While Missouri employers saw few legislative updates that will affect the state of employment law in 2020, the Illinois legislature had a busy year. Below is a look at some of the legislative highlights of 2019 and how they might affect your business in 2020.

Missouri

Medical marijuana

In November 2018, Missouri voted to legalize medical marijuana, meaning Missouri residents who obtain physician certification can apply for a medical marijuana license. The Missouri Department of Health and Senior Services (DHSS), which is responsible for issuing licenses to qualified patients, began accepting applications from qualifying patients on July 4, 2019. Among other conditions, qualifying patients are those diagnosed with a “qualifying medical condition,” which includes the condition of, symptoms related to, or side effects from the treatment of cancer, epilepsy, glaucoma, HIV, terminal illnesses and other chronic medical conditions.

While the law is silent on what protections a qualifying patient may have in his or her place of employment, it does expressly state that no qualifying patient may consume marijuana for medical use in a public place, which is defined to include public or private property and businesses. Although consumption is prohibited, it is unclear how Missouri courts would treat an employee with a valid medical marijuana license who was terminated for possessing the marijuana at work or testing positive for marijuana during work hours.

Arbitration agreements signed as a condition of initial employment

Less than two weeks before 2019 began, the Missouri Supreme Court issued its opinion in Soars v. Easter Seals Midwest approving an arbitration agreement signed as a required condition of initial employment. 563 S.W.3d 111 (Mo. 2018). The agreement at issue in the case was offered at the time the employee was hired, and delegated an arbitrator the exclusive authority to resolve disputes relating to the agreement’s interpretation, applicability and enforcement.

When the employee was terminated, he filed suit in state court against the employer for wrongful discharge and race discrimination. The employer moved to enforce the agreement and compel arbitration of the employee’s claims, which the employee opposed and argued, among other things, that the agreement lacked consideration.

In reversing the decision of the lower court, the Missouri Supreme Court found the agreement was valid but distinguished its prior holding in Baker v. Bristol Care, Inc., 450 S.W.3d 770, 776 (Mo. banc 2014), where it held that continued at-will employment is not adequate consideration to enforce an arbitration agreement. The court noted there is a “paramount” difference between considering whether consideration exists in an offer of continued at-will employment and an offer of initial at-will employment.

Kansas City salary history ordinance

Effective Oct. 31, 2019, employers in Kansas City, Missouri, are prohibited from asking applicants about their salary history or inquiring about their current compensation. The ordinance, which notes Kansas City’s larger-than-the-national-average gender pay gap, specifically prohibits employers from screening applicants based on their current or previous wages; using past wage information to determine whether to offer an applicant a position or to determine the applicant’s compensation; and retaliating against, refusing to hire or otherwise “disfavoring” an applicant because the applicant refused to provide his or her salary history to the employer.

Treatment of LGBTQ individuals under the Missouri Human Rights Act

On Feb. 26, 2019, the Missouri Supreme Court issued two significant opinions affecting the protection of LGBTQ individuals under the Missouri Human Rights Act (MHRA).

In Lampley v. Missouri Comm’n on Human Rights, 570 S.W.3d 16 (Mo. 2019), the court held as a matter of first impression that an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee’s sex should act could support an inference of unlawful sex discrimination. In Lampley, Harold Lampley and Rene Frost, former employees of the Missouri Department of Social Services Child Support Enforcement Division, filed related charges of sex discrimination and retaliation with the Missouri Commission on Human Rights (MCHR). Lampley, a gay man, stated that he “does not exhibit the stereotypical attributes” of masculine behavior, which subjected him to harassment at work. The MCHR determined the discrimination complaints were based on sexual orientation, which is not a protected group within the MHRA, and administratively closed the matter without issuing a right-to-sue letter. On appeal, the Missouri Supreme Court ruled in favor of the employees and held that the discrimination alleged was not based on sexual orientation, but rather sex stereotyping, which does fall under the category of sex in the MHRA.

In R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420 (Mo. 2019), a female-to-male transgender student brought a suit against the Blue Springs school district and school board, alleging discrimination in the use of a public accommodation on the basis of his sex. Specifically, R.M.A. alleged unlawful sex discrimination when he was prohibited from using the boys’ restrooms and locker room because he “is transgender and is alleged to have female genitalia.” The Circuit Court of Jackson County granted the defendants’ motion to dismiss R.M.A.’s petition for failure to state a claim in that, among other arguments, the MHRA does not cover claims based on gender identity. On appeal, the Missouri Supreme Court held R.M.A. adequately alleged that he was a member of a protected class in stating that his legal sex was male.

