General Assembly Returns After Two Week Break
Both the Illinois House and Senate returned to Springfield this week. The House focus for the remainder of the month now moves to floor action and consideration of legislation that advanced out of Committee. The Senate committee deadline was extended to April 16th. The Senate committees advanced a number of bills to the floor and floor action included advancing agreed to measures to an “agreed bill” list.
Attack on Employment at Will
One of the more devastating proposals for employers this session is SB 2332, sponsored by Sen. Celina Villanueva (D-Chicago) and HB 3530, sponsored by Rep. Carol Ammons (D-Urbana). Both bills would flip our employment at will standard to a just cause standard. The Illinois Chamber has organized nearly 30 business groups in opposition to both measures. Illinois’ current employment at will standard is in line with 48 other states. Only Montana does not have an employment at will standard.
Why we are opposed:
- By limiting an employer’s ability to discharge an employee for only “just cause”, employers will face new, extensive legal actions to define the body of law established by this legislation.
- Prohibiting elimination of staff redundancy created by a merger or acquisition is not a bona fide economic reason for discharge of employees.
- By prohibiting “electronic monitoring” of employees as defined by the legislation will severely restrict the employer’s ability to provide security and safety for its, workers, customers, and the public.
- Prohibits an employer from discharging an employee for off-duty conduct unless there is a demonstrable and material nexus between the conduct and the employee's job performance or the employer's legitimate business interests.
- Requires an employer, under its progressive discipline process to provide at least 15 days between a warning or discipline and termination. Also disallows any warning or discipline that occurred more than one year in the past to be used in a termination. Failure to provide notice within 3 days of discharge is deemed an “unjust” discharge.
- An ‘unjust” discharge includes an employee’s communications about workplace practices & policies and an employee’s refusal to work under conditions the employee believes exposes him or her, other employees or the public to an unreasonable health or safety risk, including but not limited to risk of illness or exposure to COVID-19.
- Allows an employer to electronically monitor an employee for non-employment- related purposes.
- Mandates an employer accrue one hour of severance pay for every 12.5 hours worked during an employee’s first year of employment, and for every 50 hours worked thereafter. Upon discharge, the employer must pay the employee their accrued severance pay, calculated based on the number of hours accrued multiplied by the employee's rate of pay upon discharge. For purposes of determining an employee's years of employment tenure or seniority, multiple periods worked for the employer and any time worked for a predecessor employer shall be aggregated.
- Both a day and temporary labor services agency and their third-party client are deemed to be the employer of the employee and are jointly and severally responsible for compliance with this Act's requirements.
- Provides for extensive administrative and civil monetary remedies.
HB 3530 had a subject matter hearing in the House Labor Committee. The Senate Executive Committee scheduled a subject matter hearing but due to lack of time the measure was not called. While we do not believe this legislation is moving this session, we are educating lawmakers of the serious consequences such a law would have.
Bills Advancing in Springfield
Wage Issues & Workplace Mandates
HB 53: VIDEO INTERVIEW DEMOGRAPHIC (Rep. Jaime M. Andrade, Jr., D-Chicago)
Amends the Artificial Intelligence Video Interview Act. Provides that employers that rely solely upon artificial intelligence to determine whether an applicant will qualify for an in-person interview must gather and report certain demographic information to the Department of Commerce and Economic Opportunity. Requires the Department to analyze the data and report to the Governor and General Assembly whether the data discloses a racial bias in the use of artificial intelligence. 3rd Reading Consent Calendar
HB 75: School Code Paid Sick Leave (Rep. Mary Flowers D-Chicago)
Amends the School Code requiring the calculating of paid sick leave for the birth of a child or the adoption or placement for adoption of a child, the days do not have to be taken immediately after the birth of the child or the adoption or placement of the child, the days do not have to be taken consecutively, and the school board may not count any day in which school is not in session, including an extended break. House 2nd Reading-short debate
HB 117: SECURE CHOICE SAVINGS PROGRAM (Rep. Will Guzzardi D-Chicago/Sen. Robert Martwick D-Chicago)
SB 208: SECURE CHOICE SAVINGS PROGRAM (Sen. Robert Martwick D-Chicago)
As introduced, the bills amend the Illinois Secure Choice Savings Program Act requiring employers with at least one employee, rather than fewer than 25 employees to comply. Provides for automatic increases in contributions. Makes changes regarding penalties for employers who fail, without reasonable cause, to enroll an employee in the Program.
