On November 5, 2021, OSHA released a previously announced Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to enact a policy requiring employees to be vaccinated against COVID‑19 or submit to weekly testing. Employers are required to have a policy in place by December 5, 2021, with enforcement of the ETS to begin on January 4, 2022.

On November 6, 2021, the Fifth Circuit Court of Appeals for the United States temporarily blocked the mandatory vaccine and testing requirements, citing “grave statutory and constitutional issues.” That ruling was reaffirmed on November 12, 2021, when the Fifth Circuit issued a nationwide preliminary injunction, suspending enforcement of the ETS. However, with multiple cases pending across the nation, the judicial panel on multidistrict litigation held a multi-circuit lottery, and the Sixth Circuit Court of Appeals, which is based in Cincinnati, Ohio, was selected to handle a consolidated appeal. It is unlikely, however, that the Sixth Circuit will have the final say on the fate of the ETS. We anticipate that the matter will ultimately be decided by the U.S. Supreme Court.

What should employers do now?

Given the timetable for employer action, coupled with the ever-evolving legal battles faced by the ETS, many employers are asking what companies should do under these circumstances. While hoping to avoid enforcement and penalties from OSHA, these same companies are concerned about losing members of the workforce to the mandate. While there remains a great deal of uncertainty surrounding the ETS, there are steps employers can take in the interim.

The primary step an employer can take is developing a policy that complies with the requirements of the ETS. Pursuant to the ETS, employers are required to implement such policies by December 5, 2021. While that deadline may be delayed due to legal challenges, there is no certainty that will happen. Accordingly, we recommend that employers develop their policy and have it ready for implementation pending further actions from the courts. A policy that complies with the ETS must, at a minimum, include the following:

• Employer policy on vaccination: The ETS requires employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement and enforce a policy allowing employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face coving at the workplace.
• Determination of employee vaccination status: The ETS requires employers to determine the vaccination status of each employee, obtain an acceptable proof of vaccination, maintain records of each employee’s vaccination status and maintain a roster of each employee’s vaccination status.
• Employer’s support for full vaccination: The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and a reasonable time and paid sick leave to recover from side effects following each dose.
• COVID-19 testing for employees who are not fully vaccinated: Unless an employer decides on a policy requiring mandatory vaccination, the ETS requires each employer to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly. While the ETS does not require employers to pay for any costs associated with testing, an employer may be required under federal, state and local laws, regulations or collective bargaining agreements to pay.

Employers with employees subject to collective bargaining agreements are required to comply with the ETS.

If you have questions, please contact Dennis Collins or any member of our  Employment & Labor Practice Group.

In August 2021, Illinois Gov. J.B. Pritzker signed into law amendments to the Illinois Freedom to Work Act that will dramatically change the use of non-compete and non-solicitation agreements by Illinois employers. These amendments become effective January 1, 2022, and apply only to agreements entered into after that date.

As noted in our previous blog post about the Freedom to Work Act, among the significant changes included in these amendments are earnings requirements. Beginning January 1, 2022, an employer cannot enter into a non-compete agreement with an employee whose annualized rate of earnings is less than $75,000 per year. That amount increases to $80,000 on January 1, 2027; to $85,000 on January 1, 2032; and to $90,000 on January 1, 2037. 

Similarly, an employer cannot enter into a non-solicitation agreement with an employee whose annualized rate of earnings is less than $45,000 per year. That amount increases to $47,500 on January 1, 2027; to $50,000 on January 1, 2032; and to $52,500 on January 1, 2037. Non-compete and non-solicitation agreements that do not comply with these requirements are void and unenforceable.

The amendments also create questions regarding whether an employee receives “adequate consideration” in exchange for the employee’s covenants. The amendments define “adequate consideration” as employment for at least two years after the agreement is signed or other “consideration adequate to support an agreement not to compete or to not solicit,” which may consist of a period of employment plus financial benefit to the employee or financial benefits by themselves.