Illinois

Artificial Intelligence Video Interview Act

This statute, the first of its kind in the country, aims to regulate the use of technology in the workplace by placing restrictions on the use of artificial intelligence (AI) in screening job applicants. Employers who wish to use AI to screen applicant videos must first notify applicants that AI will be used to analyze video interviews and provide information about how the AI evaluates individuals. Employers must also receive consent from applicants for their videos to be evaluated by AI and must destroy interview videos upon request.

The statute is an extension of the state’s growing body of law allowing individuals more control over their personal data. However, the act does not provide a private right of action or even define critical terms such as “artificial intelligence.”

Recreational marijuana

Illinois residents and visitors over age 21 are now allowed to purchase, possess, use or transport cannabis for recreational purposes. Recent amendments to the Cannabis Act provide guidance for employers struggling with how to handle employee use of cannabis in the wake of the act’s passage. For a more in-depth discussion of related issues Illinois employers should consider, click here.

Equal Pay Protections

Amendments to the Illinois Equal Pay Act, effective Sept. 29, 2019, prohibit employers from asking for an employee’s wage history during the hiring process.

Changes to the Illinois Human Rights Act

New amendments to the IHRA expand worker protections and employer obligations in several ways. First, an employee may now bring a claim of discrimination or harassment on the basis of her perceived membership in a protected class rather than upon her actual membership in a class.

The amendments also clarify that employers are responsible for harassment of employees and nonemployees by nonmanagerial or nonsupervisory employees only if the employer “becomes aware of the conduct and fails to take reasonable corrective measures.”

Victims’ Economic Security and Safety Act

VESSA has been expanded to protect victims of “gender violence,” which includes acts of violence that are “committed, at least in part, on the basis of the person’s actual or perceived sex or gender” or that involve “a physical intrusion or physical invasion of a sexual nature under coercive conditions.”  

Gender-neutral restrooms   

All single-occupancy restrooms in places of public accommodation must now be identified as “all-gender.” These single-occupancy restrooms must be marked in a way that does not indicate any specific gender.

Illinois Workplace Transparency Act

Many Illinois employers are already familiar with the Illinois Workplace Transparency Act (IWTA), which requires annual training on how to identify and prevent sexual harassment beginning Jan. 1, 2020. Among other things, the training must include definitions of sexual harassment, examples of conduct that is unlawful, examples of appropriate and inappropriate conduct by a supervisor, a review of federal and state laws, employees’ rights and available remedies, and a list of responsibilities companies have in handling claims.

What employers might not know is that the IWTA also includes prohibitions that will affect all contracts, agreements, clauses and waivers employers may offer to employees as part of employment or separation agreements. Specifically, Illinois employers should be aware of the following:

• Employers may not unilaterally require arbitration of any claim arising under any law enforced by the Equal Employment Opportunity Commission (EEOC) or the Illinois Department of Human Rights (IDHR).
• Employers cannot condition employment or continued employment on an agreement that has the purpose or effect of preventing individuals from making truthful statements or disclosures about violations of the aforementioned laws (e.g., a confidentiality clause that prohibits reporting of Title VII violations).
• Employers are prohibited from entering into any employment agreement that includes non-disclosure or non-disparagement clauses dealing with claims for harassment or discrimination unless:
  • the harassment or discrimination claims arose before the agreement was signed;
  • the clauses are mutually agreed upon and benefit both parties;
  • the employee is given 21 calendar days to review the agreement before its execution; and
  • the employee has seven calendar days after signing the agreement to revoke it.

Finally, starting July 1, 2020, the IWTA requires all private or public employers, labor organizations and parties to a public contract to report annually any settlement, adverse judgment or administrative ruling against them involving harassment or discrimination to the IDHR for the preceding calendar year. This information must include:

• the total number of adverse judgments or adverse rulings during the preceding year;
• whether any equitable relief was ordered against the employer; and
• how many adverse judgments or administrative rulings in each of the following specific categories occurred in the previous year: sexual harassment, discrimination or harassment on the basis of sex, race, color, national origin, religion, age, disability, military status or unfavorable discharge, sexual orientation or gender identity, or on the basis of any other characteristic protected by the IHRA.

If you have questions about any of these Missouri and Illinois updates or would like to discuss how your business may be affected, please contact any of the attorneys in our Employment & Labor Group. To read about national updates in 2019 and 2020 that may be relevant to your business, check out this.

