Looking back on the past year and ahead to the new one, Illinois employers may want to reflect on the ways in which state legislators and regulators kept busy in 2022.
A number of employment laws will take effect on January 1, 2023, and other recent legislative changes have spawned new regulations, too.
Protection for Protective Hair
In keeping with a recent legislative trend, a prohibition on hair-based discrimination will be added to the Illinois Human Rights Act, which covers virtually all Illinois employers. The Create a Respectful and Open Workplace for Natural Hair (CROWN) Act expands the Human Rights Act’s definition of “race” to include traits historically associated with race, such as hair texture and protective hairstyles like twists, locks, and braids. The change has the effect of banning hairstyle discrimination in employment, housing, financial services, and public accommodations. Illinois Governor JB Pritzker signed the CROWN Act into law on June 29, 2022, and it takes effect on January 1, 2023.
Expanded Bereavement Leave
New Year’s Day brings a new name and new employee benefits to an existing Illinois law. As we previously explained here, the Child Bereavement Act will henceforth be referred to as the Family Bereavement Leave Act. Applicable to Illinois employers also covered by the federal Family and Medical Leave Act (FMLA)—that is, with 50 or more employees within a 75-mile radius—the Family Bereavement Leave Act will require employers to provide a maximum of 10 workdays of leave for a range of permitted reasons, including, but not limited to, the death of a covered family member, a stillbirth or miscarriage, a failed adoption, or unsuccessful assistive reproductive technology. Employee eligibility for this unpaid leave is the same as under the FMLA, meaning that an employee must have at least one year of employment with a covered employer, with at least 1,250 hours of service in the prior 12 months.
Employers are not required to ask for documentation when an employee requests such leave but are permitted to do so. The Illinois Department of Labor (IDOL) has published this form, which an employer can require employees to complete and submit as supporting documentation to verify that they experienced an event that qualifies them for family bereavement leave under the new law. The expanded leave entitlements take effect on January 1, 2023.
New VESSA Rules
As previously discussed here, amendments to the Illinois Victims’ Economic Security and Safety Act (VESSA) went into effect on January 1, 2022, expanding protected “crimes of violence” and individuals to whom those protections apply. Applicable to any Illinois employer with one or more employees, the amendments permit up to 12 weeks of unpaid leave for VESSA-qualifying protection, including gender violence and “any other crime of violence” in addition to domestic and sexual violence. The amendments also expanded protection for “family members” who are victims of relevant crimes of violence beyond a spouse, parent, son, daughter, blood relative, or relative by marriage to include a party to a civil union, grandparents, grandchildren, siblings, or other family-like relationships. The law’s expanded definition of “family or household member” is broad and explicitly includes any “individual whose close association with the employee is the equivalent of a family relationship as determined by the employee . . . .”
Subsequent amended regulations governing a complaint process and administrative proceedings under VESSA became effective on November 2, 2022. Changes to the regulations include specifications that (i) VESSA is applicable to all individuals, regardless of gender, and (ii) protection under VESSA applies to victims of all crimes of violence, including gender violence. The amended regulations clarify the IDOL’s investigative authority beyond simply assisting affected persons with a claim and confirm that the leave afforded by VESSA to qualified individuals is job-protected. As amended, the regulations also require employers to provide reasonable accommodations in a timely manner to victims or family members of victims, and permit employers to request sworn statements or other supporting documentation from individuals requesting leave, if such documentation is available.
Non-Competes for Nurses Nixed
As discussed in the 2022 update to our annual guide to non-compete law in Illinois (published by Thomson Reuters Practical Law), a bill amending the laws governing nursing agency licensing and prohibiting nursing agencies from entering into covenants not to compete with nurses and certified nurse aides (CNAs) went into effect on July 1, 2022. The law specifically forbids a nursing agency to require any liquidated damages or fees, including conversion, placement, or buy-out fees, if an agency nurse or CNA is hired away from the agency as a permanent employee. It also prohibits agencies from recruiting potential employees on the premises of a health care facility.
In addition to rendering null and void any non-compete agreement between a nursing agency and a nurse or CNA entered into after July 1, 2022, the law now provides a civil penalty “of $10,000 per occurrence” for any violation of its provisions, and further provides that “[t]he fact that the violation has ceased does not excuse any person from liability for civil penalties arising from the violation.”
Further, the law as of July 1, 2022, specifies that contracts between agencies and health care facilities must expressly include:
- full disclosure of all compensation charges, including a schedule of all hourly billing rates and charges, including, but not limited to, regular rates, shift differentials, hazard pay, holiday pay, and travel pay;
- a commitment that agency nurses and CNAs assigned to a health care facility will perform all duties within their scope of practice; and
- a statement that 100 percent of the stated rate will be paid to the employee.
