Illinois: Legislative Updates
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APPLIES TO All Employers with Employees in IL |
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Quick Look
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Discussion
Illinois has passed several significant pieces of legislation that will affect employer obligations and employee rights. Key aspects of each law are discussed below.
Amendments to Illinois Human Rights Act
Several laws were signed by Illinois’ Governor that significantly amend the Illinois Human Rights Act.
Longer Statute of Limitations Period. Under SB 3310, effective January 1, 2025, the deadline for filing an administrative charge with the Illinois Department of Human Rights based upon employment discrimination, harassment, or retaliation is extended to two years after the date that a civil rights violation allegedly has been committed. Previously, an individual was required to file a claim within 300 calendar days.
New Protected Classes.
- Family Responsibility. Effective January 1, 2025, HB 2161 prohibits an Illinois employer from taking adverse actions against an employee, or prospective employee, based upon the employee’s “family responsibilities.” “Family responsibilities” means an employee’s actual or perceived provision of personal care to a family member. Personal care is defined as activities to ensure that a covered family member’s basic medical, hygiene, nutritional, or safety needs are met, or to provide transportation to medical appointments, for a covered family member who is unable to meet those needs themself. Notably, employers are notrequired to make accommodations or modifications to company policies for an employee based upon family responsibilities.
- Reproductive Health Decisions. Effective January 1, 2025, HB 4867 prohibits Illinois employers from unlawfully discriminating against an employee for actual or perceived decisions on reproductive health and welfare. “Reproductive Health Decisions” are defined as “a person’s decisions regarding the person’s use of: contraception; fertility or sterilization care; assisted reproductive technologies; miscarriage management care; healthcare related to the continuation or termination of pregnancy; or prenatal, intranatal, or postnatal care.”
Restrictions on the Use of Artificial Intelligence (AI) in Employment Decisions. Under HB 3773, Illinois joins a select group of other jurisdictions taking aim at regulating the use of artificial intelligence (AI) across the employment relationship. Set to go into effect on January 1, 2026, employers will be required to provide notice to employees (including apprentices and applicants for apprenticeship) when an AI tool is used for the purpose of “recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment.”
AI is defined to include content-creating generative AI and more traditional predictive AI, which produces scores, ranks, classifications and other recommendations to assist in decision-making. The amendment does not include job applicants explicitly; however, the text suggests that the scope will extend to job applicants as well. The amendment confirms that employers are liable if the use of AI for any of the purposes listed above results in discrimination against classes of individuals protected by the IHRA.
BIPA Reform
Effective August 2, 2024, SB 2979 implements the long-awaited reform to the Illinois Biometric Information Privacy Act (BIPA). The amendments to the law come on the heels of the Illinois Supreme Court decision in Cothron v. White Castle Systems, which found that that each instance of unauthorized collection, storage, and/or use of biometric information without proper consent results in separate “per scan” damages. Now, under the amended law, multiple alleged collections of an individual’s biometric data constitute a single violation, limited to one recovery. The Amendment also makes clear that individuals may execute a BIPA-compliant release using an electronic signature.
Updated Wage Statements
Effective January 1, 2025, SB 3208 defines “pay stub” to mean “an itemized statement or statements
reflecting an employee’s hours worked, rate of pay, overtime pay and overtime hours worked, gross wages earned, deductions made from the employee’s wages, and the total of wages and deductions year to date.” Employer must maintain copies of employee pay stubs for at least 3 years after the date of payment.
An employer who provides electronic pay stubs in a manner that a former employee cannot access for at least a full year after separation must offer to provide the outgoing employee with a record of all of the outgoing employee’s pay stubs from the year preceding the date of separation. The offer must be made to the outgoing employee by the end of the outgoing employee’s final pay period. The employer must document in writing the date on which this offer was made and if and how the outgoing employee responded. Employers must also furnish copies of pay stubs to current and former employees within 21 calendar days of a request.