The theme for last year’s federal developments was reversal of Obama-era rules. The Department of Labor and National Labor Relations Board were especially active in this respect.

After a relatively quiet Supreme Court term for employment law in 2018-19, the stage is set for the court to rule in 2020 on highly anticipated topics. Below is a summary of major federal employment law headlines from last year and a look at what employers can expect in 2020.

For Missouri and Illinois employers, a review of 2019 state updates and a look forward at 2019 can be found here.

DOL overtime rule goes into effect

Under the Fair Labor Standards Act, the standard weekly salary threshold for exempt employees increases to $684 ($35,568 annually). Employees earning less than $684 per week must be paid overtime for hours worked in excess of 40 each week. Employees above this salary level who meet the job duties qualifications are exempt from overtime. Now that the long-delayed rule has finally gone into effect, employers should consider whether their “exempt” employees are still exempt under the new threshold.

DOL finalizes revisions to joint employer test

In early January 2020, the DOL issued its final rule updating its joint employer framework. The new rules, effective in March 2020, contract the DOL’s Obama-era broad view of joint employer liability. The final rule adopts a balancing test that looks at four factors in determining whether multiple companies have jointly employed workers: 1) whether the company can hire or fire employees, 2) the extent to which the company controls schedules and conditions of employment, 3) whether the company decides worker pay rates, and 4) whether the company maintains worker records.

EEOC retracts policy opposing arbitration mandates

On the heels of the Supreme Court’s decision in Epic Systems, in late 2019 the EEOC retracted its longstanding policy opposing mandatory arbitration of employment discrimination claims as a condition of employment. Explaining that the policy statement “does not reflect current law,” the EEOC rescinded it and advised that it should not be relied upon by EEOC staff in investigations or litigation.

NLRB overrules Purple Communications

Last month in its Caesars Entertainment decision, the NLRB overruled Purple Communications, the 2014 decision that held employees could use employer-provided email systems during nonworking time for communications protected by the NLRA. The decision holds that employees have no right to use employer-provided email for non-work purposes. Instead, employers maintain control over their property, including communications systems, and may establish nondiscriminatory rules restricting employee use. Employers may wish to revisit employee handbooks and workplace policies in light of the holding.

NLRB overrules Banner Estrella Medical Center

Continuing its trend of backtracking on Obama-era board decisions, in Apogee Retail, decided in December 2019, the NLRB found that it was not unlawful for companies to maintain rules requiring confidentiality of employees during workplace investigations. The board analyzed the employer rule under the Boeing test and concluded that a facially neutral rule requiring confidentiality during investigations is presumptively legal. The board further explained that employers may require confidentiality even after a workplace investigation has concluded if a legitimate business interest outweighs the impact on employees’ rights under the NLRA.

NLRB modifies “ambush” election rules

The NLRB also recently released new rules set to take effect in May 2020 that will eliminate Obama-era “quickie” representation elections. The new rules loosen some of the procedural requirements associated with responding to union election petitions, allowing employers more time and more avenues for responding.

Supreme Court

Does Title VII prohibit discrimination on the basis of sexual orientation, gender identity and transgender status?

On Oct. 8, 2019, the court heard a trio of cases on whether Title VII prohibits discrimination on the basis of sexual orientation, gender identity and transgender status. When the court issues these rulings, it will likely resolve a major lingering question (and circuit split) about how far Title VII’s prohibition on discrimination “because of sex” extends.

Presently, however, employers are advised to check local and state laws for guidance, keeping in mind that several state and local jurisdictions have already provided protection against sexual orientation discrimination. Find a more detailed discussion on this circuit split here.

What standard of causation applies to race discrimination claims under Section 1981?

On Nov. 13, 2019, the court heard oral arguments in Comcast v. National Association of African American-Owed Media, which considers whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation. This case stems from Comcast declining to carry channels that plaintiffs produced, allegedly violating Section 1981 — a federal law barring racial discrimination in contracts. The district court dismissed the plaintiffs’ action, concluding that they had not alleged facts showing Comcast’s decision was motivated by race, rather than by legitimate business reasons. But the Ninth Circuit Court of Appeals reversed, holding that, to survive a motion to dismiss for failure to state a claim, “plaintiffs needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract, and not necessarily the but-for cause of that decision.”

Businesses should be on the lookout for the court’s decision because affirming the Ninth Circuit’s ruling could make it much easier for employees to obtain damages under Section 1981 than under Title VII.

