Illinois has recently enacted several pieces of legislation that have brought sweeping changes to employment law that affects Illinois employers.
Amendments to Illinois Equal Pay Act (IEPA)
Under recent amendments to the IEPA, Illinois employers may not screen applicants based on their salary history (including benefits or other compensation), request or require an applicant’s salary history, including seeking an applicant’s salary history from an applicant’s former employer, or otherwise take an adverse action against an individual because they fail to comply with any wage or salary history inquiry. Employers may still, however, provide compensation and benefits information about a position and discuss an applicant’s pay and benefits expectations. If an applicant voluntarily discloses their current or prior compensation, employers are still not permitted to take the information into consideration in deciding whether to offer the job or in setting compensation. Employment applications should not include any questions that request salary or wage history, and managers should refrain from making such inquiries.
The definition of “comparators” when comparing employee pay rates has also been expanded. Employers were previously not permitted to discriminate against employees by paying at a rate less than members of the opposite sex or non-African Americans, respectively, for the same or substantially similar work on jobs the performance of which requires “equal” skill, effort, and responsibility, performed under similar working conditions. Now, the IEPA will allow employees to look at jobs the performance of which requires “substantially similar” skill, effort, and responsibility, instead of “equal” skill, effort, and responsibility.
Workplace Transparency Act (WTA)
Under the new WTA, as of January 1, 2020, Illinois employers are restricted in how and when they can use confidentiality provisions in settlement and separation agreements. Under the WTA, confidentiality provisions in settlement and separation agreements with prospective, current, and former employees are permitted only if the provisions comply with certain new requirements. Some of the new requirements include, but are not limited to, the confidentiality provisions must mutually be beneficial to both parties, the employee must be notified of their right to have an attorney review the agreement, and the employee must be given 21 days to consider the agreement along with a 7-day revocation period.
Amendments to Illinois Human Rights Act (IHRA)
Additionally, the IHRA has been amended in a multitude of ways. IHRA’s scope has been expanded to cover not only employees, but also independent contractors and consultants, as well as discrimination based on an individual’s “actual or perceived” protected characteristic (i.e. race, color, sex, or religion). The definition of “employer” has also been changed to include businesses with one or more employees. Previously, the IHRA only applied to businesses with 15 or more employees, except in certain situations. Therefore, all businesses are now subject to the IHRA. This is especially important because as of January 1, 2020, all Illinois employers are now required to provide sexual harassment training to all employees on an annual basis. Therefore, Illinois employers will have until the end of 2020 to provide the required training to employees. The training must be based off of the model training that the Illinois Department of Human Rights (IDHR) is required to create. The IDHR will also be offering sexual harassment training at no cost to employers.
In addition to the new training requirements, restaurants and bars in Illinois must also provide a written sexual harassment policy to all new hires within the first week of being hired. The policy must include:
1) a prohibition of sexual harassment
2) the definition of sexual harassment under the IHRA and Title VII of the Civil Rights Act of 1964
3) details on how an individual can report an allegation of sexual harassment internally, including the option for making a confidential report to a manager, owner, corporate headquarters, or human resources department
4) an explanation of the internal complaint process available to employees
5) how to contact and file a charge with the IDHR or EEOC
6) a prohibition on retaliation for reporting sexual harassment and
7) a requirement that all employees participate in sexual harassment training. The policy must be made available in English and Spanish.
The IDHR will be required to develop a sexual harassment model training program specifically for restaurants and bars in addition to their requirement of creating a model training for other general industries.
Once the Illinois Department of Human Rights releases its model trainings for general industries and the restaurant and bar industry, MBA will send a follow-up communication about providing Illinois sexual harassment webinars so that businesses who are interested may have their employees attend.
If you have questions, need assistance with ensuring your confidentiality provisions are compliant, or need assistance with updating your sexual harassment policy, please contact one of our HR Consultants at 888-622-6460.