Amendments to the Equal Pay Act: Several proposed amendments to the Equal Pay Act have been made. The first amendment, which became effective January 1, 2019, extends the Act’s protections to African Americans. And, more recently, on July 31, 2019, the Act was amended to prohibit employers from: (i) requiring an employee to sign a contract or waiver that would prohibit the employee from disclosing or discussing information about the employee’s wages, salary benefits, or other compensation, (ii) screening job applicants based on their wage or salary history or requiring them to disclose their wage or salary history as a condition of being considered for employment as a condition of being interviewed, as a condition of continuing to be considered for an offer of employment, as a condition of an offer of employment, or as a condition of an offer of compensation, (iii) obtaining job applicants’ prior wages or salaries from current or former employers (except for information that is a matter of public record or if the applicant is a current employee and applying for a position with the same, current employer), and (iv) discharging or discriminating against applicants who fail to comply with wage or salary history inquiries. The most recent amendment, which became effective September 29, 2019, also adds requirements for a permitted differential factor and provisions on penalties/damages.
Reimbursement for Expenses: As of January 1, 2019, the Illinois Wage Payment and CollectionAct contains a new section requiring reimbursement of necessary expenditures or losses incurred by employees within the scope of their employment and directly related to services performed for their employer.
Protections for Military Members: On January 1, 2019, the Service Member Employment and Reemployment Rights Act (ISERRA) went into effect. This new statute is aimed at military service members. It incorporates the Uniformed Services Employment and Reemployment Rights Act (USERRA) with certain modifications and provides specified benefits to public employees. In passing ISERRA, the legislature repealed the Military Leave of Absence Act, the Public Employee Armed Services Rights Act, the Municipal Employee Military Active Duty Act, and the Local Government Employees Benefits Continuation Act, as well as certain sections of the Military Code of Illinois, the State Guard Act, and the Service Member’s Employment Tenure Act.
Amendments Concerning Wages:
On February 19, 2019, the Lifting Up Illinois Working Families Act was enacted. It raises the minimum wage for employees 18 years or older to $9.25 per hour, effective January 1, 2020 through June 30, 2020; $10.00 per hour, effective July 1, 2010 through December 31, 2020; and $1 increases each year until the minimum wage hits $15, effective January 1, 2025. And, effective January 1, 2020, the minimum wage for employees under the age of 18 will be determined differently.
Those that will work more than 650 hours per calendar year will be compensated the same amount as adult employees. Those that work 650 hours or less will need to be paid $8 per hour from January 1, 2020 through December 31, 2020; $8.50 per hour from January 1, 2021 throughDecember 31, 2021; $9.25 per hour from January 1, 2022 through December 31, 2022; $10.50 per hour from January 1, 2023 through December 31, 2023; $12 per hour from January 1, 2024 through December 31, 2024; and $13 per hour on and after January 1, 2025. Employers with 50 or less full-time employees may be entitled to a tax credit, which is set on a decreasing schedule through December 31, 2025. Additionally, the Act creates a penalty for failing to keep required payroll records and increases the damages/penalty for underpayment of wages.
On August 23, 2019, the Illinois Wage Payment and Collection Act was amended to contain a new provision on gratuities, which becomes effective January 1, 2020. The amendment states that gratuities are the property of the employee and that they may not be retained by the employer for than 13 days after the end of the pay period in which such gratuities were earned, although employers may reduce the gratuity for credit card processing fees as outlined in the Act.
Collective Bargaining Freedom: The Collective Bargaining Freedom Act was enacted and went into effect on April 12, 2019. Under the Act, employers and labor organizations covered by the National Labor Relations Act may execute and apply agreements requiring membership in a labor organization as a condition of employment to the full extent as authorized by the National Labor Relations Act.Moreover, the Act renders void any legislation, rule, law, or ordinance that restricts or prohibits, in any manner, the use of union security agreements between an employer and labor organization as authorized under 29 U.S.C. 158(a)(3).
