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Governor’s Action
The State Fair is wrapping up this weekend following the democrat rally on Governor’s Day and the republican day get together. The Democrat National Convention is being held next week in Chicago. Politics both at the country as well as state of Illinois levels are heating up. There are less than 90 days to election day to November 5th and Illinois early voting begins September 26th.
This year’s elections likely will be some of the closest in recent memory. For example, Speaker Chris Welch is confidant that House Democrats can pick up as many as 5 seats increasing his super majority to 83 of 118 House seats. Meanwhile, House Republican Leader Tony McCombie sees the exact opposite and is predicting her caucus could flip as many as 5 seats their way.
The important thing is to get you and your employees registered to vote and cast your ballot for the candidates of your choice. For election registration and voting information go to the Illinois State Board of Elections website.
You can also get a sense of how your state legislators support the issues important to Illinois business interests by checking out the 2024 Illinois Chamber Legislative Ratings.
Governor’s Action on Key Employment Law Legislation
Employer First Amendment Limitations
PA 103-722/SB 3649 ENROLLED: EMPLOYER GAG ACT (SEN. ROBERT PETERS/REP.MARCUS EVANS)
Creates the Worker Freedom of Speech Act to prohibit an employer or the employer's agent, representative, or designee to discharge, discipline, or otherwise penalize, threaten to discharge, discipline, or otherwise penalize, or take any adverse employment action against an employee: (1) because the employee declines to attend or participate in an employer-sponsored meeting or declines to receive or listen to communications from the employer or the agent, representative, or designee of the employer if the meeting or communication is to communicate the opinion of the employer about religious or political matters; (2) as a means of inducing an employee to attend or participate in meetings or receive or listen to communications; or (3) because the employee, or a person acting on behalf of the employee, makes a good faith report, orally or in writing, of a violation or a suspected violation of the Act. Provides for a private right of action to enforce the provisions of the Act. Sets forth the duties and powers of the Department of Labor under the Act. Provides that, within 30 days after the effective date of the Act, an employer shall post and keep posted a notice of employee rights under the Act where employee notices are customarily placed. OPPOSED This unconstitutional measure overturns employer 1st Amendment rights and litigation is likely. Effective date January 1,2025.
Whistleblower Expansions
PA 103-879/HB 5561 ENROLLED: EXPANDS LIABILITY UNDER THE WHISTLEBLOWER ACT (REP. MARCUS EVANS/SEN.CRISTINA CASTRO)
Changes the definitions of "employer" and "employee". Defines "adverse employment action", "public body", "retaliatory action", and "supervisor". Provides that an employer may not take retaliatory action against an employee who discloses or threatens to disclose information about an activity, policy, or practice of the employer that the employee has a good faith belief that such activity, policy, or practice violates a State or federal law, rule, or regulation or poses a substantial and specific danger to public health or safety. Includes additional relief, damages, and penalties for violation of the Act. Allows the Attorney General to initiate or intervene in a civil action to obtain appropriate relief if the Attorney General has reasonable cause to believe that any person or entity is engaged in a practice prohibited by the Act. Provides that the changes made by the amendatory Act apply to claims arising or complaints filed on or after January 1, 2025. NEUTRAL, after many hours of negotiations with the Attorney General’s office, the Illinois Chamber reached an agreement on amendments that moved us to neutral. Effective January 1, 2025.
Non-compete/Non-solicit Agreements
PA 103-915/SB 2737 ENGROSSED: NON-COMPETE/NON-SOLICIT AGREEMENTS PROHIBITED FOR CERTAIN MENTAL HEALTH PROFESSIONALS (SEN. PAUL FARACI/REP GUERRERO-CUELLAR)
Amends the Illinois Freedom to Work Act. Provides any covenant not to compete or covenant not to solicit entered into after the effective date of the amendatory Act shall not be enforceable with respect to professionals licensed in this State who provide mental health services to veterans and first responders if the enforcement of the covenant not to compete or covenant not to solicit would result in an increase in cost or difficulty for any veteran or first responder seeking mental health services. Effective January 1, 2025. NEUTRAL with Illinois Chamber House amendment. Effective date January 1, 2025.
