General Assembly Focuses on Committee Action
March 26th currently is the deadline for both the Illinois House and Senate. There are over 1,000 bills in both chambers that not yet assigned to a standing committee. The implications are that these bills will be assigned this week and have at best only one hearing. There is a possibility that the deadline for committee action could be extended into April.
Bills that have Advanced Out of Committee
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 calendar for a second reading. OPPOSE
HB 121: HUMAN RIGHTS-WORK AUTHORIZATION (Rep. Will Guzzardi D-Chicago)
We communicated concerns to the sponsor that the legislation needed clarification to assure employers that they would not be responsible for securing or maintaining an individual’s work authorization. The Immigration & Human Rights Committee advanced the measure on a 7-1 vote. We have additional discussions scheduled this week with the proponents of the legislation.
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.
HB 121 adds 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 work authorization status; (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 work authorization status; (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 work authorization status; and (4) any employer to refuse to honor work authorization based upon the specific status or term of status that accompanies the authorization to work. Also it will be 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 work authorization status. Makes conforming changes.
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 1,000 lawsuits predicated on the violation of BIPA which has financially harmed employers and nonprofit organizations of all sizes. The legislation is a Chamber initiative. The Chamber thanks Leader Durkin and Committee Chairman Andre Thapedi (D-Chicago) for their leadership on this issue.
This is the first time a piece of legislation concerning BIPA reform has passed out of committee. Even more, this was the first time any consideration of BIPA reform has been given a hearing. SUPPORT
Bills in Committee this Week
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. Cybersecurity, Data Analytics, & IT Committee
HB 353: MINIMUM WAGE-ESSENTIAL WORKERS (Rep. Mary E. Flowers D-Chicago)
Amends the Minimum Wage Law. Increases the minimum wage to $20 per hour for essential workers for the duration of the COVID-19 public health emergency. Wage Policy & Study Subcommittee & Labor Committee OPPOSE
Employment Discrimination and Workplace Agreements
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. Makes conforming changes. House Judiciary- Civil Committee OPPOSE
HB 3066: NON-COMPETE HIGHER THRESHOLD Rep. Kelly Burke (D-Chicago)/Rep. Dan Ugaste (R-Geneva)
SB 1838: NON-COMPETE PROHIBIT Sen. Mattie Hunter (D-Chicago)
The Council has negotiated this legislation with the National Employment Lawyers Association. Organizations from both the employee and the employer perspectives have suggested additional changes to this legislation and we expect some minor changes to occur. The legislation should be assigned to committee this week and a hearing scheduled for next week. Sen Mattie Hunter also has agreed to take up an agreed bill in the Senate and will be amending her legislation SB 1838. Her measure as introduced would prohibit all non-compete agreements. It has been assigned to the Senate Labor Committee.
Workplace Mandates
HB 74: PAID FAMILY LEAVE ACT (Rep. Mary E. Flowers D-Chicago)
Creates the Paid Family Leave Act. Requires private employers with 50 or more employees to provide 6 weeks of paid leave to an employee who takes leave: (1) because of the birth of a child of the employee and in order to care for the child; (2) to care for a newly adopted child under 18 years of age or a newly placed foster child under 18 years of age or a newly adopted or newly placed foster child older than 18 years of age if the child is incapable of self-care because of a mental or physical disability; or (3) to care for a family member with a serious health condition. Provides that paid family leave shall be provided irrespective of the employer's leave policies; and shall be provided to an employee who has been employed by the employer for at least one year. Permits employees to voluntarily waive paid family leave. Provides that the Department of Labor may adopt any rules necessary to implement the Act. House Labor Committee OPPOSE
HB 117: SECURE CHOICE SAVINGS PROGRAM (Rep. Will Guzzardi 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.
House Personnel & Pensions Committee & Senate State Government Committee: OPPOSE original bill, NEUTRAL with agreed to amendment.