Employers also must provide employees with proper notice and time to consider whether to enter into a non-compete or non-solicitation agreement. In order for a non-compete/non-solicitation agreement to be valid, the employer must advise the employee in writing to consult with an attorney before entering into the agreement and must provide the employee at least 14 calendar days to review the agreement (the employee need not wait the full 14 days before signing).

The amendments also contain restrictions on covenants not to compete or not to solicit entered into as part of a severance package where an employee is terminated or laid off as a result of business circumstances or governmental order related to the COVID-19 pandemic or similar circumstances. In such a case, a non-compete or non-solicitation agreement is void and unenforceable unless the employer provides the employee compensation equivalent to the employee’s base salary (less any compensation earned through subsequent employment) for the restricted period.

The amendments expressly prohibit non-compete or non-solicitation agreements involving employees subject to collective bargaining agreements covered by the Illinois Public Labor Relations Act or the Illinois Labor Relations Act. In addition, agreements involving employees in the construction industry are similarly void and unenforceable unless the employee primarily performs management, engineering, architectural, design or sales functions or are shareholders, partners or owners of the company.

Courts will retain their power to rewrite or reform overly broad restrictive covenants; however, the amendments also provide that extensive revision may be contrary to public policy, in which case a court may declare the agreement void and unenforceable.

Also important for employers to consider: The amendments impose consequences for employers who impose and enforce overly broad agreements. The amendments create a private right of action by an employee against an employer if the employee prevails in an attempt to enforce a covenant not to compete or solicit. Among the remedies available to the employee is the right to recover costs and attorneys’ fees in defending such an attempt. In addition, the amendments provide that the Illinois Attorney General’s Office may initiate or intervene where it appears an employer has engaged in a pattern and practice of violating the Freedom to Work Act and may seek, among other remedies, civil penalties against the employer.

It is important to note that the term “covenant not to compete” does not include confidentiality agreements, agreements not to disclose trade secrets, or invention assignment agreements. The amendments also do not apply to covenants or agreements entered into as part of the purchase or sale of a business (or its goodwill), or an agreement pertaining to the acquisition or disposition of an ownership interest.

Illinois employers who regularly use or require their employees to enter into non-compete or non-solicitation agreements should become aware of these amendments and plan now to adjust their use of these agreements to ensure compliance with the amendments.

If you have questions or would like to discuss how the amendments to the Freedom to Work Act will affect your business, please contact Chris Bailey at (314) 345-4727 or tcb@greensfelder.com or one of the other attorneys in Greensfelder’s Employment & Labor Practice Group.

The Chicago City Council recently passed Ordinance No. 02021-2182 (the Ordinance), which, among other things, expands the permissible bases to take leave under the Chicago Paid Sick Leave Ordinance (PSLO) and creates new wage theft protections for employees. The paid sick leave amendments take effect on August 1, 2021, while the wage theft provisions went into effect on July 5, 2021.

New Paid Secured Leave Under the PSLO Effective August 1, 2021

Under the PSLO, any covered employee who works at least 80 hours for an employer within any 120-day period is eligible for paid sick leave. A “covered employee” is defined as an employee who in any particular two-week period performs at least two hours of work for an employer while physically present within the geographic boundaries of Chicago.

Under the Ordinance, paid “sick leave” is renamed to be “paid secure leave,” and other permissible bases have been added for covered employees to use paid secured leave. The Ordinance defines paid secured leave as “time provided by an employer to a covered employee that is eligible to be used [for the reasons below], and is compensated at the same rate and with the same benefits, including health care benefits, that the covered employee regularly earns during hours worked.”

The chart below identifies the prior bases under the PSLO under which a covered employee was permitted to use paid leave, and effective, August 1, 2021, the new, additional bases (in bold) a covered employee can use paid secure leave:

Chicago employers should review their handbooks to amend their paid sick leave policies to include the new additional bases for leave.