PA 103-921/SB 2770 ENROLLED: CONSTRUCTION NON-COMPETE/NON-SOLICIT AGREEMENTS PROHIBITIONS (SEN. MICHAEL HASTINGS/REP. MARCUS EVANS)
A covenant not to compete or a covenant not to solicit is void and illegal with respect to individuals employed in construction, regardless of whether an individual is covered by a collective bargaining agreement unless the construction employee primarily performs management, engineering or architectural, design, or sales functions for the employer or who are shareholders, partners, or owners in any capacity of the employer. NEUTRAL, the amendment applies to contractors whether unionized or not. Effective January 1, 2025.
Access to Pay Stubs
PA 103-953/SB 3208 ENROLLED: WAGE PAYMENT PAY STUBS (SEN. KARINA VILLA/REP. DAGMARA AVELAR)
Requires every employer, upon an employee's request which the employer may require be in writing on a form supplied by the employer, permit the employee to inspect his or her pay stubs. Amends the Illinois Wage Payment and Collection Act to require employers to keep records of names and addresses of all employees and of wages paid each payday, and furnish each employee with a pay stub for each pay period (rather than shall furnish each employee with an itemized statement of deductions made from the employee's wages for each pay period). Requires an employer to maintain a copy of an employee's pay stub for a period of not less than 3 years after the date of payment, whether the pay stub is provided electronically or in paper form, and the employer must furnish the pay stub to the employee or former employee upon the employee or former employee's request. An employer who furnishes electronic pay stubs in a manner that is restricted to the employer's current employees must, upon an employee's separation from employment, furnish the employee or former employee with a paper or emailed electronic record of all of the employee's or former employee's pay stubs for up to 3 years prior to the date of separation, in the method specified by the employee or former employee. An employer who fails to furnish an employee with a pay stub or commits any other violation of this Act, except for specified violations, shall be subject to a civil penalty of $500 per violation payable to the Department of Labor. Defines "pay stub". NEUTRAL The Illinois Chamber’s amendment that was adopted in the House requires an employer to furnish a copy of requested pay stubs to an employee or former employee within 21 calendar days of the request (rather than by the end of the next pay period of the request). A request made by an employee or former employee for a copy of a pay stub shall be made to a person responsible for maintaining the employer's payroll, including the employer's human resources department or payroll department, the employee's supervisor or department manager, or an individual designated in the employer's written policy. Effective January 1, 2025.
Personnel Record Review Act Changes
PA 103-727/HB3763 ENROLLED: EXPANDS PRESONNEL RECORD REVIEW ACT (REP. WILL GUZZARDI/SEN. RAM VILLIVALAM)
Amends the Personnel Record Review Act to provide that every employee has a legal right to inspect and copy personnel-related documents. Requires an employee to make a written request to the employer before having a legal right to inspect, copy, and receive copies of specified documents, including any employment-related contracts or agreements that the employer maintains are legally binding on the employee. Modifies how requests must be made and the requirements of written requests. The right of the employee or the employee's designated representative to inspect personnel records does not apply to an employer's trade secrets, client lists, sales projections, and financial data. Modifies provisions on how the Act is administered and enforced, including requirements for commencing an action in circuit court. Prohibits an employer from including the imputed costs of time spent duplicating the information, purchasing or renting a copying machine, purchasing or renting computer equipment, or purchasing, renting, or licensing software in a fee for providing a copy of the documents. An employee may bring an action in circuit court regardless of whether that employee has filed a complaint concerning the same violation with the Department of Labor. Authorizes an employee to file a complaint with the Department regardless of whether the employee pursued or is pursuing an action for the same violation in circuit court. Repeals provisions concerning personnel record inspections by representatives of the employee. NEUTRAL with Illinois Chamber amendments. Effective January 1, 2025.
