November 29, 2022

Volume XII, Number 333

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November 29, 2022

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November 28, 2022

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The Time Is Now for Employers in Illinois to Abide by New Laws

The New Year brings new laws for Illinois employers. Some laws go into effect this summer, while others are effective as of this month. For employers who have not yet revised handbooks, policies, and agreements, the time is now. Below is a brief summary of the new laws.

New Laws Now In Effect:

Amendments to the Illinois Human Rights Act

Beginning January 1, 2020, several amendments to the Illinois Human Rights Act took effect. First, the Illinois Human Rights Act previously applied to employers with 15 or more employees. Now the law applies to any employer employing one or more persons. Second, the definition of “unlawful discrimination” is expanded to include discrimination against a person because of his or her “actual or perceived” protected class characteristic. Similarly, the definition of “harassment” is expanded to include unwelcome conduct on the basis of a person’s “actual or perceived” protected class characteristic that “has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” Third, the prohibition on harassment is now expanded to include persons other than employees. The law now prohibits harassment against independent contractors, consultants, and anyone else performing services for the employer pursuant to a contract. Fourth, every employer with employees in Illinois is required to provide sexual harassment prevention training on an annual basis to all employees.

Additionally, beginning July 1, 2020, employers will be required to disclose annually (by July 1 of each year) any adverse judgment or administrative ruling relating to unlawful harassment or discrimination against the employer in the preceding year, and an employer may be required to disclose information on settlements of any sexual harassment or unlawful discrimination claims if required to do so by the Department of Human Rights.

Employers should update their employee handbooks and policies to comply with the amendments, prepare to provide sexual harassment training on an annual basis, and discuss these legal changes with human resources personnel, supervisors and managers.

Cannabis Regulation and Tax Act

Effective January 1, 2020, recreational use of marijuana became legal in Illinois. Employers may maintain zero-tolerance drug-free workplace policies that prohibit the use or possession of marijuana at the workplace. Workplace drug policies and testing procedures must be “reasonable” and “non-discriminatory,” both in form and in practice. The law also provides that an employer may subject employees to drug testing based on reasonable suspicion if the employer possesses a “good faith belief” that an employee manifests specific, articulable symptoms while working, that decrease or lessen the employee’s job performance on customary duties. Such symptoms include the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others. Random testing is also permitted under the law, as long as it is conducted in a reasonable and non-discriminatory manner.

Importantly, if an employer elects to discipline any employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a “reasonable opportunity” to contest the basis of the determination.

Employers should review their policies and testing procedures to ensure testing criteria is applied consistently and in a non-discriminatory manner, and that all testing is well-documented throughout the process. It is also important to remember the law does not change or impact the Illinois Compassionate Use of Medical Cannabis Pilot Program Act (the “Compassionate Use Act”), which permits and regulates the use of medical marijuana. While the Compassionate Use Act does not require employers to accommodate on-the-job use of medical marijuana, it does prohibit employers from “penaliz[ing] a person solely for his or her status as a registered qualifying patient” for medical marijuana in Illinois. Employers should carefully navigate circumstances where an employee or applicant tests positive for marijuana and produces proper medical marijuana documentation, and circumstances when conducting pre-employment testing. And, pursuant to the Americans with Disabilities Act (“ADA”), employers must be mindful about engaging in the interactive process in these instances.

Artificial Intelligence Video Interview Act

Effective January 1, 2020, employers must obtain consent from applicants before using artificial intelligence to evaluate an applicant’s video interview and qualifications for the position. The consent must (i) notify each applicant before the interview that artificial intelligence may be used to analyze the applicant’s video interview and fitness for the position and (ii) explain how the artificial intelligence works and the general types of characteristics it uses to evaluate applicants. Employers are prohibited from sharing video interviews, except with persons necessary to evaluate an applicant’s qualifications for the positions, and employers must delete the videos within 30 days of their receipt of an employee’s request.

For employers that use video interviews, ensure compliance with this new law and provide the mandated notifications and explanations.

Amendments to the Victims’ Economic Security and Safety Act (“VESSA”)

Effective January 1, 2020, VESSA’s unpaid leave protections expanded to include victims of gender violence. It is important for employers to update their employee handbooks and policies accordingly, and to ensure appropriate personnel are informed about the new law.

Workplace Transparency Act

Effective January 1, 2020, this law prohibits certain provisions in employment agreements and separation agreements. With respect to settlement or termination agreements, the agreement’s confidentiality provisions are valid and enforceable so long as (i) confidentiality is the documented preference of the employee, prospective employee, or former employee and is mutually beneficial to both parties; (ii) the employer notifies the employee, prospective employee, or former employee, in writing, of his or her right to have an attorney or representative of his or her choice review the settlement or termination agreement before it is executed; (iii) there is valid, bargained for consideration in exchange for the confidentiality; (iv) the settlement or termination agreement does not waive any claims of unlawful employment practices that accrue after the date of execution of the agreement; (v) the employee is given a period of 21 calendar days to consider the agreement; and (vi) the employee is given 7 calendar days following execution to revoke the agreement.

Employers should examine their agreements to ensure compliance or risk the confidentiality provisions being deemed invalid and unenforceable.

The law also prohibits unilateral mandatory arbitration agreements that require employees to arbitrate claims of “unlawful employment practices.” “Unlawful employment practice” means any form of unlawful discrimination, harassment, or retaliation that is actionable under Title VII, the Illinois Human Rights Act, or otherwise. “Unilateral,” for purposes of the law, means any contract, agreement, clause, covenant, or waiver an employer requires an employee or prospective employee to accept as a non-negotiable material term in order to obtain or retain employment. A “mutual” arbitration agreement does not in and of itself save an agreement without the inclusion of other provisions as set forth in the law.

