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New laws force employers to update policies and procedures

A number of important changes to Illinois employment law are going into effect that will change how employers accommodate greater protections for employees. New restrictions on certain hiring practices and pay equity have just started, while other changes impacting workers’ rights, severance packages, legalized marijuana and drug testing will go into effect at the beginning of 2020 and beyond. Illinois employers need to take these laws seriously and prepare to comply with them in the workplace.

Effective Sept. 29, amendments to the Illinois Equal Pay Act now prohibit an employer from:

  • screening job applicants based on their current or prior wages or salary histories
  • requiring a wage or salary history as a condition of being considered for a position
  • turning down an applicant for refusing to comply with a salary history inquiry.
Jordan Lewis

Jordan Lewis

Employers may still ask about an applicant’s compensation expectations during the interview and screening process.

The term “equal pay” for jobs that require equal skills now is broadened to include jobs that require substantially similar skills, effort and responsibility. In addition, employers may not prohibit an employee from discussing his or her wages, salary or other benefits, and compensation with others at the workplace. HR and other personnel with access to confidential wage and salary information still can be prohibited from disclosing that information without written consent.

Beginning Jan. 1, 2020, the scope of protection provided by the Illinois Human Rights Act (IHRA) will expand in terms of who is affected, where harassment can take place and what training and reporting the employer is required to provide. Under the expanded provisions:

Discrimination can be based upon both an individual’s actual and perceived protected class, such as race, religion and/or age.

The workplace where harassment is prohibited can include the building in which an employee performs his or her duties, as well as remote work sites.

Non-employees such as contractors, consultants and others performing services for an employer will have protection under the IHRA.

Every Illinois employer must provide annual anti-sexual harassment training for all employees that includes an explanation of sexual harassment, examples of unlawful sexual harassment, a summary of relevant state and federal laws prohibiting sexual harassment, the consequences for violating those laws and a summary of the employer’s responsibility to prevent, investigate, and correct sexual harassment.

Employers must report to the state of Illinois by July 20 each year the total number of adverse judgments or administrative rulings against the employer under federal and state law.

In addition, beginning July 1, 2020, the IHRA applies to all employers with one or more employees in Illinois during 20 or more calendar weeks per year. The IHRA is generally broader than federal anti-discrimination laws in certain areas, including pregnancy accommodation requirements, prohibition of discrimination based on sexual orientation, gender identity, military status and marital status.

Also, effective Jan. 1, 2020, victims of “gender violence” can receive the protections of the Illinois Victims’ Economic Security and Safety Act, such as unpaid leave in certain circumstances.

Another big change for employers to be aware of is Illinois’ new Workplace Transparency Act (WTA), which applies to contracts and agreements entered into, modified, or extended on or after Jan. 1, 2020. The WTA imposes restrictions on any agreement or contract that requires an employee or applicant to accept the agreement or contract as a “standard” employment agreement over which the employee or applicant cannot bargain. Such agreements cannot include confidentiality or non-disparagement provisions that would prohibit any employee from making disclosures about alleged unlawful employment practices.

When a contract or agreement is bargained for between employee and employer, however, the agreement may:

  • contain confidentiality and non-disparagement provisions with certain limitations
  • include confidentiality and non-disparagement provisions in a termination agreement, severance agreement or settlement agreement as long as certain conditions are satisfied
  • restrict the use of mandatory arbitration provisions in employment agreements.

A new Illinois law takes effect Jan. 1, 2020 that makes the recreational sale, possession, and use of marijuana and cannabis legal for adults age 21 and older. The Cannabis Regulation and Tax Act has implications for both hiring practices and drug testing of employees. Employers are still permitted to enforce a “drug-free workplace” and “zero-tolerance” policies that prohibit employees being at work while under the influence of marijuana. Disciplinary action must be based on a belief that the employee’s performance is impaired, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior.

Enforcement can get tricky because employees who use marijuana recreationally are protected by the Illinois Right to Privacy in the Workplace Act, which prohibits employers from taking adverse employment actions against any employee for using “lawful products” outside of the workplace and during non-working hours. Additionally, individuals using medical marijuana pursuant to a prescription have separate protections in Illinois pursuant to the Compassionate Use of Medical Cannabis Pilot Program Act, although cannabis patients may not use medical marijuana while at work or on call.

Under the Cannabis Act, unless an employer is otherwise subject to federal rules and regulations regarding the use of marijuana:

An applicant likely cannot be rejected for employment based on a marijuana-positive drug test alone because such use would have occurred outside of the workplace.

An employee cannot be terminated for a marijuana-positive drug test alone; rather, the employer must be able to point to specific symptoms of impairment at work, and the employee must first be given “a reasonable opportunity to contest” the basis for the employer’s decision.

In summary, the new changes in Illinois employment law generally provide employees more protections, while the new Cannabis Act opens employers to a whole new world of workplace challenges. Employers should take steps now to update their policies and practices and educate their HR and management personnel to ensure a seamless transition.

Jordan Lewis is an attorney at Carmody MacDonald in St. Louis. He specializes in business litigation, employment law and real estate.

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