The Council has negotiated with the State Treasurer’s Office and the legislative sponsors the following changes to the bills:
- Increases the new employer threshold from one employee to five employees.
- Clarifies that new employer onboarding will be done in two waves – employers with 16 to 24 employees will have a deadline no sooner than September 1, 2022 and employers with 5-15 employees will have a deadline no sooner than September 1, 2023.
- 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.
HB 117-House approved 106-2-2 now in Senate Assignments Committee. SB 208- Senate 2nd Reading: NEUTRAL with agreed to amendment.
HB 118: Recovery of Damages for Underpayment in Wages (Rep. Will Guzzardi D-Chicago)
HB 118 amends the Wage Payment & Collection Act to provide that an employee is entitled to recover damages of 5% (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. This legislation passed out of the Labor Committee on a 17-11 partisan roll call and is now on the House 3rd Reading-short debate-OPPOSE
HB 559: BIPA-PROCEDURE-LIMIT DAMAGES (House GOP Leader Jim Durkin R-Western Springs)
The bill passed out of the House Judiciary- Civil Committee on a vote of 10-5-1. It requires aggrieved parties to prove actual damages in court. Furthermore, this bill provides a private entity 30 days to cure a violation of the Biometric Information Privacy Act (BIPA). Since 2019 there has been over 1,200 lawsuits predicated on the violation of BIPA which has financially harmed employers and nonprofit organizations of all sizes. The legislation is a Chamber initiative. This is the first time a piece of legislation concerning. House 3rd Reading-short debate-SUPPORT
HB 2622: School Visitation Leave (Rep. Anne Stava-Murray D-Downers Grove)
Amends the School Visitation Rights Act. Provides that an employer that terminates an employee for absences to attend school conferences is liable in a civil action for damages resulting to the employee. Imposes upon the employer the burden of proof to demonstrate that termination is not related to an employee's absence for attendance at a school conference, behavioral meeting, or academic meeting. Effective August 1, 2021. House Calendar 3rd Reading-short debate-OPPOSE.
Creates the Family and Medical Leave Insurance Program Act. Requires the Department of Labor to establish and administer a Family Leave Insurance Program that provides family leave insurance benefits to eligible employees who take unpaid family leave to care for a newborn child, a newly adopted or newly placed foster child, or a family member with a serious health condition. Sets forth eligibility requirements for benefits under the Act. Defines "employer" to mean an individual or entity that pays wages for work undertaken by an employee. Contains provisions concerning disqualification from benefits; premium payments; the amount and duration of benefits; the recovery of erroneous payments; hearings; defaulted premium payments; elective coverage; employment protection; coordination of family leave; defined terms; and other matters. Provides phase-in periods for collection of moneys and claims for benefits under the Act. Effective January 1, 2022. The underlying bill is on 3rd Reading. The amendment is assigned to Senate Labor Committee- OPPOSE
Employment Discrimination and Workplace Agreements
HB 121: HUMAN RIGHTS-WORK AUTHORIZATION (Rep. Will Guzzardi 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. We have been able to agree to an amendment that clarifies 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. Approved by the House 115-0-SUPPORT with amendment.
HB 700: IDHR-POWERS (Rep. Ann M. Williams D-Chicago)
Amends the Illinois Human Rights Act. Provides that the Department of Human Rights may petition and shall be permitted as a matter of right to intervene as a party in the proceeding if the Commission determines that: (i) the case involves matters of public interest or importance beyond the issues in the case; (ii) the Department has an interest different from one or more of the parties; (iii) the expertise of the Department makes it better suited to articulate a particular point of view; or (iv) the representation of the Department's interest by existing parties is or may be inadequate and the Department will or may be bound by an order or judgment in the action. Provides that the Department, as an intervenor, shall have all of the rights of an original party. Allows the Attorney General to intervene on behalf of the Department in a civil action filed by a complainant in State or federal court if the Department certifies that the case is of general public importance. House 2nd Reading-OPPOSE We have offered an amendment to IDHR that moves us to neutral.