What standard of causation applies to federal sector ADEA claims?

On Jan. 15, 2020, the court heard oral arguments in Babb v. Wilkie, in which the court is considering whether federal-sector employees bringing ADEA age-discrimination claims must prove their age was not just the motivator, but the cause for the adverse employment action. In Babb, the plaintiff alleges she was denied a promotion because of her age, a violation of Section 633a(a). This provision states in relevant part that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age shall be made free from any discrimination based on age.” According to the defendant, the phrase “based on age” requires that plaintiffs prove their age was the but-for cause of the challenged action.

The court’s treatment of causation standards in Babb and Comcast could signal a move toward the but-for causation standard in other statutory contexts.  

Are federal officials liable for money damages when they simply enforce laws barring discrimination?

At the surface, FNU Tanzin v. Tanvir appears to just decide whether the Religious Freedom Restoration Act (RFRA) allows suits seeking money damages against individual federal employees. In Tanvir, two Muslim men were placed on the “no fly” list after they refused to provide the FBI agents information about other American Muslims. Both men sued the agents, alleging that retaliating against them violated the RFRA, which is intended to prevent other federal laws from substantially burdening a person’s religious exercise.

A decision in Tanvir permitting individuals to seek money damages against individual federal employees could have sweeping effects, potentially opening the door for claims against federal officials for enforcing anti-discrimination laws against individuals who claim their faith requires them to discriminate.

If you have questions about any of the topics addressed in this update, or if you want to discuss how these issues may affect your business, contact any of the attorneys in our Employment & Labor Group.

Previously, we warned how the Cannabis Regulation and Tax Act (Cannabis Act) will directly impact Illinois employers’ responsibilities and liabilities when drug testing, disciplining or terminating employees because of the use or possession of cannabis.

Then, in December 2019, Gov. J.B. Pritzker signed amendments into the Cannabis Act. At first glance, it appears these amendments, Public Act 101-0593, are employer-friendly because they have relieved some of the tension between Illinois’ Right to Privacy in the Workplace Act (Right to Privacy Act) and the Cannabis Act. For example, under the amendments to the Cannabis Act, an employer may retract a job offer based on an applicant’s cannabis use before beginning employment.

However, the new amendments to the Cannabis Act do not disturb the Cannabis Act’s prior amendments to the Right to Privacy Act. Still, under the Right to Privacy Act, Illinois employers may be prohibited from discriminating against employees who use “lawful products (like cannabis) off the premises of the employer during nonworking and non-call hours.” Because an employee may fail a drug test even several days or weeks after use, employers will have difficulty demonstrating that a failed test equates to being under the influence of cannabis at work. Thus, Illinois employers could be open to discrimination claims from employees who claim that a failed drug test was the result of cannabis use off premises and during nonworking hours.

As a result, Illinois employers should still consider the following:

1. Reasonable workplace drug policies and reasonable drug-testing policies: The new amendments neither specify what constitutes a reasonable workplace drug policy nor a reasonable drug-testing policy. To make matters worse, a reasonable drug-testing policy in one industry may not be reasonable in another industry. For employers regulated by USDOT and federal or state contractors, random drug testing is reasonable because the Cannabis Act does not impact the prohibition on drug use and drug testing for these employers. But in other industries, random drug testing may not be reasonable as it could conflict with the Right to Privacy Act.
2. Employment decisions solely on a failed drug test: Section 10-50(d) is a safe harbor for employers. Employment decisions should be based on a good-faith belief and supported with documentation noting an employee’s articulable symptoms of impairment while at work. In fact, at least one court has addressed this under a similar statutory structure and found that “without any evidence that Plaintiff ‘used, possessed or was impaired by marijuana’ at work on [a date], it is clear that Defendant discriminated against Plaintiff in violation of [the state’s Medical Marijuana Act] by suspending and then terminating Plaintiff solely based on her positive drug screen.” Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 791 (D. Ariz. 2019).
3. Implementing procedures allowing employees to contest the determination that they were under the influence or impaired by cannabis while at work. Under Section 10-50(d), “if an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.”
4. The amendments to the Cannabis Act do not eliminate the protections afforded to employees under Illinois’ Compassionate Use of Medical Cannabis Program Act.

We will continue to follow developments on these issues. If you have questions about the Cannabis Act, developing reasonable and nondiscriminatory disciplinary policies, or implementing procedures for documenting symptoms that an employee is under the influence of cannabis, please contact one of the attorneys in our Employment & Labor practice group.