Wage Theft Protections for Covered Employees Effective July 5, 2021

The Ordinance also provides a “covered employee” (defined the same as above) with protections against wage theft from their employers. Under the Ordinance, any employer that does not timely pay a “covered employee” in accordance with the Illinois Wage Payment and Collection Act (IWPCA) commits “wage theft.” The Ordinance defines “wage theft” to include the non-payment of: (a) any wages required for work performed; (b) paid time off, whether legislatively or contractually required; and (c) contractually required benefits to a covered employee. The IWPCA generally mandates that an employer must pay its employees all earned wages no less than twice per month and must pay separated employees all final compensation no later than the next regularly scheduled payday.

Under the Ordinance, if covered employees believe their employers have committed wage theft, they may now file a wage theft claim with the Office of Labor Standards or in court, but not both. A covered employee who files a wage theft claim with the Illinois Department of Labor (IDOL) may not also file a claim with the Office of Labor Standards, unless the IDOL referred the case to the Office of Labor Standards.

If it is determined that an employer has violated the Ordinance, the employer is liable for the amount of the underpayment and either: (a) 2 percent of the amount of any underpayments for each month following the date of payment during which the underpayments remain unpaid; or (b) the amount specified by the IWPCA, if the amount in the IWPCA is greater. Importantly, the penalty amount specified in the IWPCA for violations recently was increased from 2 percent, to 5 percent per month for underpayments, so the IWPCA rate will apply.

Chicago employers should take these new wage theft protections seriously, as on July 29, 2021, Mayor Lightfoot issued a press release applauding the city’s efforts in recouping $935,000 from two employers for PSLO violations.

President Biden is committed to promoting labor organizing in an effort to strengthen union organizing after years of declining membership. In 2020, 10.8 percent of employees, including governmental employees, belonged to a union. In the 1950s, the total union membership exceeded 30 percent, including governmental employees. In 2020, the union membership in the private sector was 6.3 percent, whereas in 1983, the unions represented 23 percent of the employees in the private sector.

On April 26, 2021, President Biden signed an executive order that created the Task Force on Worker Organizing and Empowerment. The order directs the task force to analyze ways of establishing government policies to encourage employees to organize and to then successfully obtain collective bargaining agreements with employers. We can anticipate a significant push by this task force in recommending to the president the establishment of executive orders that do not require congressional support. The task force met with organized labor for their recommendations, and it is anticipated executive orders will establish new standards for employers that have federal contracts. The task force is to submit final recommendations to President Biden on October 23, 2021. If pending infrastructure legislation is enacted, there will be a focus upon providing employment opportunities to unionized federal contractors, including an expected focus on minority contractors.

The task force is co-chaired by Vice President Kamala Harris and Labor Secretary Marty Walsh. On March 23, 2021, Walsh was sworn in as the 29^th Secretary of Labor. He has served stints as a Massachusetts state representative and Boston mayor. In addition, he previously served as a board member of Laborers’ Local 231, the Building & Construction Trade Council and as a member of Teamsters Local 177.

Employers should anticipate that the Biden administration will leverage federal purchasing to send to unionized employers and other organizations that promote employee rights. While the Biden administration and labor leaders will push hard for favorable legislation, we can expect there will be litigation by employer organizations on extreme mandates that endeavor to force the use of unionized federal contractors. Employer arguments center, in part, upon the National Labor Relations Act, which provides employees with the right to join a union, as well as the corresponding right to refuse to join a union.

Employer-led organizations have in the past been successful in addressing these issues in the courts and before the NLRB. In addition, while the House recently approved the Protecting the Right to Organize Act (PRO), it lacks the support of the Republican senators as well as some Democrat senators. This is significant since the PRO, if passed, would prohibit employers from conducting anti-union mandatory meetings on company time, fine employers who break the law, and require arbitration to secure collective bargaining agreements between employers and unions.

The Amazon Election    

In addressing the efforts to organize Amazon employees in Bessemer, Alabama, President Biden sent a video message that encouraged employees at Amazon to vote for the union. Bessemer is home to 27,000 residents, the large majority of whom are Black. Amazon established a warehouse of operations that paid employees $15 per hour, including affordable medical, dental and vision. The union’s focus was upon working conditions. 1,798 employees voted against joining the Retail, Wholesale and Department Store Union. 738 voted for union representation. 505 collected ballots remain unopened, since these votes would not reverse the outcome of the election.