HB 1811: Limits Use of Predictive Analytics in Employment Decisions (Rep. Jaime Andrade D-Chicago)
Amends the Equal Pay Act and the Consumer Fraud and Deceptive Business Practices Act requiring when using predictive data analytics in determining creditworthiness or in making hiring decisions, the use of predictive data analytics may not include information that correlates with the race or zip code of the applicant for credit or employment. A person or entity that relies either partially or fully on predictive data analytics to determine a consumer's creditworthiness may not allow information about the consumer's preference that correlates with the consumer's race or zip code to influence any conclusion regarding the consumer's creditworthiness. Provides that a person or entity that violates the provision commits an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. House 2nd Reading-short debate
HB 3058: Adds Prior Criminal Conviction to Protected Class (Rep. Camille Lilly-D-Chicago)
Amends the Illinois Human Rights Act to allow a formerly convicted person to petition the Department of Human Rights for a grant of protected class status. IDHR may grant protected class status to a formerly convicted person who meets the following conditions: the person has complied with each term and condition of his or her parole, mandatory supervised release, probation, or conditional discharge; the person has obtained a high school diploma or received a high school equivalency certificate; the person is employed or actively seeking employment or is enrolled in or has successfully completed a vocational training or college educational program; the person has not been convicted of a felony or misdemeanor within the last 5 years; and the person has completed all sanctions imposed upon him or her through due process of law. IDHR shall adopt rules to carry out the provisions. A protected class status previously granted to a formerly convicted person shall be revoked by the Department after notice and a hearing, if the formerly convicted person is subsequently convicted of a felony or misdemeanor. With the recently enacted changes to to how employers must handle criminal background information, we have serious reservations as to how this legislation will work. House 2nd Reading-short debate
HB 3418: Sexual Harassment Settlements (Rep. Jonathan Carroll D-Northbrook)
Amends the Workplace Transparency Act prohibiting nondisclosure requirements from being imposed in settlements relating to claims of sexual harassment or sexual assault in the workplace except as they relate to the monetary amount of the settlement or, at the employee's request, when they prohibit disclosure of facts that could lead to the identification of the employee. Passed the House 114-0. Upon further review, we have determined that this measure will undue the balance that the Workplace Transparency Act currently enjoys. This compromise only went into effect on January 1, 2020. We have communicated our concerns to the Senate.
HB 3914: Positive Action Act (Rep. Mary Flowers D-Chicago)
Creates the Positive Action Act which requires each State agency and employer shall take positive action when it reasonably believes such action is necessary to rectify discrimination or a disadvantage towards persons having a protected characteristic. Allows for favorable consideration in the process of recruitment or promotion for persons having a protected characteristic. Each State agency and employer shall have a duty of equality in relation to employment and its employees. Specifies further requirements concerning the duty of equality. Nothing in the Act shall be construed to contravene any federal law or requirement regarding affirmative action or its application to State law. Makes conforming changes for the purpose of changing references from "affirmative action" to "positive action". House 2nd Reading-short debate
SB 1847: Creates the CROWN Act (Sen. Mattie Hunter (D-Chicago)
Adds the CROWN (Create a Respectful and Open Workplace for Natural Hair) Act to the Illinois Human Rights Act. Provides that the amendatory Act may be referred to. Provides that "race", as used in the Employment and Elementary, Secondary, and Higher Education Articles, includes traits historically associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists. Approved by the Senate Human Rights Committee.