Legalization of Recreational Marijuana: On June 25, 2019, the Cannabis Regulation and Tax Act became effective. In relevant part, it amends the Right to Privacy in the Workplace Act to define lawful products as those that are lawful under state law except as provided by Section 10-50 of the Act. Although, the Cannabis Regulation and Tax Act legalizes marijuana, Section 10-50 enables employers to maintain reasonable zero tolerance or drug-free workplace policies and to prohibit employees from being under the influence at the workplace, while working, or while on call.
Background Checks on Health Care Workers: On July 31, 2019, the Health Care Worker Background Check Act was amended to include application to individuals enrolling in a training program and to provide for initiation of finger-based criminal history record checks by workforce intermediaries (organizations that function to provide job training and employment services) and organizations providing pro bono legal services.
Sexual Harassment Victim Representation in Union Proceedings: The Sexual Harassment Victim Representation Act became Illinois law on August 9, 2019 and will become effective January 1, 2020. Under the Act, a victim of sexual harassment may not be represented in the proceeding by the same union representative who is representing the perpetrator who is a member of the same union.
Workplace Transparency Act: On August 9, 2019, the Illinois Workplace Transparency Act was enacted. Starting January 1, 2020, itwill prohibit employers from interfering with employees reporting unlawful discrimination, harassment, or retaliation (jointly referred to as an unlawful employment practices under the Act). For example, it includes prohibition of any agreement, clause, covenant, or waiver that is a unilateral condition of employment or continued employment and that has the purpose or effect of preventing an employee or prospective employee from making truthful statements or disclosures about alleged unlawful employment practices or that requires the employee or prospective employee to waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit related to an unlawful employment practice to which the employee or prospective employee would otherwise be entitled. And, it sets out requirements for an agreement, clause, covenant, or waiver that is a mutual condition of employment or continued employment and for settlement or termination agreements.
Protection Against Gender Violence: The Victims’ Economic Security and Safety Act was amended on August 9, 2019 to apply to gender violence (in addition to domestic and sexual violence) and include online platforms in the definition of electronic communications, effective January 1, 2020.
Sexual Harassment Protections for Hotel and Casino Employees: On August 9, 2019, the Governor signed into law the Hotel and Casino Employee Safety Act, which, effective July 1, 2020, will require hotels and casinos to equip employees assigned to work alone in a guest room, restroom, or casino floor with a safety or notification device. They will also be required to develop, maintain, and comply with a written anti-sexual harassment policy, designed to protect employees against sexual assault/harassment by guests.
Requirements Associated with Video Interviews: The Artificial Intelligence Video Interview Act was enacted on August 9, 2019 and will go into effect on January 1, 2020. The Act sets requirements as to video-recorded interviews and artificial intelligence analysis of applicant-submitted videos, such as obtaining applicant informed consent.
Amendments to the Illinois Human Rights Act (“IHRA”)
The IHRA was amended on August 9, 2019. The amendment, which becomes effective January 1, 2020, involves: expansion of the definition of work environment so that it is not limited to a physical location, making (general—not just sexual) harassment unlawful, adding provisions concerning liability for harassment (including harassment of nonemployees), and a clarification that unlawful discrimination means discrimination on the basis of an actual or perceived protected characteristic. Further, it adds a requirement that employers with adverse judgments or rulings make new disclosures to the Illinois Department of Human Rights (“Department”), and employers may be required to disclose the number of settlements (entered into during the prior 5 years (or less)) during an investigation of a charge. Additionally, the amendment requires the Department to create a model sexual harassment prevention training program, which employers will be required to adopt (or will otherwise need to establish another training program that equals or exceeds theminimumstandards provided by the model). Moreover, restaurants and bars will be subject to additional sexual harassment prevention requirements under the amendment.
Another amendment was signed into law on August 20, 2019. This additional amendment, which becomes effective July 1, 2020, will change the definition of employer to cover any person employing at least 1 (not 15) employee(s) and to exclude places of worship.