Following the election, the union filed 23 objections with one of the regional directors of the NLRB, including a claim that Amazon tried to intimidate employees during the election process. For example, it was reported that an Amazon security guard used keys to open a mailbox that was set up for employees to submit mail-in ballots. The union claims that this installation of the mailbox on the warehouse property led employees to believe that Amazon would play a role in collecting and counting votes. The union is also maintaining at least two union supporters were terminated by Amazon for supporting the union. Briefs were submitted by Amazon and the union in June 2021, and the matter is pending before one of the regional directors of the NLRB.

While a regional director of NLRB could order a rerun of the election based upon the conduct of Amazon, it appears unlikely the union would prevail in any rerun due to the landslide vote in favor of Amazon. There is also the possibility of an order by the NLRB to require Amazon to engage in mandatory collective bargaining with the union; however, this is remote in light of Amazon’s landslide victory in the election.

If you have questions, please contact Dennis G. Collins at (314) 516-2648 or dgc@greensfelder.com, or any member of our Labor and Employment Practice Group.  

The Illinois House and Senate have agreed on a version of the Illinois Freedom to Work Act, which is waiting for Governor Pritzker to sign into law. The Act puts restrictions on which employees can be subject to covenants not to compete and covenants not to solicit.

Under the Act, an employer cannot enter into a covenant not to compete with an employee unless that employee’s actual or expected earnings exceed a certain level. Initially, the employee’s annualized rate of earnings must exceed $75,000 per year. However, that amount increases to $80,000 on January 1, 2027, to $85,000 on January 1, 2032, and to $90,000 on January 1, 2037.

Similarly, an employer cannot enter into a covenant not to solicit with an employee unless that employee’s actual or expected annualized rate of earnings exceeds $45,000 per year. That amount increases to $47,500 on January 1, 2027, to $50,000 on January 1, 2032, and to $52,500 on January 1, 2037.

With regard to severance agreements, the Act prohibits an employer from entering into a covenant not to compete or covenant not to solicit with an employee who is terminated, furloughed or laid off as a result of business circumstances or governmental orders related to or similar to the COVID-19 pandemic. However, this prohibition is waived if the employer pays the employee compensation that is equivalent to the employee’s base salary at the time of separation for the period of enforcement minus any compensation the employee earns from subsequent employment during the same period.

If an employee is covered by a collective bargaining agreement under the Illinois Public Labor Relations Act or the Illinois Labor Relations Act, a covenant not to compete is void and illegal. Similarly, a covenant not to compete is void if the individual is employed in construction, unless that person primarily performs management, engineering, architectural, design or sales functions or are shareholders, partners or owners.

In order for a covenant not to compete and covenant not to solicit to be valid, the employer cannot just provide the employee with an agreement to sign that contains the restriction. Employers will have to: (1) advise the employee in writing to consult with an attorney before entering into any agreement containing a restrictive covenant; and (2) the employer must provide the employee with a copy of the restrictive covenant at least 14 days before the commencement of the employee’s employment.

The Act also allows the employee to recover attorney’s fees in any civil action or arbitration that is filed by an employer if the employee is the prevailing party. In addition, if the Attorney General of Illinois believes that a person or employer is engaged in a pattern and practice prohibited by the Act, the Attorney General may initiate or intervene in a civil action to obtain appropriate relief.

The Act also codified what has been set forth in Illinois case law regarding restrictive covenants. While traditionally Illinois courts have had the ability to rewrite an overly broad restrictive covenant, the Act recognizes that a court may choose not to rewrite an overly broad restriction. The Act suggests that a court consider the following factors before deciding whether to rewrite an overly broad covenant: (1) the fairness of the restriction as originally written, (2) whether the original restriction reflects a good-faith effort to protect a legitimate business interest of the employer, (3) the extent of the reformation and (4) whether the parties included a clause authorizing modifications to their agreement. In addition, the Act provides guidance on the factors to consider in determining an employer’s legitimate business and what constitutes adequate consideration to support a restrictive covenant.