Medical Marijuana
HB 3431: Employment Drug Testing (Rep. Bob Morgan D-Highwood)
Amends the Compassionate Use of Medical Cannabis Program Act to prohibit employers from adopting specified policies concerning medical cannabis by registered qualifying patients, including drug testing policies for such patients working in safety sensitive positions. Unless specified circumstances are met, prohibits employers from taking adverse action against registered qualifying patients who work in non-safety sensitive positions solely due to a positive drug test for medicinal cannabis. Defines "safety sensitive position". Provides that nothing in the Act prohibits an employer from enforcing a preemployment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug free workplace policy (rather than only a workplace drug policy) or disciplining a registered qualifying patient for violating such a policy, provided that an employer shall not take adverse action against a registered qualifying patient in a non-safety sensitive position solely due to a positive drug test for medical cannabis (rather than due to a positive drug test for cannabis) unless specified criteria are met. Provides that there is not a cause of action for any person against an employer for disciplining or terminating the employment of a registered qualifying patient when enforcing a compliant policy. Makes other changes. Amends the Right to Privacy in the Workplace Act. Provides that the amendatory Act's provisions are an exception to provisions prohibiting an employer from refusing to hire or to discharge or disadvantage any individual because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. Effective immediately. The Illinois Chamber negotiated this legislation with Rep. Morgan. House 2nd Reading-short debate-SUPPORT.
Workers’ Compensation
HB 1957: Group Workers’ Compensation Pools (Rep. Thad Jones D-Chicago)
SB 1993: (Sen. Antonio Munoz D-Chicago)
This is a Department of Insurance initiative. 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. The measure was approved by the House Insurance Committee and goes to the House floor. HB 1957-House 3rd Reading-consent calendar-NEUTRAL; SB 1993-Senate 3rd Reading
HB 2947: TRANSFER of IWCC INSURANCE COMPLIANCE DIVISION to DOI (Rep. Bob Morgan D-Highwood)
Transfers all powers, duties, rights, responsibilities, personnel, books, records, papers, documents, property (real and personal), contracts, causes of action, and pending business of the Insurance Compliance Division within the Illinois Workers' Compensation Commission to the Department of Insurance. Provides that, when reports or notices are to be made or given or papers or documents furnished or served by any person to or upon the Insurance Compliance Division, they shall be made, given, furnished, or served in the same manner to or upon the Department of Insurance. Provides that the amendatory Act does not affect any act done, ratified, or canceled, any right occurring or established, or any action or proceeding had or commenced in an administrative, civil, or criminal cause by the Insurance Compliance Division before the amendatory Act takes effect. Makes other changes. Amends the Workers' Compensation Act. Replaces references to the Insurance Compliance Division with references to the Department of Insurance. In provisions concerning Department of Insurance oversight, changes the date before which insurers licensed to write workers compensation coverage in the State must record and report specified information concerning claims from March 1 to June 1 of each year. Deletes a provision stating that the fraud and insurance non-compliance unit shall procure and implement a system using advanced analytics for the detection and prevention of fraud, waste, and abuse. Effective July 1, 2021. House 2nd Reading-consent calendar-SUPPORT
HB 3662: MRSA Presumption (Rep. Marcus Evans D-Chicago)
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. Effective immediately. House 2nd Reading-short debate
HB 3697: Prevents WC Act to Pre-empt BIPA Action (Rep. Jay Hoffman D-Belleville)
Provides the Workers' Compensation Act does not preempt or prevent an employee from recovering under the Biometric Information Privacy Act. House 3rd Reading-short debate-OPPOSE
HB 3293: IWCC SALARIES (Rep. Jay Hoffman D-Belleville)
Replaces language regarding the qualifications of Commissioners of the Illinois Workers' Compensation Commission with language requiring each Commissioner appointed on or after the effective date of the amendatory Act to be authorized to practice law in this State. Provides that each Commissioner appointed on or after the effective date of the amendatory Act shall receive an annual salary of 70% of a Circuit Court Judge in the Judicial Court constituted by the First Judicial District under the Salaries Act and the Chairman shall receive an annual salary of 5% more than the other Commissioners. Provides that the performance of arbitrators shall be reviewed by the Chairman every other year, or more often at the discretion of the Chairman (rather than on an annual basis). Provides that no arbitrator shall hear cases in any county, other than Cook County, for more than 4 years consecutively (rather than 2 years in each 3-year term). Provides that the Secretary and each arbitrator shall receive a per annum salary of 5% less than the per annum salary of members of the Illinois Workers' Compensation Commission. Provides for the dissolution of the Self-Insurers Administration Fund and for the transfer of the moneys in that fund to the Self-Insurers Security Fund. Authorizes expenditures from the Self-Insurers Security Fund for the purposes that were authorized for the Self-Insurers Administration Fund. Effective immediately. Passed the House 115-0-SUPPORT