The statute expressly provides that a party’s failure to include these elements in a contract “shall be a defense to the enforcement of a contract” between a health care facility and a nursing agency. Moreover, a nurse staffing agency found to not have paid a nurse or CNA 100 percent of the hourly wage stated in a contract between the agency and a health care facility is liable to that employee for both the actual amount of the underpayment plus damages in the amount of five percent of the amount of the underpayment.
Shifts in Illinois Wage and Hour Law
One Day of Rest in Seven
A bill enacted in May 2022 takes effect on January 1, 2023, amending the state’s One Day Rest in Seven Act (ODRISA) by increasing penalties for employers that violate the law, requiring non-exempt employees to have specified meal periods and at least 24 hours of consecutive rest during every consecutive seven-day period. Previously, the law stated that such 24-hour rest period was mandatory once every calendar week. The amended law also provides that employees who work more than 7.5 continuous hours are entitled to an additional 20-minute meal period for every additional 4.5 continuous hours worked, in addition to the existing 20-minute meal period beginning no later than five hours after the start of the work period. Further, the amendments forbid employers from including “reasonable time spent using the restroom facilities” as part of a mandatory meal period.
Further amendments to the law expand the definition of violations from a “petty offense” to a civil one and significantly increase penalties. Whereas ODRISA previously provided for fines ranging from $25 to $100 per offense, as of January 1, 2023, employers with fewer than 25 employees may be subject to civil penalties of up to $250 per offense plus damages of up to $250 per offense, payable to affected employees. Larger employers will be subject to double the expense, with penalties and damages of up to $500 each per offense. The amended law specifies that “each week that an employee is found to not have been allowed 24 consecutive hours of rest . . . shall constitute a separate offense.” Additionally, “each day that an employee is found not to have been provided a meal period . . . shall constitute a separate offense.”
Finally, as amended, the law obliges employers to notify employees about ODRISA’s provisions with posters and electronic communications. Failure to do so “shall constitute a single offense, and is subject to a civil penalty not to exceed $250 . . . .” The state Director of Labor is vested with authority to enforce ODRISA, which does not contain a private right of action.
On January 1, 2023, a statutory increase to the Illinois minimum wage will bring the minimum hourly rate to $13 statewide, or $7.80 per hour for tipped workers. However, in Cook County, the minimum wage ordinance provides a minimum wage rate of $13.35, which has been in effect since January 1, 2022, and continues into 2023. As of July 1, 2022, the minimum wage in Chicago increased to $15.40 per hour for large employers with 21 or more workers, and $14.50 per hour for smaller employers with four to 20 workers. Chicago tipped workers also saw an increase in the minimum wage to $8.70 for small employers with four to 20 workers and $9.24 for large employers with 21 or more workers. Chicago’s Minimum Wage Ordinance applies to any employee who works more than two hours in any two-week period in Chicago for an employer. Employers in Cook County can use this poster to comply with 2023 notice requirements. IDOL has not yet published a revised poster for the new year, but employers should continue to monitor this website for updates.
Proposed Changes to Illinois Wage Payment and Collection Act Rules
On July 1, 2022, amendments to the Illinois Wage Payment and Collection Act (IWPCA) that increased general contractors’ liability for subcontractors’ wages and benefits went into effect. Subsequent proposed regulations published on November 18, 2022, would implement the allowable penalty assessment from two percent to five percent of amounts owed and clarify when an employee may be entitled to reimbursement for necessary employment-related expenditures.
The proposed amended regulations provide that an employee is entitled to expense reimbursement when the expense is made for the “primary benefit” of the employer. If an employer declines to reimburse an employee, the proposed regulations authorize the affected employee to file a claim against the employer with the IDOL seeking reimbursement for expenses. The draft regulations further specify that if an employee is unable to recover expenses during the course of their employment, those expenses must be included in final compensation owed to the employee at the end of their employment, in accordance with IWPCA.
If the draft regulations are approved, employers will also be required to maintain expense reimbursement policies and records for a minimum of three years. Finally, as drafted, the amended regulations establish a process of making payments to the Office of the Treasurer as unclaimed property when an employee who cannot be located is owed wages.
Interested persons may submit written comments about the proposed amendments until the public comment period closes on January 2, 2023. The Illinois rulemaking process takes at least 90 days to complete, but may take longer, depending, in part, on the nature and volume of public comments received. We will advise further when updates to these regulations are finalized.
What Illinois Employers Should Do Now
If employers have not made the necessary adjustments to comply with these new laws and regulations by now, they should make haste to do so. Specifically, Illinois employers should act to:
- revise policies to comply with applicable local and state laws;
- assess scheduling and meal policies to ensure that they comport with the new requirements under ODRISA;
- update workplace signage, including electronic communications and employee handbooks, to include information regarding VESSA, applicable minimum wage laws, and newly mandated notifications related to ODRISA;
- implement new processes and practices to mirror new recordkeeping requirements;
- conduct trainings with human resources personnel, managers, and staff to ensure they understand the applicable local and state laws; and
- continue to monitor the IDOL’s website for updates throughout the year.