Importantly, the Act does not become effective until January 1, 2022. As a result, employers have some time to think about how the Act will affect their business starting in 2022 and will have some time to enter into restrictive covenants with employees before 2022 that will be prohibited under the Act. I will write more about that in a future post.

If you have questions or would like to discuss how the Act will affect your business, please contact Thad Felton at (312) 345-5023 or taf@greensfelder.com.

A new Ordinance in the city of Chicago will prohibit Chicago employers from firing or disciplining workers who leave work to get a COVID-19 vaccine during the workers’ normally scheduled work hours. The Chicago City Council unanimously approved the Ordinance on April 21, 2021, and the Ordinance goes into effect immediately.

Who does this affect?

Essentially, the Ordinance applies to all employers and workers in the city of Chicago, including non-employees who are independent contractors and performing services for a company in Chicago. Under the Ordinance, an “employer” means “any natural individual, firm, trust, partnership, association, joint venture, corporation or other legal entity who engages the services of at least one individual for payment.”  The Ordinance defines “worker” as “an individual that performs work for an Employer, including as an employee or as an independent contractor.”

What are the new rules?

Under the Ordinance, regardless of whether the COVID-19 vaccine is voluntarily sought or required by the employer, an employer cannot require that the worker get the vaccine only during the worker’s non-scheduled work hours.  And, if a worker does take time off during the worker’s normally scheduled work hours to get the COVID-19 vaccine, an employer cannot take any adverse action (e.g. discipline or terminate) against a worker for doing so.

Under the Ordinance, if a worker has company-provided paid sick leave and/or other company-provided paid time off accrued or otherwise available, and the worker specifically requests to use that time to get the vaccine, the employer must allow the worker to use the paid leave for that purpose.  

However, if the employer requires that workers get the COVID-19 vaccine, the employer must pay workers for the time, up to four hours per dose, it takes the worker to get the vaccine, at the worker’s regular rate of pay, but only if the vaccine appointment is during the individual’s normally scheduled work hours.  And, if the employer does mandate that workers get the COVID-19 vaccine, the employer cannot require that workers use company-provided paid time off and/or paid sick leave (e.g. under the Chicago Paid Sick Leave Ordinance) for the time off needed to get the vaccine.

An employer that takes an adverse action, such as discipline or termination, against a worker who leaves work during the employee’s normally scheduled work hours to get the vaccine will be deemed to have engaged in retaliation against the worker. It is unclear at this time what, if any, advance notice the worker must provide the employer.

What is the penalty to employers for violation?

An employer who violates the Ordinance is liable for a fine between $1,000 and $5,000 per offense. The Chicago Commissioner of Business Affairs and Consumer Protection or the Director of Labor Standards are vested with authority to take action against the employer by instituting an action in administrative hearings or requesting Chicago Corporation Counsel to take action in court against the employer. In addition to the fine, if the employer fired the worker, the worker is entitled to reinstatement to the same or an equivalent position, damages equal to three times the amount of wages lost, as well as any actual damages incurred, and costs and attorneys’ fees.

If you are an employer and have questions about how these changes affect you, please contact an attorney in Greensfelder’s Employment & Labor Practice Group.

On March 23, 2021, Illinois Gov. J.B. Pritzker signed into law Senate Bill 1480, the Employee Background Fairness Act. This impacts certain Illinois employers because it imposes new reporting and registration requirements concerning employee demographics and pay under the Illinois Business Corporation Act (IBCA) and the Illinois Equal Pay Act (IEPA), and creates new whistleblower anti-retaliation protections under the IEPA. The amendments take effect immediately.

The Illinois Business Corporation Act

SB 1480 amends the IBCA to impose new requirements for domestic and foreign corporations that are organized under Illinois law and are required to file an Employer Information Report EEO-1 (EEO-1) with the Equal Employment Opportunity Commission (EEOC).

