by Brian LaFratta
Illinois employers are well aware that the law in this state is very protective of employees.  During 2014, several new employment laws were enacted which go into effect in 2015.  The following is a summary of these laws.

Extension of Sexual Harassment Laws to Unpaid Interns
The Illinois Human Rights Act (“IHRA”) prohibits sexual harassment of employees.  On August 25, 2014, Governor Quinn signed legislation amending the IHRA to prohibit sexual harassment of unpaid interns, by expanding the definition of “employee” under the IHRA to include unpaid interns for purposes of sexual harassment.

​Although most employers already have policies in effect prohibiting sexual harassment of interns, the significance of this new law is that such interns now have the right to file discrimination charges and lawsuits against employers if they are subjected to sexual harassment.  Thus, employers must take steps to prevent such harassment from occurring.

Payment of Wages via Payroll Card Allowed
On August 7, 2014, Governor Quinn signed an amendment to the Illinois Wage Payment and Collection Act that provides that employers may pay wages on a “payroll card” that meets certain requirements. However, such method is acceptable only if the following factors are met:

  • The employee must voluntarily agree to the use of a payroll card as the method the employee chooses to receive his or her wages and/or final compensation.  It is not voluntary in fact if the employee is given to understand or led to believe that it is a condition for hire or his or her present working conditions or continuance of his or her employment would be adversely affected by non-acceptance.  An employer cannot mandate the use of a payroll card.
  • If an employee voluntarily chooses to accept the use of a payroll card for the payment of wages and/or final compensation, the employer must disclose in writing to the employee all fees, penalties and costs associated with the use of the payroll card.  The employee must be able to deposit and/or obtain the full monetary value on the payroll card without discount.
  • If the employee chooses the payroll card as a method of payment, the employer is required to provide an itemized statement of all hours worked, rate of pay, and all lawful deductions made from the wages and/or final compensation for each pay period.
  • An employee can revoke his or her authorization of the payroll card as a method of payment at any time and the employer is obligated to provide to the employee another alternative method for the payment of wages and/or final compensation.
  • An employer is not permitted to offer employees only the choice between two voluntary methods of payment. Because payment by either payroll card or direct deposit must be voluntary, an employer offering either or both of these payment methods must also provide an additional choice of payment by cash or check.

Reasonable Accommodations for Pregnant Employees Required
On August 26, 2014, Illinois enacted a new law requiring employers to provide reasonable accommodations to pregnant employees.  The new law applies to all employers in Illinois, regardless of the number of employees the employer has.

Reasonable Accommodations
The new law effectively requires employers to treat pregnancy much like a disability in terms of providing accommodations.  Accordingly, if an employee is unable to perform aspects of her position due to her pregnancy or pregnancy-related condition, the employer must provide a reasonable accommodation which will allow her to perform the essential functions of the position, unless doing so would be an undue hardship to the employer.

The new law sets out a list of non-exclusive potential reasonable accommodations:

  • more frequent or longer bathroom breaks
  • breaks for increased water intake and breaks for periodic rest
  • private non-bathroom space for expressing breast milk and breastfeeding
  • seating
  • assistance with manual labor or light duty
  • temporary transfer to a less strenuous or hazardous position
  • the provision of an accessible worksite
  • a part-time or modified work schedule
  • appropriate adjustment or modifications of examinations, training materials, or policies
  • reassignment to a vacant position
  • time off to recover from conditions related to childbirth
  • leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth

Return from Leave of Absence
If an employer provides a leave of absence as a reasonable accommodation, upon return from leave, the employee must be reinstated in the same or an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits unless doing so would constitute an undue hardship.

Retaliation and Notice
The new law also prohibits employers from retaliating against employees who request or attempt to request a reasonable accommodation due to their pregnancy.  The Illinois Department of Human Rights will be creating a notice which employers will be required to post in the workplace.

The new Illinois law is a significant expansion to the Illinois Human Rights Act.  Employers will not only be required to provide accommodations to pregnant employees, but will have to be careful about issuing discipline to pregnant employees to avoid retaliation claims.  In addition, employers will need to review and revise their existing employee handbooks to ensure compliance with the new law.

Limitation on Criminal Background Checks of Employees
On July 19, 2014, Illinois enacted a new law limiting employer’s use of criminal background checks.  The new law, entitled the Job Opportunities for Qualified Applicants Act, prohibits private employers from asking about a job applicant’s criminal background until after the employer has determined the applicant is qualified for the job and notified the applicant that he or she was selected for an interview.  If the employer does not conduct interviews for the position, then the employer cannot ask about criminal background until after making a conditional offer of employment.

These requirements do not apply to positions where (1) employers are required to exclude applicants with certain criminal convictions from employment due to federal or State law; (2) a standard fidelity bond or an equivalent bond is required and an applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond, in which case an employer may include a question or otherwise inquire whether the applicant has ever been convicted of any of those offenses; or (3) employers employ individuals licensed under the Emergency Medical Services (EMS) Systems Act.

Further, the law “does not prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or State law or the employer’s policy.”  However, employers need to be careful about such notices, as the federal EEOC prohibits blanket criminal background disqualification policies.

Many employers’ current job applications specifically ask the applicant to disclose information regarding convictions.  Under the new law, this will no longer be permissible.

Additionally, employers will need to consider modifying their hiring practices to account for the new law’s restrictions while still hiring the right workers for the job.

For additional information, or to consult with one of our employment law attorneys, please feel free to contact Brian LaFratta at (630) 344-1187, or at blafratta@huckbouma.com.