Lame Duck Session Wrap Up
January 13, 2021
Wild 5 ½ Days of Lame Duck Session Comes to an End
Today, the 101st General Assembly adjourned sine die and the 102nd General Assembly was sworn in. During the Lame Duck session, the focus was on the four pillars of reform proposed by the Illinois Legislative Black Caucus. Three of the four pillars will be on their way to the Governor:
Police and Criminal Reform: HB 3653
Economic Equity: Procurement/SB 1608; Farm Equity, Predatory Lending/SB 1792 &
The fourth pillar, healthcare, was held up due to disagreements regarding hospital closings and will be resurrected in the new General Assembly.
An effort by Governor Pritzker to decouple from federal loss carry forward tax provisions (SB 1199), failed as House members considered the perception by voters of a $1 billion tax increase on small business being approved at 3 am the final day of the Lame Duck Session.
Emanual "Chris" Welch Elected Speaker of the Illinois House
Rep. Chris Welch (D-Westchester) has become the first African American elected as Illinois House Speaker. His election quickly came together as the Democrat caucus rallied around him after former Speaker Michael J. Madigan suspended his run for reelection as Speaker. Madigan had been the longest serving House speaker not only in Illinois but the nation. He served as Speaker from 1983 to 2020, other than 2 years (1995-1996). Welch was first elected to the Illinois House in 2012.
Rep. Jim Durkin (R-Western Springs) was reelected as Republican Leader. He has served in that role since 2013. Durkin was first elected to the Illinois House in 1994 and has served a total of 11 terms.
Don Harmon Reelected as Senate President
Sen. Don Harmon (D-Oak Park) was reelected as Senate President after leading the Senate since January of 2020. He was first elected as Senate President after the resignation of John Cullerton. Harmon has served in the Senate since 2003.
Dan McConchie (R-Hawthorne Woods) has been elected as Senate Republican Leader. He was elected to the Senate in 2016.
Unworkable and Overly Burdensome Employment Discrimination Law Regulations
SB 1480 amends the Illinois Human Rights Act and the Equal Pay Act: These proposed changes will impact employer hiring practices and policies regarding the hiring of individuals with criminal backgrounds.
Problems with changes to the Human Rights Act
* Subsection A: The definition of "substantial relationship" is extremely restrictive, so restrictive that an employer has virtually no option but to hire under this type of test. The definition requires the employer to show that the criminal conduct WILL recur in the future...an impossible standard to meet for any employer.
* Subsection B: requires an employer to consider factors that may include several convictions; and then other factors that can disqualify an individual focus on just a conviction. It implies that an employer should find one conviction more compelling than the other(s) for purposes of disqualifying the applicant for a particular job, thus rendering consideration of a full slate of convictions meaningless, as the reason. This would then open the door to dispute the substance of the pre-notice process as far as "which one" conviction was it, in other words, that is the reason I was not selected. Also, is the employer required to consider the other factors against each conviction- age when committed, nature of each offense, etc.
* Subsection C: While we understand the rationale for pre-notice of an adverse decision and opportunity to dispute; Some concerns: for example: many employers use a third party to conduct the background check and they are required to provide this notice under the Federal Credit Reporting Act, but the employer makes the substantive decision. The challenge is limited to the accuracy of the information found. To whom and what is the individual challenging- the accuracy of the third party's search; or, the employer's decision? For larger employers that hire in the 100s at a time, the proposal has too many "pending" review and awaiting processes. It is unworkable where an employer has many applicants for a limited number of openings. For example, just moving on to timely fill those openings create the argument that this is a pretext to unlawfully discriminate on account of conviction.
* Under the Illinois Human Rights Act, employers are allowed take action on facts that it knows of surrounding an arrest but not the arrest itself. The language fails to allow employers to consider any fact that it can independently verify that surrounds a conviction and take adverse action based on those facts.
Concerns about changes to the Equal Pay Act:
Any business of 100 or more full-time employees must obtain an "equal pay certificate". Prohibits the State of Illinois from contracting with any business of 40 or more full-time employees unless such business has an "equal pay certificate" issued by the Illinois Department of Labor. Exempts certain contractors.
* Creates unnecessary duplication, and regulatory overkill: All Illinois employers already must comply with the Illinois Human Rights Act and the Illinois Equal Pay Act. Illinois employers with 15 or more employees must already comply with Title VII of the Civil Rights Act. Private employers of 100 or more employees and federal contractors with 50 or more employees must already file with the federal EEOC Standard Form 100 (EEO-1). All Illinois employers must also already comply with the federal Equal Pay Act. Each of these Acts has their own enforcement mechanisms, remedies and penalties.
* What will be the basis for an employer to be able to certify its average compensation for its female and minority employees is "not consistently below" the average compensation for its male and non-minority employees? This standard is undefined and open to wide interpretation which will lead to significant litigation.
* Subsection (j) is awkwardly worded and may not provide adequate protection for specific employer data from being publicly accessed.
* Subsection (k) requires assessment of a 1% of gross profits for any violation of the new section. This penalty assumes a business operates with a "gross profit". In the case of a blatant disregard of the law but the business has zero gross profit, that business pays a zero in penalties. Whereas a business that has a minor violation and $100 million in gross profit, the absolute requirement of subsection (k) requires a penalty of $1 million. Where is the equity in this?
Prejudgment Interest Approved by General Assembly
During the waning days of the lame duck session, the Illinois Trial Lawyers Association successfully jammed through the legislature HB 3360. It provides that in all actions brought to recover damages for personal injuries or wrongful death resulting from or occasioned by the wrongful conduct of any other person or entity, the plaintiff shall recover prejudgment interest at 9% per annum on all damages set forth in the judgment. It applies to any personal injury or wrongful death occurring before the effective date of the amendatory Act, the prejudgment interest shall begin to accrue on the later of the effective date of the amendatory Act or the date the alleged tortfeasor has notice of the injury. Provides that the trial court may apportion any amount of prejudgment interest between the plaintiff and any agency or department of the State. Public units of local government are exempt.
Workers' Compensation COVID Rebuttable Presumption: Also, early this morning the General Assembly approved HB 4276 the extension of the COVID rebuttable presumption provision under the Workers' Occupational Diseases Act has been extended to June 30, 2021. The measure also amends the Public Employee Disability Act providing that upon the occurrence of circumstances, directly or indirectly attributable to COVID-19, occurring on or after March 9, 2020 and on or before June 30, 2021 which would hinder the physical recovery from an injury of an eligible employee within a one-year period, the eligible employee shall be entitled to an extension of no longer than 60 days by which he or she shall continue to be paid by the employing public entity on the same basis as he or she was paid before the injury. Also amended is the Chicago Police and Chicago Firefighter Articles of the Illinois Pension Code. In provisions concerning line-of-duty death benefits and other death benefits, provides a rebuttable presumption that the death of a policeman or fireman from COVID-19 was a fatal injury while in active service if the policeman or fireman was exposed to and contracted COVID-19 on or after March 9, 2020 and on or before June 30, 2021.