HB 127: LOW-WAGE EMPLOYER-RECOUP COSTS (Rep. Michael Halpin D-Rock Island)
Creates the Low-Wage Employer Cost Recoupment Act. Directs the Department of Labor to impose a surcharge upon employers that pay employees wages that are less than the amount that would disqualify a single person from being eligible for federal Supplemental Nutrition Assistance Program benefits. Imposes a surcharge in an amount equal to the annual value of the amount of federal Supplemental Nutrition Assistance Program benefits for which a single person would be eligible multiplied by the number of employees whose wages do not disqualify a person from eligibility for federal Supplemental Nutrition Assistance Program benefits. Effective immediately. House Labor Committee OPPOSE
HB 616: FAMILY AND MEDICAL LEAVE ACT (Rep. Terra Costa Howard D-Lombard)
Creates the Family and Medical Leave Act. Provides that employees are entitled to 12 weeks of leave during a calendar year. Provides that leave may be used for absence from work due to (1) personal illness, injury, or medical appointment of the employee, (2) illness, injury, or medical appointment of a member of the employee's family, or (3) the birth of a child or the adoption of a child under one year of age. Requires the employer to pay the cost of health insurance applicable to the employee during the period of leave. Requires that the employee be returned to his or her position or an equivalent position upon completion of the family and medical leave period. House Labor Committee OPPOSE
Workers’ Compensation
HB 1957: Group Workers’ Compensation Pools (Rep. Thad Jones 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. NEUTRAL
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. SUPPORT
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. SUPPORT
This bill has not yet been assigned but we believe it will be heard in the House Labor Committee next week.
SB 1480 Awaits Governor Action
SB 1480 was sent to the Governor on February 5th and has until April 6th to act on the measure. While well-intentioned, the Illinois Black Caucus’ legislation has a number of structural flaws. In a coalition letter of nearly 20 organizations organized by the Illinois Chamber, the Governor was requested to allow the Chamber to negotiate changes in a trailer bill to be approved this Spring before he acted on the legislation. It is expected that the Governor will be signing SB 1480 into law which has an immediate effective date.
The Chamber has outlined our concerns and provided suggested revisions to the Illinois Department of Human Rights (IDHR) and the Illinois Department of Labor (IDOL). To IDHR, we pointed out the problems of an employer needing to ascertain a “substantial relationship” between the applicant’s criminal history and the job. The employer, under the definition in SB 1480, also will bear the burden of determining the circumstances of the convictions and whether the criminal act is likely to reoccur. We also are seeking to harmonize the SB 1480 notice process with that of the federal Fair Credit Reporting Act.
In recent discussions with IDOL about implementation, we noted our biggest concern is the 1% of gross profit penalty provision. We also believe that the legislation fails to adequately protect proprietary wage and benefit structures information that must be submitted to the Department.
Upcoming Chamber Webinars
Title: How to Play the Game: Opportunities and Pitfalls in a “Gamified” Workplace
Date/Time: March 18, 2021 | 1:30 pm – 2:30 pm
Description: In recent years, gamification has captured employers’ interest as a way to spruce up employee recruitment, training, performance, and engagement. Gamification in the workplace uses game elements to motivate employees to perform their best. It prompts them to compete with their goals, and/or team members, as well as past accomplishments. It shows how they’re doing and what’s needed to reach their goals. In this presentation, we will unpack the gamification craze and explore legal traps that employers should account for in in considering a gamification strategy.
Topics will include:
- an overview of gamification
- exploration of potential legal pitfalls including in the area of: wage-hour law, discrimination, reasonable accommodation, and privacy
- best practices for implementing a gamification strategy
Attached is the webinar flyer as well as the image on the flyer.
Title: Dealing with Lenders: From Negotiation to Documentation
Date/Time: March 30, 2021 | 10:30 am – 11:30 am
Description: This webinar will discuss commercial loans from a lender’s perspective and the different concessions that a lender can make in order to get a loan deal. In particular, we will discuss what lenders look for in potential borrowers, some of the different “levers” that lenders can use to make a deal workable for all parties, and loan documentation clauses that lenders will and will not agree to change. Join Michael Cortina, co-chair of SmithAmundsen’s Financial Services Group, for this information and timely presentation!
Attached is the webinar flyer as well as the image on the flyer.