The EEO-1 is a report filed with the EEOC and requires that employers report on the racial/ethnic and gender composition of their workforce by specific job categories. All employers that have 100 or more employees are required to file an EEO-1 report annually with EEOC, or if they are covered by Title VII of the Civil Rights Act (i.e. 15 or more employees) and have fewer than 100 employees but are owned by or affiliated with another company and together they have 100 or more employees. Lower thresholds apply to federal contractors. Federal contractors must file EEO-1 repots if they have:

1. 50 or more employees; and
2. are prime or first-tier contractors (which means they contract directly with the federal government); and
3. have a contract, subcontract, or purchase order amounting to $50,000 or more; or
4. serve as a depository of government funds in any amount, or are a financial institution that is an issuing and paying agent for U.S. savings bonds and notes.

Beginning January 1, 2023, all such applicable employers must include in their annual reports to the state of Illinois information that is substantially similar to the employment data reported under Section D of the corporation’s EEO-1 report (i.e. gender, race, and ethnicity of the corporation’s employees). The Illinois Secretary of State will then publish the gender, race, and ethnicity data of each corporation’s employees on the Secretary of State’s website.

The Illinois Equal Pay Act

SB 1480 amends the IEPA to require private businesses with more than 100 employees in the state of Illinois to obtain an “equal pay registration certificate.” Existing businesses must obtain certificates within three years after the effective date of SB 1480 (i.e. March 23, 2024), while new businesses must obtain certificates within three years after commencing operations. Recertification is required every two years thereafter.

To apply for the equal pay registration certificate, the applicable business must pay a $150 filing fee, submit an equal pay compliance statement to the director of the Illinois Department of Labor, submit a copy of the employer’s most recent EEO-1 report (if subject to EEO-1 reporting requirements) for each county in which the business has a facility or employees, and provide the total wages (as defined by Section 2 of the Illinois Wage Payment and Collection Act) paid to each employee during the prior calendar year separated by gender, race, and ethnicity. The director will issue the equal pay registration certificate to a business that submits a statement signed by a corporate officer, legal counsel or authorized agent of the business certifying that:

1. The business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the IHRA, the Equal Wage Act and the IEPA;
2. The average compensation for its female and minority employee is not consistently below the average compensation for its male and non-minority employees within each of the major job categories in the employer’s EEO-1 report, taking into account factors such as length of service, requirements of specific jobs, experience, skill set, effort, responsibility, working conditions of the job, or other mitigating factors;
3. The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
4. Wage and benefit disparities are corrected when identified to ensure compliance with the acts referenced in subparagraphs (a) and with subparagraph (b) above; and
5. Wages and benefits are evaluated to ensure compliance with the acts referenced in subparagraphs (a) and with subparagraph (b) above.

The employer must also indicate on its equal pay registration certificate whether, in setting compensation and benefits, the employer uses:

1. a market pricing approach;
2. state prevailing wage or union contract requirements;
3. a performance pay system;
4. an internal analysis; or
5. an alternative approach to determine what level of wages and benefits to pay its employees and it must describe this approach.

An employer who does not obtain an equal pay registration certificate or whose certificate is suspended or revoked after an IDOL investigation is subject to a mandatory civil penalty equal to 1 percent of “gross profits.” And, even if the IDOL issues a registration certificate to the employer, this does not constitute a defense against any IEPA violation found by the IDOL, or a basis to mitigate damages.

Whistleblower Anti-Retaliation Protections Under the IEPA

SB1480 also amends the IEPA to prohibit a business from taking any “retaliatory action” against an employee based on certain protected conduct. “Retaliatory action” means the reprimand, discharge, suspension, demotion, denial of a promotion or transfer, or change in the terms and conditions of employment of any employee of a business taken in retaliation for the employee’s involvement in the following protected activity:

1. Discloses or threatens to disclose to a supervisor or to a public body an activity, inaction, policy or practice implemented by the business that the employee reasonably believes is in violation of a law, rule, or regulation;
2. Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule or regulation by a nursing home administrator; or
3. Assists or participates in a proceeding to enforce the provisions of the IEPA.