With the new year fast approaching, millions around the world will be gathering to count down the end of 2019 and usher in a new decade. As the ball drops in Times Square, employers should be asking themselves, “Are my exempt employees still subject to the Fair Labor Standards Act (FLSA) exemption?”

Effective Jan. 1, 2020, the standard weekly salary threshold for exempt employees will increase from $455 to $684, or from $23,660 annually to $35,568. Employees earning less than $684 per week must be paid overtime for hours worked in excess of 40 each week. Employees above this salary level who meet the job duties qualifications are exempt from overtime.

For highly compensated employees, the new FLSA rules increase the salary threshold to $107,432 from $100,000. Employers may use nondiscretionary bonuses and incentive payments, including commissions, to satisfy up to 10 percent of the standard salary level.

While the salary thresholds have increased, the duties tests in effect before 2020 remain unchanged.

In anticipation of the 2020 implementation date, employers should review and evaluate the status of their current employees and identify any positions that should be updated. If you have questions about the overtime rule, the classification of your employees or other FLSA compliance issues, the attorneys in our Employment & Labor Practice Group can help you navigate these changes.

For months, companies doing business in California have awaited clarity on the final contours of the California Consumer Privacy Act (CCPA), which goes into effect on Jan. 1, 2020. Some employer questions were recently answered when California Attorney General Xavier Becerra released proposed regulations for the CCPA and Gov. Gavin Newsom signed several CCPA amendments into law. One of those amendments, AB-25, exempts certain types of employee data from coverage under the CCPA.

The CCPA is a broad privacy law intended to give California consumers more control over their personal data by placing restrictions on how companies use and sell personal information. Under the CCPA, certain companies that collect information from California residents are subject to notice and disclosure requirements; consumers are provided certain rights over their information, such as the ability to opt out of information sharing and to request that their data be deleted.

AB-25 will exempt employers for one year from the act’s requirements with respect to personal employee information collected  and used by a business “solely within the context of” an individual’s role as a “job applicant to, an employee of, director of, officer of, medical staff member of, or contractor of that business.” In other words, employers are not bound by the CCPA’s requirements to the extent that they collect personal employee information for employment purposes. The exemption extends to emergency contact information and information used to administer benefits when also collected in the context of an employment relationship. The employee exemption sunsets after a year, giving the California legislature the opportunity to consider privacy legislation more targeted to employee data.     

The employee exemption will lessen compliance concerns for employers, but companies must still comply with the CCPA with respect to any personal data collected that does not relate to the employer-employee relationship. Employers must still inform employees of the categories of any personal information they collect and how that information is used. Also, the amendment does not exempt personal employee data from the private right of action available under the CCPA. So employees may still bring suits against their employers if their information is subject to a data breach or is not protected by reasonable safeguards.

To learn more about CCPA, including whether your company is subject to its requirements and how to comply, contact one of the attorneys in our Employment & Labor practice group or Privacy & Data Security practice group.

The Department of Labor (DOL) announced its Final Rule updating the exemption threshold under the Fair Labor Standards Act (FLSA) on Sept. 24, 2019. The Final Rule raises the standard salary level threshold for “white collar” employees from the $23,660 minimum established in 2004 to $35,568, or $684 per week. Employees earning less than $35,568 a year must be paid overtime for hours worked in excess of 40 each week. Above this salary level, eligibility for overtime varies based on job duties.

For highly compensated employees, the Final Rule sets the new salary threshold at $107,432 — an increase from the $100,000 mark set in the 2004 regulations. Employers may also use nondiscretionary bonuses and incentive payments, including commissions, to satisfy up to 10 percent of the standard salary level, a change that has been retained from the 2016 proposed rule. The Final Rule does not impact the duties tests, which are part of the FLSA exemption analysis. The changes will take effect Jan. 1, 2020.

The new standard salary threshold is significantly less than the $47,476 threshold set forth in the 2016 regulations the Obama DOL issued (which were previously held invalid by a federal district court judge) and slightly higher than the threshold set in the proposed rulemaking earlier this year. The DOL estimates the new salary level will impact approximately 1.3 million workers — far fewer than 4.2 million workers estimated to become eligible for overtime under the Obama-era rule. Although the 2016 rule created a formula by which the salary threshold would increase automatically with inflation, the Final Rule does not include any such mechanism. Rather, the DOL has only stated that it “reaffirms its intent to update the standard salary level and [highly compensated employee] total annual compensation threshold more regularly in the future using notice-and-comment rulemaking.”