It is possible this provision of the law will be challenged in court as preempted by the Federal Arbitration Act (“FAA”). At this point, it is important employers ensure existing arbitration agreements contain FAA language, and consider the potential consequences of failing to provide for necessary carve-outs or other requisite language as contemplated by the new law.

New Laws Effective This Summer:

Lodging Services Human Trafficking Recognition Training Act

Beginning June 1, 2020, a lodging establishment must provide its employees with training in the recognition of human trafficking and protocols for reporting observed human trafficking to the appropriate authority. Employees must complete the training within six months after beginning employment and every two years thereafter. The human trafficking training program must: (i) define human trafficking and commercial exploitation of children; (ii) provide guidance on how to identify individuals who are most at risk for human trafficking; (iii) discuss the difference between human trafficking for purposes of labor and for purposes of sex as the trafficking relates to lodging establishments; and (iv) provide guidance on the role of lodging establishment employees in reporting and responding to instances of human trafficking.

Now is the time for lodging establishments to begin preparing for this training requirement in the event they do not have a similar program already in place.

Hotel and Casino Employee Safety Act

Beginning July 1, 2020, each hotel shall equip an employee who is assigned to work in a guest room or restroom, under circumstances where no other employee is present in the room or area, with a safety device or notification device. The employee may use the safety device or notification device to summon help if the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault, or other emergency is occurring in the employee’s presence. The device must be provided at no cost to the employee.

Additionally, each hotel must develop, maintain and comply with a written anti-sexual harassment policy to protect employees against sexual assault and sexual harassment by guests. The policy must: (i) encourage an employee to immediately report to the hotel employer any instance of alleged sexual assault or sexual harassment by a guest; (ii) describe the procedures that the complaining employee and employer shall follow in those cases; (iii) instruct the complaining employee to cease work and leave the immediate area where danger is perceived until hotel security personnel or police arrive to provide assistance; (iv) offer temporary work assignments to the complaining employee during the duration of the offending guest’s stay at the hotel, which may include assigning the complaining employee to work on a different floor or at a different station or work area away from the offending guest; (v) provide the complaining employee with necessary paid time off to file a police report or criminal complaint with the appropriate local authorities against the offending guest and, if so required, testify as a witness at any legal proceeding that may ensue as a result of the criminal complaint filed against the offending guest; (vi) inform the complaining employee of the Illinois Human Rights Act’s and Title VII’s additional protections against sexual harassment in the workplace, and (vii) inform the complaining employee it is illegal for an employer to retaliate against any employee who reasonably uses a safety device or notification device.

The policy must be in English and Spanish (and another language if spoken by a predominant portion of the workforce) and must be posted in a conspicuous place in areas of the hotel, such as supply rooms or break rooms.

Hospitality industry employers should update their employee handbooks and sexual harassment policies accordingly to ensure compliance, and ensure human resources personnel, supervisors and managers, and staff are aware of the new law.

Chicago Fair Workweek Ordinance

Effective July 1, 2020, the law requires certain Chicago employers to provide predictive scheduling to certain employees and limits the ability to make schedule changes. Employers must provide covered employees (those earning $50,000 or less per year as a salary or $26.00 or less per hour), with at least 10 days’ advance notice of their work schedule (including shifts and on-call status), and the schedule must be posted and transmitted electronically to employees upon request. Once the deadline for posting has passed, the employer may not change the schedule absent compliance with additional notice and compensation requirements.

Chicago employers unfamiliar with the Fair Workweek Ordinance are advised to examine it closely and begin logistical preparations to ensure compliance if they operate in an applicable industry.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 9
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About this Author

Kevin M. Cloutier, Labor and Employment Attorney, Sheppard Mullin Law Firm
Partner

Kevin Cloutier is a partner in the Labor and Employment Practice Group and co-chair of the firm's Non-Compete and Trade Secrets Team in the firm's Chicago office. He is also a member of the Firm's Diversity and Inclusion Committee.

Areas of Practice

Mr. Cloutier’s practice focuses on all areas of labor and employment law, with an emphasis on employment-related litigation and proactive counseling of management-side clients. He is an experienced trial lawyer with first-chair trial experience before state and federal trial...

312-499-6304
Shawn D. Fabian Labor and Employment Attorney Sheppard Mullin Chicago, IL
Partner

Shawn Fabian is a partner in the Labor and Employment Practice Group in the firm's Chicago and New York offices.

Areas of Practice

Litigation

Shawn represents management-side clients before federal and state courts across the country and before administrative agencies, including the DOL, EEOC, NLRB and various state and municipal human rights commissions and labor agencies. He also regularly represents clients in arbitrations and other avenues of alternative dispute resolution.

Shawn analyzes the enforceability of restrictive...

312-499-6308
Mikela T. Sutrina, Labor and Employment Attorney, Sheppard Mullin Law Firm
Associate

Mikela Sutrina is an associate in the Labor and Employment Practice Group in the firm's Chicago office.

Areas of Practice

Ms. Sutrina focuses her practice on labor and employment matters. She has defended employers in numerous cases in state and federal court, as well as before federal, state, and local administrative agencies in matters of discrimination, retaliation, wrongful termination, whistle-blower actions, and harassment. Ms. Sutrina has represented employers in both single and multi-plaintiff matters, as well...

312-499-6348
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