. The amendment adds a provision that the rights afforded under the Act serve as the minimum standard in a negotiated collective bargaining agreement. This amendment is effective January 1, 2023.
Amendment 1 to the Illinois Constitution
On November 8, 2022, Illinois voters passed Amendment 1, the Illinois Right to Collective Bargaining Measure, which amends the Bill of Rights Article of the Illinois constitution. Ill. Const. art. I, § 25. This workers’ rights amendment provides that employees have a “fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work.” It also prohibits any law that “interferes with, negates, or diminishes the right of employees to organize and bargain collectively.” Id.
Employers should consult with legal counsel regarding best practices and compliance with the newly enacted laws. We further recommend reviewing and updating current employment manuals, policies, applications, and forms. Feel free to contact the Employment Law Practice Group with any questions regarding the interpretation of these new laws and how they may impact the workplace. We would be happy to help as you navigate through these changes.
From all of us at Heyl Royster, we wish you a happy and safe 2023.