Illinois E-Verify Limitations
PA 103-879/SB 508 Enrolled: E-VERIFY LIMITS UNDER RIGHT TO PRIVACY IN WORKPLACE ACT (REP. EVA DINA-DELGADO/SEN. JAVIER CERVANTES)
Amends the Right to Privacy Act prohibiting an employer from imposing work authorization verification or re-verification requirements greater than those required by federal law. If an employer is required to participate in the E-Verify program or a similar Electronic Employment Verification System and receives notification from the Social Security Administration of a discrepancy between an employee's name or social security number and the Social Security Administration's records, the employer must provide the employee with specified documents. Provides for additional rights and protections granted to an employee following the notification from the Social Security Administration of a discrepancy. Provides that an employer shall provide notice to current employees, by posting in the language the employer normally uses to communicate employment-related information to the employee, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by the inspecting entity within 72 hours after receiving notice of the inspection. Provides for additional notice requirements concerning obligations of the employer and the employee. Provides for violations and civil penalties. Defines terms. NEUTRAL, we were able to negotiate changes to allow easier compliance by employers. Effective January 1, 2025.
Day & Temporary Labor Act Changes
PA 103-722/SB 3650 ENROLLED: DAY & TEMPORARY LABOR AGENCIES (SEN. ROBERT PETERS/REP EDGAR GONZALEZ, JR.)
If an applicant seeks a work assignment as a day or temporary laborer with a day and temporary labor service agency, including in-person, online or through an app-based system, and is not placed with a third-party client or otherwise contracted to work for that day by the day and temporary labor service agency, the day and temporary labor service agency shall provide the applicant with a confirmation that the applicant sought work that satisfies specified criteria. Sets forth compensation requirements for day or temporary laborers based on directly hired comparative employees of a third party. Provides that it shall be the responsibility and duty of a day and temporary labor service agency to calculate and determine the hourly rate of pay and the benefits it shall offer to a day or temporary laborer, including any cash equivalents. Makes changes in provisions concerning the right to refuse assignments due to a labor dispute and the duties of third-party clients. NEUTRAL. While the legislation fails to address all employer concerns, enough changes have been made to move the Illinois Chamber neutral. Effective date August 9, 2024.
Workers’ Compensation Assessment Increases Now Effective
SB 1996/PA 103-590: Workers’ Compensation Assessment Increases (SEN. BILL CUNNINGHAM/REP. JAY HOFFMAN) Increases the surcharges for the IWCC Operations Fund and the Rate Adjustment Fund. The measure also increases penalties for employers who commit fraud under the Act. Effective June 5, 2024.
Assessment Changes:
Operations Fund: increases from 1.01% to 1.092% for insurance carriers effective July 1, 2024
Increases from 0.0075% to 0.0081% for self-insured employers effective July 1, 2024
Rate Adjustment Fund: increases from 1.25% to 1.375% beginning July 15, 2024
The changes to the assessments are estimated to generate an 8% increase in the Operations Fund revenues to over $31 million in FY 2025...an increase of over $2.6 million estimated FY 24. The Rate Adjustment Fund increase is a 10% increase generating $13.6 million for FY 2025...$1 million more than estimated for FY 24.
Authority to Transfer Self-Insurers Funds to Temporarily Support IWCC Operations:
Allows the Chairman, with the advice of the Self-Insurers Board, to transfer up to $2,000,000 in any fiscal year from the Self-Insurers Security Fund to the Illinois Workers' Compensation Commission Operations Fund to pay the operating costs of the Illinois Workers' Compensation Commission or the salaries and benefits of employees of the Illinois Workers' Compensation Commission. No later than October 31 of the fiscal year following any transfer from the Self-Insurers Security Fund to the Illinois Workers' Compensation Commission Operations Fund, the Chairman, with the advice of the Self-Insurers Board, shall direct the State Comptroller and the State Treasurer to transfer from the Illinois Workers' Compensation Commission Operations Fund to the Self-Insurers Security Fund an amount equivalent to the sum of all amounts transferred from the Self-Insurers Security Fund to the Illinois Workers' Compensation Commission Operations Fund in the prior fiscal year with interest at the rate earned by moneys on deposit in the Self-Insurers Security Fund.
