Jay Shattuck | Executive Director, Employment Law Council | 217-544-6590
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The mission of the Employment Law Council is to effectively represent Illinois employers on employment law issues such as workers compensation, unemployment insurance, employment discrimination, workplace mandates and other management/employee issues. We advocate public policy actions that advance the interests and viewpoints of employers, and to assist in creating a political climate conducive to improving Illinois' ability to create and retain jobs.
The Council accomplishes its mission with the involvement of hundreds of employers who participate in our three committees: Workers' Compensation; Employment Law & Litigation; and Unemployment Insurance. Through the efforts of these committees we develop policies and strategies that are implemented by the Council and Illinois Chamber staff.
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Medical Fee Advisory Board to Consider 30% Increase in E & M Codes
On Monday, September 13, the Illinois Workers’ Compensation Commission’s Medical Fee Advisory Board (MFAB) met. The primary piece of business was a revisiting of the motion from 2020 by MFAB Board member Dr. David Fletcher to increase the medical fee schedule evaluation and management codes by 30%.
Dr. Fletcher provided a brief presentation to the MFAB members to resume the process to consider his motion from 2020. Consideration of the fee increase was suspended when the Illinois Chamber and other business groups agreed to extend the rebuttable presumption until June 30, 2021.
Following questions from MFAB members, IWCC Chairman Brennan indicated that the Commission would provide 60 days from for interested parties to submit written comments to the Commission. There also will be an opportunity after the 60 days for interested parties to provide oral presentations to the MFAB.
The Employment Law Council is seeking data, comments, etc. to assist the Chamber’s comment submission. Contact Jay Shattuck.
Council Provides Input to IDOL on Implementation of New Equal Pay Law
The Employment Law Council volunteers from Baker McKenzie, Jackson Lewis, Seyfarth Shaw and SmithAmundsen developed issues, questions and suggestions to share with the Illinois Department of Labor staff regarding implementation of the new law that requires employers of 100 or more Illinois employees to provide an Equal Pay Registration Certificate. (See PA 102-36 effective January 1, 2022).
To assist the Department, we participated in a virtual meeting reviewing our document. The IDOL will be submitting rules to implement the new law for public input in the near future. For a copy of the Council’s document, contact Jay Shattuck.
New Marijuana Testing Protections Legislation Introduced
Rep. Bob Morgan (D-Highwood) has introduced a different approach to create protections for workers who test positive for marijuana. HB 4116 amends the Right to Privacy in the Workplace Act to prohibit an employer from refusing to hire an individual or discipline an employee because results of an individual's drug test indicate the presence of THC on the part of that individual. It allows an employer to enforce a pre-employment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug-free workplace policy or disciplining an employee for violating such policy, but provides than an employer may not take adverse action against an employee solely because of a positive drug test for cannabis unless the test result exceeds limits set forth in certain DUI provisions of the Illinois Vehicle Code. Sets forth conditions under which an employer may discipline an employee for impairment. Provides that there is not a cause of action for any person against an employer for disciplining or terminating the employment of an individual when enforcing a compliant policy. For a copy of the bill: 10200HB4116 (ilga.gov)
New Employment Laws
VIDEO INTERVIEWS: HB 53, sponsored by Rep. Jaime Andrade (D-Chicago) and Sen. John Connor (D-Joliet), amends the Artificial Intelligence Video Interview Act to require employers that rely solely upon artificial intelligence to determine whether an applicant will qualify for an in-person interview to gather and report certain demographic information to the Department of Commerce and Economic Opportunity. DCEO must analyze the data and report to the Governor and General Assembly whether the data discloses a racial bias in the use of artificial intelligence. Signed into law as PA 102-47 with an effective date of January 1, 2022.