A third amendment, enacted on August 23, 2019, adds a definition of “arrest record.” The following definition will be effective on January 1, 2020: (1) an arrest not leading to a conviction; (2) a juvenile record; or (3) criminal history record information that has been ordered expunged, sealed, or impounded. And, starting January 1, 2020, employers, employment agencies, and labor organizations may not use an arrest (not just the fact of an arrest) as a basis for one of the enumerated employment decisions or fromthe terms, privileges, or conditions of employment.
Absences and Time Off
The Organ Donor Leave Act was amended on August 1, 2019. The amendment, effective January 1, 2020, adds a prohibition on retaliation against employees for requesting or obtaining a leave of absence for donating blood, an organ, or bone marrow.
On August 23, 2019, the School Visitation Rights Act was amended, and, starting August 1, 2020, employers will be prohibited from terminating employees for an absence that is due solely to the employees’ attendance of a school conference, behavioral meeting, or academic meeting. Covered academic activities are also modified by the amendment, which adds behavioral meetings and changes classroom activities to academic meetings.
On January 31, 2019, another proposal for the Healthy Workplace Act was filed in the Senate. It would entitle both full-time and part-time employees to earn and use at least 40 hours of paid sick time during a 12-month period (or a pro rata share) for specified events. The leave could be used for events such as illnesses, injuries, or health conditions of the employee or his or her family member; seeking medical diagnosis for the employee or his or her familymember;medical appointments for the employee or his or her family member; closures related to a public health emergency; being or having a family memberwho is a victimof domestic or sexual violence; visiting a jailed or imprisoned family member; and/or attending the employee’s or his or her family member’s appointment regarding court sentencing, probation, conditional discharge, parole, or mandatory supervised release requirements, or any other civil or criminal court hearing or trial. The paid sick time would accrue at the rate of one hour for every 40 hours worked.
Employers would be prohibited from not only interfering with employees’ rights under the Act but also from disciplining any employee for using a right afforded under the Act, including consideration of paid sick time as a negative factor in an employment action, that involves hiring, terminating, evaluating, promoting, disciplining, or counting the paid sick time under a no-fault attendance policy. The bill has been passed by the Senate but has been re-referred to the Rules Committee in the House.
Amendment to Worker’s Compensation Act: On July 12, 2019, an amendment to Sections 4 and 4a of the Workers’ Compensation Act was signed into law; however, the amendment will not be effective until January 1, 2020. The amendment will allow a Commissioner (rather than the Commission) to issue a work-stop orders as to employers that knowingly fail to provide requisite coverage. And, under the amendment, such a work-stop orders may be issued ex parte if the businesses are declared extra hazardous. Penalty provisions under Section 4 will also be changed.
Proposed Prohibition on Contracts Requiring Employees to Waive, Arbitrate, or Diminish Claims/Rights/Benefits: On February 14, 2019, an amendment to the Employment Contract Act for a new section prohibiting employers from requiring, as a condition or precondition of employment, that employees or prospective employees waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit was introduced in the House. After passing the House, the bill was amended in the Senate and re-referred to the House Rules Committee on July 2, 2019.
Employees will be able to sock away some extra money into their health savings accounts next year.
The annual limit on deductible contributions to an HSA will jump by $50 for individuals and $100 for families next year, the IRS announced Tuesday.
For 2020, the annual limit on deductible contributions will be $3,550 for individuals with self-only coverage, a $50 increase from 2019, and $7,100 for family coverage, a $100 increase from 2019.
The minimum deductible for a qualifying high-deductible health plan also will increase to $1,400 for self-only coverage and $2,800 for family coverage.
HSA enrollment continues to grow, especially as employees look at the accounts as a way to save for medical expenses in retirement. The number of HSAs grew 13% over the past year to top 25 million, according to research firm Devenir, while assets grew 19% to $53.8 billion. Devenir projects the number of HSAs to hit 30 million by 2020, with $75 billion in total assets and $16.7 billion in investment assets.