Section 4 changes:
A Commission decision imposing penalties under Section 4 may be judicially reviewed only as described in Section 19(f). After expiration of the period for seeking judicial review, the Commission's final decision imposing penalties may be enforced in the same manner as a judgment entered by a court of competent jurisdiction. The Commission's final decision imposing penalties is a debt due and owing to the State and can be enforced to the same extent as a judgment entered by a circuit court. The Attorney General shall represent the Commission and the Department of Insurance in any action challenging the final decision in circuit court. If the court affirms the Commission's decision, the court shall enter judgment against the employer in the amount of the fines assessed by the Commission. The Attorney General shall make reasonable efforts to collect the amounts due under the Commission's decision.
The employer shall reimburse the Injured Workers' Benefit Fund for any amounts paid to an employee on account of the compensation awarded by the Commission. The Attorney General shall make reasonable efforts to obtain reimbursement for the Injured Workers' Benefit Fund.
Section 19 changes:
If the court affirms the Commission's decision imposing fines on the employer under subsection (d) of Section 4, the court shall enter judgment against the employer in the amount of the fines assessed by the Commission.
Section 25.5 changes:
Adds to the list of unlawful acts new subsection 8.5: Intentionally assist, abet, solicit, or conspire with any person, company, or other entity to violate subsection 4 which provides intentionally prepare or provide an invalid, false, or counterfeit certificate of insurance as proof of workers' compensation insurance.
Creates new sentences for violations of paragraphs (4) and (8.5):
A violation in which the value of the property obtained or attempted to be obtained is $10,000 or less, is a Class 3 felony and a civil penalty of up to $10,000 per violation, payable to the Injured Workers' Benefit Fund.
A violation in which the value of the property obtained or attempted to be obtained is more than $10,000, but not more than $100,000, is a Class 2 felony and a civil penalty of up to $10,000 per violation, payable to the Injured Workers' Benefit Fund.
A violation in which the value of the property obtained or attempted to be obtained is more than $100,000 is a Class 1 felony and a civil penalty of up to $10,000 per violation, payable to the Injured Workers' Benefit Fund.
A person convicted under this subsection shall be ordered to pay monetary restitution to the injured worker, insurance company, self-insured entity, or any other person for any financial loss sustained as a result of a violation of this Section. An order of restitution also includes expenses incurred and paid by the State of Illinois, an insurance company, a self-insured entity, an injured person, or any other person in connection with any medical evaluation or treatment services.
The value of the property obtained or attempted to be obtained shall be the amount of premiums saved by use of the invalid, false, or counterfeit certificate of insurance, the value of any payments under any contract obtained by reliance on the invalid, false, or counterfeit certificate of insurance, or both. Notwithstanding the foregoing, an injured worker, insurance company, self-insured entity, or any other person suffering financial loss sustained as a result of violation of this subsection may seek restitution, including court costs and attorney's fees in a civil action in a court of competent jurisdiction. This is a one-year agreement with the understanding that a much broader workers' compensation agreed bill process will take place in 2025. The Chamber’s Workers’ Compensation Committee will need to begin preparations for 2025 as I suspect the business community will be on defense and facing significant political pressure to increase benefits for injured workers and changes that will increase costs for Illinois employers. NEUTRAL-Effective June 5, 2024.
Human Rights/Employment Discrimination
PA 103-973/SB 3310 ENROLLED: EXTENDS HUMAN RIGHTS ACT STATUTE OF LIMITATIONS TO 2 YEARS (SEN. MIKE SIMMONS/REP. CURTIS TARVER, JR.)
Amends the Illinois Human Rights Act. Extends the date to file a charge from 300 calendar days to 2 years for an alleged violation under the Act except for the Real Estate Transactions Article. NUETRAL, the Senate sponsor agreed to the Illinois Chamber request to reduce to two years instead of 3 years. Effective January 1, 2025.
