Illinois Employment Law for 2020

2019 was a busy year for the Illinois legislature with respect to state employment law changes. Below is a summary of the most important pieces of legislation affecting employers in 2020:

Amendments to the Equal Pay Act of 2003

Made effective on September 29, 2019, the intent of the legislation is to address pay disparity between men and women. As amended, the Equal Pay Act prevents employers from:

  • Requesting or requiring that an applicant disclose wage or salary history as a condition of employment;
  • Requesting or requiring a wage or salary history as a condition of being considered for employment, as a condition of being interviewed, as a condition of an offer of employment, or as a condition of an offer of employment or an offer of compensation;
  • Screening job applicants based on their current or prior wages or salary histories, including benefits or other compensation, by requiring that the wage or salary history of an applicant satisfy minimum or maximum criteria; or   
  • Seeking the wage or salary history, including benefits or other compensation, of a job applicant from any current or former employer.

With respect to the last point, there are exceptions for an applicant’s wage or salary history that is in the public record or has otherwise been made available to the public by the employer. In addition, an employer is not in violation of the above if the applicant voluntarily gives information regarding her salary or compensation history, so long as the employer does not consider or rely on the applicant’s disclosure as a factor in: (a) hiring her; (b) her salary/compensation package; or (c) her future compensation decisions. 

Amendments to the Illinois Human Rights Act (IHRA)

In a significant change, beginning July 1, 2020, the definition of an employer under the IHRA will be any employer with one or more employees. Under the prior IHRA, employers were defined as those with 15 or more employees, except with regard to employee allegations related to sexual harassment, disability discrimination, and pregnancy discrimination. Under the new law, small nonprofits and businesses with one employee are now open to age, race, religion, national origin, sexual orientation, and gender discrimination claims under the IHRA. This will also apply to multistate employers who have one or more employees working in Illinois.

The definition of employer does not apply to any place of worship, religious corporation, association, educational institution, society, or non-profit nursing institution whereby treatment is conducted through prayer and spiritual means as proscribed through a recognized church or religious denomination.

  • Mandatory Sexual Harassment Training

In addition, effective January 1, 2020, IHRA requires all employers, as defined under the Act, to provide sexual harassment prevention training to its employees once per calendar year. The Illinois Department of Human Rights has committed to establishing a model, on-line training program.

Artificial Intelligence Interviews

Effective January 1, 2020, The Artificial Intelligence Video Act, establishes the legal requirements for employers who choose to use artificial intelligence (AI) to interview or otherwise evaluate a job applicant’s fitness for employment. The requirements for employers who use AI are:

  • To inform job applicants that AI will be used for the interview, provide the applicant information regarding how the AI interview works and what characteristics will be used to evaluate the applicant, and obtain the applicants consent before the AI interview is held.
  • If an applicant does not consent to an AI interview, then the employer may not use AI to interview an applicant.
  • The AI videos of the interview may not be shared, except with those who have the necessary expertise to evaluate the applicant.
  • Upon request from the applicant, employers, within 30 days of such request, must delete all copies, including any generated back-up copies, of the applicant’s AI interview.

Legalized Cannabis

As of January 1, 2020, recreational cannabis became legal in Illinois. Under the Cannabis Regulation and Tax Act (Cannabis Act), persons 21 and older are allowed to possess 30 grams or less of cannabis/marijuana for personal consumption. The Cannabis Act also amends the Right to Privacy in the Workplace Act by preventing employers from reprimanding or otherwise punishing employees who choose to use cannabis outside of the employer’s workplace and during off-work hours.

Employers have the right to implement drug-free workplace policies and strictly prohibit the use, sale, or distribution of cannabis at the employer’s workplace. This is especially important for employers that receive federal grants or contracts. A more difficult issue confronting employers is how and when discipline employees that are impaired by the use of cannabis during working hours. While the Cannabis Act describes a list of symptoms that indicate impairment, determining whether the employee’s impairment was due to cannabis use can be difficult. Even if an employee tests positive for cannabis, the positive test may indicate either current or past use. Since THC can remain in a person’s system for a long time, a positive test must be substantiated with co-current evidence of the employee’s impairment on the job. Therefore, employers should take the necessary steps to ensure that the right evidence of the employee’s impairment before taking disciplinary action against that employee.

There are a number of unresolved issues under the Right to Privacy in the Workplace Act that the Illinois legislature will need to address in relation to the Cannabis Act. On in particular is whether employers have the right to turn down an applicant or terminate a current employee for cannabis use, which is a lawful substance under Illinois law.

The Cannabis Act presents several challenges for employers who want to ensure both a safe workplace and comply with employment law with respect to cannabis consumption. In the very least, employers are advised to update their employee handbooks and discipline policies in order to conform with the Cannabis Act and the amended Right to Privacy in the Workplace Act.

Illinois new employment laws will require employers, especially small businesses and small nonprofits, to revisit their employment policies and procedures to ensure compliance with these new laws. In addition, employers must also maintain compliance with all other local, state, and federal employment laws. If you have questions regarding your organization’s employment-related practices, please contact Bea & VandenBerk where our attorneys are well-versed in both Illinois and federal employment law.

This article is provided for general information and should not be relied upon as legal advice for a specific situation. If you are in need of specific advice or legal representation, please do not hesitate to contact us.

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