SECURE CHOICE SAVINGS PROGRAM: HB 117/PA 102-179 effective January 1, 2022-sponsored by Rep. Will Guzzardi (D-Chicago)/Sen. Robert Martwick (D-Chicago) The new law now will apply to employers that do not offer a retirement plan with at least 5 employees. Current law applies to employers with more than 25 employees. Newly covered employers will be done in two waves – employers with 16 to 24 employees will have a deadline to comply of no sooner than September 1, 2022 and employers with 5-15 employees will have a deadline to comply of no sooner than September 1, 2023. Small employers may, but are not required to, establish payroll deduction arrangements for retirement savings arrangements. Modifies the enforcement process so that employers have an additional chance to come into compliance after receiving the notice of proposed assessment from the Department of Revenue – they will be given 120 days to come into compliance and if they do, any penalty fees assessed will be waived. Michael W. Frerichs - Illinois State Treasurer: Secure Choice (illinoistreasurer.gov)
PENALTY INCREASES FOR UNPAID WAGES: HB 118/ PA 102-50 effective July 9, 2021-sponsored by Rep. Will Guzzardi (D-Chicago)/Sen. Karina Villa (D-W. Chicago) The Wage Payment & Collection Act is amended to provide that an employee is entitled to recover damages of 5% per month (rather than 2%) of the amount of any underpayments in wages for each month following the date of payment during which such underpayments remain unpaid.
EXPANSION OF VESSA: HB 3582/PA 102-487 effective January 1, 2022-sponsored by Rep. Robyn Gabel (D-Evanston)/Sen. Robert Peters (D-Chicago) Expands the Victims' Economic Security and Safety Act (VESSA) covering: 1) victims and family members of victims of crimes of violence (in addition to victims of domestic violence, sexual violence, and gender violence) and 2) any individual whose close association with the employee is the equivalent of a family relationship.
WAGE WITHHOLDING FOR HEALTH INSURANCE: SB 258, sponsored by Sen. Mike Hastings (D-Mokena) and Rep. Kelly Burke (D-Chicago), amends a Section of the Illinois Marriage and Dissolution of Marriage Act regarding health insurance coverage for children. Defines "insurance obligee" as an individual to whom a health insurance obligation is owed on behalf of a child and "insurance obligor" as an individual who has an obligation to provide health insurance for a child. Deletes language providing that the court shall enter an order for health insurance coverage of the child upon the request of the obligee or the public office in charge of child support enforcement. Deletes certain requirements concerning the procedures and notice obligations governing an application for insurability following the entry of an order. Deletes language providing that the court shall order the obligor to reimburse the obligee for 50% of the premium for placing the child on his or her health insurance policy under certain circumstances. Deletes language providing that the court may order the obligor to reimburse the obligee for 100% of the premium for placing the child on his or her health insurance policy. Deletes language providing that the obligor shall be liable to the obligee for the dollar amount of the premiums that were not paid. Provides that an employer may eliminate a child from the insurance obligor's health insurance coverage if the employer no longer provides a group health insurance plan to any employees or the child is no longer eligible for coverage due to federal or State restrictions. Makes other changes. Now PA 102-87 effective January 1, 2022.
LIMITS ON NON-COMPETES & NON-SOLICITS: SB 672/PA 102-358 effective January 1, 2022-sponsored by Sen. Mattie Hunter (D-Chicago) and Rep. Kelly Burke (D-Evergreen Park) The proposal generally makes reasonable limitations on covenants not to compete and covenants not to solicit and provides employers greater clarity and certainty as to whether their covenant not to compete or covenant not to solicit will meet judicial scrutiny. Applies to agreements entered into after the effective date.
In brief the new law does the following:
- Amends the Illinois Freedom to Work Act removing the definition for the term "low-wage employee" and defines "adequate consideration"; "covenant not to compete"; "covenant not to solicit"; "earnings"; and "employee".
