There are several recent legislative developments in Illinois, and a new City of Chicago executive order, of which employers should take note.
1. Illinois Human Rights Act: Rights of New and Expectant Mothers to Seek Reasonable Accommodations
Effective January 1, 2015, new or expecting mothers will have expanded protections under the Illinois Human Rights Act (IHRA), including the right to seek reasonable accommodations for medical or other common conditions related to pregnancy or childbirth. The new law comes on the heels of the EEOC’s issuance of detailed Enforcement Guidance on pregnancy discrimination, as well as the Supreme Court’s decision to hear the case of Young v. United Parcel Service, a case that will decide an employer’s duty to accommodate pregnant employees under the Pregnancy Discrimination Act, 42 U.S.C § 2000e(k).
The IHRA already prohibits employers with 15 or more employees from discriminating against female employees on the basis of pregnancy. The new law will require all employers, regardless of size, to provide reasonable accommodations based on pregnancy, childbirth and medical or common conditions related to pregnancy, unless the employer can demonstrate that such accommodations would impose an undue hardship. The accommodation process under the new law is similar to the interactive process already utilized by employers in responding to disability-related accommodation requests.
The Act includes these examples of potentially reasonable accommodations:
- More frequent or longer restroom breaks;
- Breaks for increased water intake;
- Breaks for periodic rest;
- Private non-bathroom space for expressing breast milk and breastfeeding;
- Assistance with manual labor;
- Light duty;
- Temporary transfer;
- The provision of an accessible worksite;
- Acquisition or modification of equipment;
- Job restructuring;
- Part-time or full-time modified work schedule;
- Appropriate adjustment or modification of examinations, training materials or assignments;
- Reassignment to a vacant position;
- Time off to recover from conditions related to childbirth; and
- Leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.
The new law also includes notice requirements for employers. Employee handbooks must now include a summary of the requirements of the law, information pertaining to the filing of a charge and notification of an employee’s right to be “free from unlawful discrimination” and to receive “certain reasonable accommodations.” The law also requires the posting of an approved notice prepared or approved summarizing the law.
2. IHRA: Expanded Rights for Unpaid Interns
Effective January 1, 2015, Illinois’ prohibitions on sexual harassment in the workplace will now extend to unpaid interns. On August 25, 2014, Governor Quinn signed a law amending the IHRA to include unpaid interns in the definition of “employee” the purpose of filing sexual harassment claims. The law defines an unpaid intern as an individual working for the employer who (1) the employer is not committed to hiring at the conclusion of the intern’s tenure; (2) is not entitled to wages; and (3) performs work that supplements education, provides a benefit for the person performing the work, does not displace regular employees, and provides no immediate advantage to the employer.
Although unpaid interns still have no cause of action for sexual harassment under federal law, unpaid interns meeting the above criteria will now have the right to file a sexual harassment charge against their employer with the Illinois Department of Human Rights.
3. Illinois Equal Pay Act: Expanded Enforcement With the IHRA
Governor Quinn recently signed an amendment to the Illinois Equal Pay Act (Act) expanding its enforcement provisions. The Act prohibits employers with four or more employees from paying unequal wages to men and women doing the same or substantially similar work, with some exceptions. The Act is administered and enforced by the Illinois Department of Labor (IDOL). With this amendment, however, the IDOL can refer complaints of alleged violations of the Act to the Illinois Department of Human Rights (IDHR) if the complaint also alleges a violation of the IHRA. If such a referral is properly made, the IDHR will proceed with investigating the complaint under IHRA.
The IDOL will retain authority to review the IDHR’s investigation and findings to determine whether a violation of the Act occurred and, where appropriate, take further action to enforce the Act’s provisions. The IDOL and IDHR will be adopting joint rules for the administration and enforcement of this change.
4. Wage Payment and Collection Act: Use of Payroll Debit Cards
On August 6, 2014, Governor Quinn signed into law an amendment to the Illinois Wage Payment and Collection Act that permits employers to pay employees using payroll debit cards. The amendment, effective January 1, 2015, adds payroll debit cards to the list of traditional payment methods (i.e., check and direct deposit), but also places a number of restrictions on their use. For example, employers may not condition employment on receipt of wages by payroll debit card. Employees who elect to be paid by payroll debit card must have the right to later request to be paid by another method of compensation.
The amendment also contains a number of other requirements with which employers must comply:
- Employee-Notice Requirements: Employers will not be able to initiate payment by payroll card unless certain notice requirements are satisfied, including voluntariness of a debit card as a method of payment, information about other means of payment, and employee consent.
- Payroll Debit Card Program Requirements: The debit card program offered to employees must also provide employees with (1) at least one method of withdrawing the employee’s full net wages from the payroll card once per pay period (no less than twice per month) at no cost to the employee, at a location readily available to the employee; (2) one transaction history per month in paper or electronic form, at the employee’s request; and (3) unlimited telephone access to obtain payroll card account balance at any time without incurring a fee.
- Transaction-Fee Requirements: The amendment prohibits employers from using payroll card programs that charge fees for point of sale transactions, the application, initiation, loading of wages by the employer, or participation in the payroll debit card program. Fees for account activity may only be assessed after one year of inactivity. Additionally, the payroll card program must offer an employee a declined transaction, at no cost to the employee, at least twice per month.
5. New Minimum Wage for City of Chicago Contractors and Concessionaires
Following the lead set by President Obama’s February 2014 executive order raising the minimum wage for employees of federal contractors, on September 3, 2014 Chicago Mayor Rahm Emanuel issued an Executive Order establishing a $13.00 base minimum hourly wage for City contractors and concessionaires. The Order applies to contracts formed under the City’s procurement services authority and to agreements for concession operations on City property where the City receives a portion of the concession revenues, but excludes not-for-profit contractors and concessionaires.
The Order sets a $13.00 per hour floor for employees working on city contracts and concessionaire agreements. Such wage will increase yearly on July 1 thereafter based on inflation. Contracts must now include provisions stipulating that employees be paid at least the required wage for work performed under the contract or agreement, and that tipped employees working for concessionaires be paid an hourly rate at least $1.00 higher than Illinois’ minimum wage for tipped employees, and earn, in combined tips and wages, at least the hourly wage required for non-tipped employees. City contractors and concessionaires must also require their subcontractors, sublicensees, subtenants, and subconcessionaires to meet these new minimum wage requirements.
The Order generally covers employees working on covered contracts and concession agreements, but exempts certain groups of individuals whose work is limited to providing general support for the City contractor’s operations. The Order does not impact wages of unionized workers set forth in collective bargaining agreements already in effect, and permits the requirements of the Order to be waived by union members in future agreements if the waiver is set forth in the collective bargaining agreement in clear and unambiguous terms.
The City Department of Procurement Services can terminate agreements performed in violation of the Order’s provisions and can reject bids or proposals submitted in violation of these provisions.
The Order takes effect October 1, 2014 and applies to contracts and concession agreements advertised on or after October 1, 2014.
To discuss the implications of any of the new legislation or the executive order, please contact any member of Schiff Hardin’s Labor and Employment Group.