More employers are also offering employees contributions to their accounts. Indeed, the average HSA employer contribution rose to $839 last year, up 39% from $604 in 2017, according to Devenir. All told, employer contributions totaled almost $9 billion last year.
HSAs also saw a boon this year with Amazon’s decision to allow consumers to use the accounts to buy thousands of items on its site, a move that was ballyhooed as a positive for HSA customers, as well as Amazon. Items will be listed on Amazon as “FSA or HSA eligible” on the individual product pages, a full list of items can also be browsed on Amazon’s website.
“By accepting HSA dollars, Amazon is finally giving this untapped savings tool its moment to shine,” David Vivero, co-founder and CEO at Amino, an employee financial wellness platform, wrote recently in an Employee Benefit News blog. “Every payment method or currency — whether its dollars, airline miles, bitcoins or credit cards — depends on reliable large-scale merchant acceptance to become truly mainstream.”
by Charles N. Insler
The Biometric Information Privacy Act (BIPA) establishes safeguards and procedures relating to the retention, collection, disclosure, and destruction of biometric data. Passed in October 2008, BIPA is intended to protect a person’s unique biological traits – the data encompassed in a person’s fingerprint, voice print, retinal scan, or facial geometry. This information is the most sensitive data belonging to an individual. Unlike a PIN code or a social security number, once biometric data is compromised, “the individual has no recourse, is at [a] heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.” 740 ILCS 14/5(c). For this reason, BIPA provides a private right of action for “[a]ny person aggrieved by a violation of this Act . . . .” 740 ILCS 14/20.
The question facing Illinois courts had been how best to interpret the meaning of “aggrieved.” Was an individual aggrieved if the defendant violated the statute or did the individual need to have sustained “some actual injury or harm, apart from the statutory violation itself, in order to sue under the Act[?]” Rosenbach v. Six Flags Entm't Corp., 2019 IL 123186, ¶23. Illinois’s appellate courts had reached conflicting decisions on this question, with the First District holding that a bare statutory violation was sufficient to confer standing under BIPA, Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, ¶77, and the Second District holding that BIPA required a person aggrieved by a violation of the Act to allege an actual harm and not simply a technical violation. Rosenbach v. Six Flags Entm't Corp., 2017 IL App (2d) 170317, ¶28.
On January 25, 2019, the Illinois Supreme Court resolved this split and held that a person is aggrieved in the legal sense “when a legal right is invaded by the act complained of . . . .” Rosenbach, 2019 IL 123186, ¶30. In other words, the “violation [of the statute], in itself, is sufficient to support the individual’s or customer’s statutory cause of action.” Id., at ¶33 (emphasis added). The underlying goals of BIPA supported this result. Id. at ¶¶24-37. If the purpose of BIPA was to safeguard biometric identifiers and information before the data was compromised, then individuals must be permitted to enforce those protective rights as soon as they became aware of a defendant’s failure to properly protect their biometric data. See id. at ¶37. To hold otherwise and require “individuals to wait until they have sustained some compensable injury beyond violation of their statutory rights . . . would be completely antithetical to the Act’s preventative and deterrent purposes.” Id.
The Supreme Court’s ruling is likely to further embolden lawsuits asserting bare violations of the statute and have an immediate impact on businesses in Illinois. After all, even a “technical” violation of the statute produces a “real and significant” injury. Id. at ¶34. The effect of the law is already being seen beyond the courtroom. BIPA is believed to be behind Nest’s decision not to offer facial recognition on doorbells operating in Illinois and Google’s decision not to allow Illinois users to matched their selfies with faces depicted in works of art. Ally Marotti, Illinois Supreme Court Rules Against Six Flags in Lawsuit Over Fingerprint Scans. Here’s Why Facebook and Google Care, Chicago Tribune (Jan. 25, 2019). Companies in Illinois may want to hold on: after the Six Flags decision they could be in for a wild ride.
More information about BIPA and the cases interpreting the statute can be found here.
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