- Provides that a covenant not to compete shall not be valid or enforceable unless the employee's actual or expected annualized rate of earnings exceeds $75,000 per year on the effective date of the amendatory Act, $80,000 per year beginning on January 1, 2027, $85,000 per year beginning on January 1, 2032, or $90,000 per year beginning on January 1, 2037;
- Provides that a covenant not to solicit shall not be valid or enforceable unless the employee's actual or expected annualized rate of earnings exceeds $45,000 per year and increasing in steps to $52,500 per year in 2037;
- Provides that a covenant not to compete is void and illegal for any employee who an employer terminates or furloughs or lays off as the result of business circumstances or governmental orders related to the COVID-19 pandemic, or under circumstances that are similar to the COVID-19 pandemic, unless enforcement of the covenant not to compete includes compensation equivalent to the employee's base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement;
- Provides that a covenant not to compete is void and illegal for individuals covered by a collective bargaining agreement under the Illinois Public Labor Relations Act or the Illinois Educational Labor Relations Act;
- Establishes exclusions for management professional personnel engaged in the construction industry;
- Provides a procedure for enforcement by the Attorney General;
- Contains provisions concerning the enforceability of a covenant not to compete or a covenant not to solicit; notice requirements for employers under a covenant not to compete or a covenant not to solicit; remedies for employees who prevail against an employer's civil action to enforce a covenant not to compete or a covenant not to solicit; and certain factors a court may consider when determining whether to reform a covenant not to compete or a covenant not to solicit.
HEALTH INSURANCE BENEFIT DISCLOSURE REQUIREMENTS: SB 1905/PA 102-630 effective August 27, 2021- sponsored by Sen. Julie Morrison (D-Highwood)/ Rep. Margaret Croke (D-Chicago) creates the Consumer Coverage Disclosure Act to require employers to disclose to employees the differences under the employees' health coverage and health coverage providing essential benefits under health plans regulated by the State of Illinois. Directs the Department of Insurance to provide information outlining the essential benefits and other benefits under coverage regulated under State law. Provides for enforcement by the Department of Labor. Authorize the imposition of civil penalties, if after notice of noncompliance, an employer does not come into compliance within 30 days.
EQUAL PAY CERTIFICATE REGISTRATION CLEANUP: SB 1847, sponsored by Sen. Mattie Hunter (D-Chicago) and Rep. Sonya Harper (D-Chicago) was signed into law and was effective June 25th as PA 102-36. The new law applies to employers of 100 or more Illinois employees and requires certain wage and benefit data similar to what is required to be filed with the EEOC to be filed with the Illinois Department of Labor. Several key features in the trailer bill include replacing the 1% gross profit penalty, delaying implementation until January 1, 2022, allowing employers in certain cases to cure an otherwise violation and privacy protection for individual and business data filed with the Department. We are working with IDOL in their implementing the new provisions. For a summary of PA 102-36 contact Jay Shattuck.
PERSONNEL RECORDS STATUTE OF LIMITATIONS: SB 2486: (Sen. Villivalam D-Chicago/Rep. Evans D-Chicago) Amends the Personnel Record Review Act allowing an individual to file a complaint with the Director of Labor or commence an action alleging a violation within 3 years after the date of the disclosure of a disciplinary action. Now PA 102-562, effective January 1, 2022.
Employment Discrimination
HUMAN RIGHTS-WORK AUTHORIZATION HB 121: (Rep. Guzzardi/Sen. Ram Villivalam D-Chicago) HB 121 provides that it is the public policy of the State to prevent discrimination based on the specific status or term of status that accompanies a legal work authorization. It defines "work authorization status" as the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States. A Council requested amendment that was added to clarify that an employer is not required to sponsor, either monetarily or otherwise, any applicant or employee to obtain or modify work authorization status, unless otherwise required by federal law. PA 102-233, effective August 2, 2021
EQUAL PAY/DEFERRED COMPENSATION HB 1207: (Rep. Moeller D-Elgin/Sen. Castro D-Elgin) Affirmatively provides that an employer may request an applicant to verify the aggregate amount of unvested equity or deferred compensation the applicant would forgo by resigning the applicant's current position. PA 102-277, effective January 1, 2022
DEFINITION OF DISABILITY: HB 1838 (Rep. Mah D-Chicago/Sen. Villivalam) Adds to the Illinois Human Rights Act that discrimination based on disability includes unlawful discrimination against an individual because of the individual's association with a person with a disability. PA 102-419, effective January 1, 2022
Workers’ Compensation
GROUP WORKERS’ COMPENSATION POOLS: HB 1957 (Rep. Thad Jones D-Calumet City/Sen. Napoleon Harris D-Dolton) The legislation makes changes to the filing due date applicable to actuarial opinions as to the sufficiency of the loss and loss adjustment expense reserves for group workers' compensation pools from June 1 to March 1 of each year. PA 102-135, effective January 1, 2022
MRSA PRESUMPTION: HB 3662: (Rep. Marcus Evans D-Chicago/Sen. Linda Holmes D-Aurora) Amends the Workers' Compensation Act. Provides that, with respect to firefighters and emergency medical technicians, a contagious staph infection, including Methicillin-resistant Staphylococcus aureus (MRSA), is rebuttably presumed to arise out of and in the course of employment. PA 102-493, effective August 20, 2021
TRANSFER of IWCC INSURANCE COMPLIANCE DIVISION to DOI: SB 1993, sponsored by Sen. Tony Munoz (D-Chicago) and Rep. Bob Morgan (D-Highland), transfers the Insurance Compliance Division of the Illinois Workers’ Compensation Commission to the Illinois Department of Insurance. Now PA 102-37 effective July 1, 2021.