In addition to having to engage in protected activity, an employee claiming retaliation must also establish that the alleged protected activity was a “contributing factor” in the alleged retaliatory action. The employer has a defense to any such claim if it demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action even if the employee did not engage in the alleged protected activity. A prevailing employee may be awarded reinstatement, double back-pay with interest and reasonable costs and attorneys’ fees.

If you have questions about how these changes affect you, please contact an attorney in our Employment & Labor Practice Group.

On March 23, 2021, Illinois Gov. J.B. Pritzker signed into law Senate Bill 1480, the Employee Background Fairness Act. This impacts Illinois employers because it imposes new obligations under the Illinois Human Rights Act (IHRA) on the way they can use criminal convictions to assess employment eligibility for applicants and current employees. It also imposes new reporting and registration requirements concerning employee demographics under the Illinois Business Corporation Act (IBCA) and the Illinois Equal Pay Act (IEPA) and creates new whistleblower anti-retaliation protections under the IEPA.

The amendments take effect immediately. This blog post will focus on the amendments to the IHRA, and a subsequent blog post will focus on the amendment to the IBCA and the IEPA.

IHRA Amendments

The IHRA is amended to make it a civil rights violation for an employer, employment agency or labor organization (collectively “employer”) to use a conviction record as a basis to refuse to hire, to segregate or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment, subject to the exception below. “Conviction record” is defined as “information indicating that a person has been convicted of a felony, misdemeanor, or other criminal offence, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.”  

An employer is permitted to deny employment or take an adverse action based on an individual’s conviction record if there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. The IHRA defines “substantial relationship” to mean “a consideration of whether the employment positon offers the opportunity for the same or similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in position sought or held.”

To determine whether a “substantial relationship” exists, the amendments to the IHRA require employers to consider the following factors in evaluating the “substantial relationship” or risk to property or safety factors noted above:

1. the length of time since the conviction;
2. the number of convictions that appear on the conviction record;
3. the nature and severity of the conviction and its relationship to the safety and security of others;
4. the facts or circumstances surrounding the conviction;
5. the age of the employee at the time of the conviction; and
6. evidence of rehabilitation efforts.

The amendments to the IHRA require employers to engage in an “interactive assessment” for disqualifying an applicant or employee. Specifically, the IHRA provides that after considering the above factors, if the employer initially believes that the individual’s conviction record disqualifies the person from the position sought or currently held, the employer is required to notify the individual of this preliminary decision in writing.

The written notification must contain:

1. notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
2. a copy of the conviction history report; if any; and
3. an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final.

The notice must also inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification or evidence of mitigation, such as rehabilitation.

Before the employer can render a final decision, it must give the individual five business days from the date the employee receives the required written notification to respond. While the amendments do not, however, define or give examples of what “evidence” the employer is required to consider and/or accept, the amendments do provide that the employer “shall consider information submitted by the employee before making a final decision.” If an employer makes a final decision to disqualify or take an adverse action solely or in part because of the individual’s conviction record, the employer is required to notify the individual in writing of the following:

1. notice of the disqualifying conviction or conviction(s) that are the basis for the final decision and the employer’s reasoning of the disqualification;
2. any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
3. the right to file a charge with the Illinois Department of Human Rights.

Notably, an employer who uses a third-party screening company to obtain information about an individual’s credit history, criminal background, references, or other personal information must also follow the procedures set out in the Fair Credit Reporting Act (FCRA). The requirements under FCRA are in addition to what is now required under the IHRA should an employer seek to use an individual’s conviction records as a basis for disqualification.

Because the amendments to the IHRA described above go into effect immediately, Illinois employers currently onboarding applicants who may have criminal convictions that could disqualify, or those that learn/know of criminal convictions that the employer may seek to use as a basis to discipline and/or terminate, must quickly familiarize themselves with the new obligations under the IHRA to avoid a charge of discrimination.

If you have questions about how these changes affect you, please contact an attorney in our Employment & Labor Practice Group.