PA 103-797/HB 2161 ENROLLED: UNLAWFUL DISCRIMINATION-FAMILY RESPONSIBILITIES (REP. WILL GUZZARDI/ SEN TORO)
Amends the Illinois Human Rights Act. Provides that it is the public policy of the State to prevent discrimination based on family responsibilities in employment. Defines "family responsibilities" as an employee's actual or perceived provision of care to a family member, whether in the past, present, or future. Provides that it is a civil rights violation for: (1) any employer to refuse to hire, to segregate, to engage in harassment, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of family responsibilities; (2) any employment agency to fail or refuse to classify properly, accept applications and register for employment referral or apprenticeship referral, refer for employment, or refer for apprenticeship on the basis of family responsibilities; and (3) any labor organization to limit, segregate, or classify its membership, or to limit employment opportunities, selection and training for apprenticeship in any trade or craft, or otherwise to take or fail to take, any action which affects adversely any person's status as an employee or as an applicant for employment or as an apprentice, or as an applicant for apprenticeships, or wages, tenure, hours of employment, or apprenticeship conditions on the basis of family responsibilities. Provides that it is a civil rights violation for a person, or for 2 or more persons, to conspire to retaliate against a person because he or she has opposed that which he or she reasonably and in good faith believes to be discrimination based on family responsibilities.
The Senate added the Illinois Chamber amendment that provides nothing contained in the Act may be construed to obligate an employer, employment agency, or labor organization to make accommodations or modifications to reasonable workplace rules or policies for an employee based on family responsibilities, including accommodations or modifications related to leave, scheduling, productivity, attendance, absenteeism, timeliness, work performance, referrals from a labor union hiring hall, and benefits, as long as its rules or policies are applied in accordance with this Act. Nothing contained in the Act prevents an employer from taking adverse action or otherwise enforcing reasonable workplace rules or policies related to leave, scheduling, productivity, attendance, absenteeism, timeliness, work performance, referrals from a labor union hiring hall, and benefits against an employee with family responsibilities as long as its policies are applied in accordance with the Act...NEUTRAL. Effective January 1, 2025.
PA 103-785/HB4867 ENROLLED: ADDS REPRODUCTIVE HEALTH DECISIONS AS A PROTECTION UNDER HUMAN RIGHTS ACT (REP. ANNA MOELLER/SEN. LAURA FINE)
Amends the Illinois Human Rights Act declaring the public policy of this State that a person has freedom from unlawful discrimination in making reproductive health decisions and such discrimination is unlawful. Defines "reproductive health decisions" to mean a person's decisions regarding the person's use of contraception; fertility or sterilization care; assisted reproductive technologies; miscarriage management care; healthcare related to the continuation or termination of pregnancy; or prenatal, intranatal, or postnatal care. Effective January 1, 2025.
PA 103- 804/HB 3773 ENROLLED: LIMIT PREDICTIVE ANALYTICS USE (REP. JAIME ANDRADE, JR./SEN. JAVIER CERVANTES)
Amends the Illinois Human Rights Act prohibiting an employer that uses predictive data analytics in its employment decisions to consider the applicant's race or zip code when used as a proxy for race to reject an applicant in the context of recruiting, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges, or conditions of employment. Allows the use of predictive data analytics to support the inclusion of diverse candidates in making employment decisions. Makes a civil rights violation: (1) with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment, for an employer to use artificial intelligence that has the effect of subjecting employees to discrimination on the basis of protected classes identified under the Article or to use zip codes as a proxy for protected classes identified under the Article; and (2) for an employer to fail to provide notice to an employee that the employer is using artificial intelligence. Defines "artificial intelligence" and "generative artificial intelligence". NEUTRAL. Effective January 1, 2025.
Upcoming Chamber Events
The Illinois Chamber's Annual Meeting and Luncheon
September 19, 2024
10:30 am to 11:30 am
Council Networking Reception & Expo
11:30 am
Luncheon
Marriott Marquis
2121 S. Prairie Ave.
Chicago, IL
LEARN MORE AND REGISTER HERE
The Illinois Chamber's Workers' Compensation and Safety Conference
October 9, 2024
8:00 am to 4:00 pm
Doubletree Hilton
3003 Corporate West Drive
Lisle, IL
LEARN MORE AND REGISTER HERE
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