In anticipation of the 2020 implementation date, employers should review and evaluate the status of their current employees and identify any positions that should be updated. If you have questions about the proposed overtime rule, the classification of your employees, or other FLSA compliance issues, the attorneys in our Employment & Labor Practice Group can help you navigate these changes.

Can employers violate employees’ rights by creating policies that prohibit certain hairstyles at work? New York City and California think so; and they likely won’t be the last jurisdictions with a say on the matter.

Just this year the New York City Commission on Human Rights issued guidelines saying that while employers can require that employees maintain a work-appropriate appearance, a grooming policy that prohibits locs, cornrows, fades, Afros, and other such hairstyles will be considered racial bias. Specifically, the guidelines state:

“Employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with black communities to promote a certain corporate image, because of customer preference or under the guise of speculative health or safety concerns. An employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”

Last month, California became the first state to pass a law banning company policies that discriminate against certain natural hairstyles historically associated with race. The law, titled the CROWN Act (Creating a Respectful and Open World for Natural Hair), classifies workplace bans on natural hair as “enforc[ing] a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals.” As a remedy, the Act amends California’s anti-discrimination statute, by defining race and ethnicity to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Protective hairstyles include but are not limited to hairstyles such as “Afros, braids, locks, and twists.”

While California is the first state to pass a law prohibiting discrimination against natural hair, both New York state and New Jersey have also introduced bills that would extend protection to those who choose to wear natural hairstyles. Even if not operating in one of those three states, employers should review and revise grooming or appearance policies to ensure that they do not ban, limit or otherwise restrict hair texture or hairstyles that have historical associations with race. For example, a uniformly-applied policy requiring only that hair be kept “clean and neat” would not be discriminatory.

If you have questions about the CROWN Act or other pending legislation, or need help revising your company’s grooming or appearance policies, please contact one of the attorneys in our Employment & Labor practice group.

Under a new law set to take effect September 29, 2019, Illinois employers will be prohibited from, among other things, asking for an employee’s wage history during the hiring process. The law, which amends the Illinois Equal Pay Act, is designed with the intent of avoiding future pay disparity between men and women based on prior wage differences.

Under the new law, Illinois employers are prohibited from the following:

• Screening job applicants based on current or prior wages or salary histories (including benefits or other compensation) by requiring an applicant’s wage or salary history satisfy minimum or maximum criteria.
• Requesting a wage or salary history as a condition of being considered for employment, being interviewed, or continuing to be considered for an offer of employment.
• Requesting that an applicant disclose wage or salary history as a condition of employment.
• Seeking wage or salary histories (including benefits or other compensation) about a job applicant or from any current or former employee (this does not apply where the information is a matter of public record or if the applicant is a current employee applying for a position within the same company).
• Requiring an employee to sign a contract or waiver that prohibits the employee from disclosing information about the employee’s wages, salary, benefits or other compensation.
• Discharging any employee who fails to comply with any wage or salary history inquiry.

The new law provides some guidance as to what an Illinois employer can discuss with respect to a prospective employee’s compensation expectations. Specifically, the new law permits employers to do the following:

• Provide information about the wages, benefits, compensation or salary offered in relation to a specific position.
• Engage in discussion with an applicant about the applicant’s wage, salary or compensation expectations.

The new law also addresses situations where an applicant discloses otherwise prohibited information during the hiring process. Should that occur, an employer is not in violation of the law unless the employer relies on the information for any of the following:

• Determining whether to offer the applicant employment.
• Determining whether to make a specific offer of compensation.
• Determining future wages, salary, benefits or other compensation.

The new law provides that an individual may bring a civil action against an employer who violates the law anytime within five (5) years of the alleged violation. The employee is entitled to recover any damages actually incurred, along with “special damages” up to $10,000, injunctive relief and reasonable attorneys’ fees and costs. Employers are also subject to civil penalties of up to $5,000 for each violation of the law and for each employee affected.

In light of the new law, Illinois employers should consider the following:

• Do your job application forms request information about an applicant’s wage or salary history at prior places of employment? If so, your job applications need to be updated.
• Employees involved in the hiring process need to be brought up to speed with the requirements of the new law.
• Employee handbooks/policies should be reviewed to ensure compliance with the new law, in particular any restrictions on employees discussing wages or compensation.

If you have questions about the new law, please contact one of the attorneys in our Employment & Labor practice group.