BIMP/IWCC SALARIES: SB 2017 (Sen. Harmon D-Oak Park/Rep. Harris D-Chicago) As part of the 839-page budget implementation act…IWCC Commissioner annual salary to become 70% of a Circuit Court Judge in the Judicial Court constituted by the First Judicial District under the Salaries Act. The Chairman to receive an annual salary of 5% more than the other Commissioners. The Secretary and each arbitrator to receive a salary of 5% less than the per annum salary of Commissioners. (See pages 570-584) PA 102-16, effective June 17, 2021.
Unemployment Insurance
HB 2643, sponsored by Rep. Jay Hoffman (D-Belleville) and Sen. Linda Holmes (D-Aurora), amends the Identity Protection Act to allow social security numbers to be included in applications and forms sent by mail, including, but not limited to, any material mailed in connection with the administration of the Unemployment Insurance Act pursuant to the limitations and requirements of that Act. Amends the Department of Employment Security Law preventing the Department of Employment Security from disclosing an individual's entire social security number in any correspondence physically mailed to an individual or entity. Requires the Department to develop a system of identifying information to be used instead of social security numbers. Amends the Unemployment Insurance Act authorizing benefits for certain academic personnel. Requires notice of his or her appeal rights when an individual has received benefits and been found to be ineligible for those benefits. Limits recovery of benefits from persons who are ineligible if the receipt of benefits was without fault of the individual. Provides that, with the written consent of a claimant or employing unit and an agreement not to publicly disclose, the Director shall provide requested information related to a claim to a public officer or his or her agent. These changes are effective
As part of the budget bill, $100 million of American Rescue Plan Act allocation to Illinois is being used to pay for the benefit expansions of PA 102-26. However, clarification language to hold employers harmless for the benefit expansions will be needed approved during the October Veto session.
UI CLEANUP: During the August 31st Special Session of the General Assembly, SB 2065 was approved and has been sent to Gov. Pritzker for his signature. SB 2065 is a technical cleanup of PA 102-26. SB 2065 amends the Unemployment Insurance Act. With respect to benefits paid to certain academic personnel beginning on or after January 3, 2021 and before September 4, 2021, provides that: (i) an employer that is subject to the payment of contributions shall not be chargeable for any benefit charges; (ii) a nonprofit organization that is subject to making payments in lieu of contributions shall be chargeable for 50% of the benefits paid if the week begins before April 4, 2021, and 75% if the week begins on or after April 4, 2021; and (iii) the State and any local government that is subject to making payments in lieu of contributions shall be chargeable for 50% of the benefits paid if the week begins before April 4, 2021, and 75% if the week begins on or after April 4, 2021.
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14th Annual Workers’ Compensation Conference: Mark October 19th down for attending our annual Conference. The one-day conference is being held at the DoubleTree Hilton in Lisle, IL. We are finalizing our agenda. Registration Details
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Not a member and want to learn more about the Illinois Chamber click here to contact Lanae Clarke
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