Updates to Illinois Personnel Records Review Act
Effective January 1, 2025, HB 3763 will impose new obligations on employees and employers for making and responding to personnel record review requests. For employees, the amended law clarifies that all requests under the Act must be made in writing, which includes electronic communications like text messages or emails. Additionally, each request must:
- Be made at reasonable intervals, unless otherwise provided in a collective bargaining agreement;
- Be made to a person responsible for maintaining the employer’s personnel records (e.g., the employers HR department, employee’s supervisor, or to another individual provided for in the employer’s written policy);
- Identify what personnel records the employee is requesting;
- Specify if the employee is requesting to inspect, copy, or receive copies of the records;
- Specify how records should be provided (e.g., in hardcopy or electronic format);
- Specify whether inspection, copying, or receipt of copies will be performed by that employee’s representative; and
- If the records being requested include medical information and medical records, include a signed waiver to release medical information and medical records to that employee’s specific representative.
For employers, if a request is submitted in accordance with the above requirements, then employees are entitled to review the following categories of documents:
- Documents that are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, benefits, discharge, or other disciplinary action (with limited exceptions);
- Any employment-related contracts or agreements that the employer maintains are legally binding on the employee;
- Any employee handbooks that the employer made available to the employee or that the employee acknowledged receiving; and
- Any written employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, discharge, or other disciplinary action.
The Act clarifies that employers must grant at least two requests from an individual or their representative in a calendar year for the inspection, copy, or production of records. In granting the request, the employer is not obligated to categorize responsive records in any specific manner. An employer may still charge a fee for providing a copy of the requested record; however, there are some new guidelines on how an employer can determine what constitutes a reasonable charge.
New Employment Verification Protections
Effective January 1, 2025, SB 0508 will provide new employment protections for individuals flagged by an employment eligibility verification system, including federal E-Verify. Specifically, the bill prevents employers from imposing work authorization verification requirements that are greater than those required by federal law. If an employer asserts that a discrepancy exists in an employee’s employment verification information, the employer is obligated to provide the employee with certain notices, including:
- The specific document(s) that the employer deems to be deficient, the reason for deficiency, and upon request by the employee, the employer must give the employee the original document forming the basis for the deficiency;
- Instructions on how the employee may correct the alleged deficiencies, if required to do so by law;
- An explanation of the employee’s right to have representation present during related meetings, discussions, or proceedings with the employer; and
- An explanation of any other rights the employee may have in connection with the alleged discrepancies.
In addition to providing these notices, SB 0508 also affords employees additional rights and protections when an employer receives notification from any federal or state agency of a discrepancy in relation to work authorization, including preventing employers from taking any adverse action against the notification of discrepancy.
The law also requires employers to provide notice to each current employee, by posting in English and in any language commonly used in the workplace, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by the inspecting entity within 72 hours after receiving notice of the inspection. If during an inspection the inspecting entity makes a determination concerning the employee’s work authorization documents, the employer is required to send additional notice to the employee of the determination.
Required Employer-Sponsored Meetings Banned
Effective January 1, 2025, SB 3649 will prohibit employers from discharging or disciplining employees who refuse to attend mandatory employer-sponsored meetings. The bill seeks to provide “protections from mandatory participation in employer-sponsored meetings if the meeting is designed to communicate an employer’s position on religious or political matters,” as “[e]mployees should not be subject to intimidation tactics, acts of retaliation, discipline, or discharge from their employer for choosing not to participate in employer-sponsored meetings.”
SB 3649 broadly defines the topics prohibited in mandatory meetings to include “political matters,” defined as “matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization,” as well as “religious matters,” which is defined as “matters relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association.” The law also provides for an administrative procedure for complaints to be handled by the Illinois Department of Labor.
Action Items
- Review and revise anti-discrimination and anti-harassment policies to comply with expanded protected classifications.
- Consult with legal counsel on the use of AI in the workplace.
- Update employee personnel record review policies and practices.
- Review employment authorization obligations and update policies and practices for compliance with expanded notice requirements.
- Update payroll processes to meet pay stub requirements.
- Update exit procedures to document offering payroll records.
- Have appropriate personnel trained on updated requirements.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase