2018 Illinois, Indiana, and Wisconsin Employment Law Year in Review
Illinois Amends Wage Payment and Collection Act to Require Employers to Reimburse for “Necessary Expenses”
As of January 1, 2019, employers in Illinois are required to reimburse employees for all necessary expenditures or losses that are incurred by the employee within the employee’s scope of employment and that are directly related to services performed for the employer (820 ILCS 115/9/5). This means all reasonable expenses/losses required of the employee in the discharge of employment duties that inure to the primary benefit of the employer.
If the employer has an established written expense reimbursement policy addressing the expense(s) at issue and the employee did not comply with the policy, the employer is not required to reimburse the employee unless the employer otherwise authorized or required the employee to incur the necessary expenditure. Further, if the employer’s policy has expense caps, the employer is not liable for expenses that exceed the amount provided in the policy. However, an employer may not institute a policy that provides for no reimbursement or only de minimis reimbursement.
Employers must allow a minimum of 30 calendar days after the employee incurs the expense for the employee to submit a request for reimbursement with supporting documentation. The employee may be required to provide a signed, written statement in lieu of a receipt when supporting documentation has been lost or does not exist.
States with similar laws with similar language have interpreted necessary expenses to include data plans, internet bills, and other expenses related to telecommuting or “bring your own device” policies. We recommend that Illinois employers institute written expense reimbursement policies.
Illinois Equal Pay Act Amended to Cover African-American Employees
The Illinois Equal Pay Act (IEPA) has expanded as of January 1, 2019, to cover pay disparity between African-Americans and non-African-Americans. Employers will be prohibited from paying African-American employees less than non-African-American employees who are performing the same or substantially similar work on jobs that require equal skill, effort and responsibility and for work that is performed under similar working conditions. The IEPA was previously limited to addressing pay disparity between men and women.
ISSERRA Expanded to Provide Further Protections
The Illinois Service Employment Member Employment and Reemployment Rights Act (ISSERA) went into effect on January 1, 2019, and expands existing protections for Illinois employees who perform active duty or reserve service in the military. ISERRA repealed a patchwork of other military service related laws including Illinois’ Military Leave of Absence Act, Public Employee Armed Services Rights Act, Municipal Employees Military Active Duty Act, and Local Government Employees Benefits Continuation Act. The Illinois Family Military Leave Act, which provides family of service members the ability to take unpaid leave when a service member is called to duty lasting more than 30 days, remains in effect.
ISERRA incorporates and expands the protections of the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The definition of “military service” under ISERRA includes (1) all members of the Armed Forces of the United States whether active duty or reserve including the National Guard when performing state duty; (2) all members of Military Auxiliary Radio System, United States Coast Guard Reserve, Civil Air Patrol, and the Merchant Marines when performing official duties in support of an emergency; and (3) members who are released from military duty with follow-on care by the Department of Defense.
ISERRA requires special treatment for performance evaluations of service members on a military-related leave. The service member must be given the average of his or her ratings received over the three years preceding the leave. However the average rating cannot be less than the rating that the employee received for the last rating period preceding his or her leave.
The statute created an “ISERRA Advocate” in the Illinois Attorney General’s Office to assist service members and employers with questions about service members’ protections under the statute and requires a posting of employee rights.
ISERRA provides for a private right of action as well as enforcement by the Illinois Attorney General. ISERRA authorizes recovery of actual damages as well as attorneys’ fees and up to $50,000 in punitive damages per violation to a prevailing plaintiff.
Illinois Human Rights Act Amended
In 2018, the Illinois Human Rights Act (IHRA) was amended to provide additional rights for employees. Complainants historically had up to 180 days from the date of alleged discrimination or harassment to file a complaint with the Illinois Department of Human Rights (IDHR). Pursuant to the 2018 amendments, complainants now have up to 300 days to file a charge with the IDHR, the same time period provided for filing charges with the United States Equal Employment Opportunity Commission (EEOC).
In addition, a complainant may now opt out of the IDHR’s investigative process by submitting a written opt out request to the IDHR within 60 days of receiving notice from the IDHR of the opt out right. The IDHR then has 10 business days to issue a Notice of Right to Sue, which allows the complainant to file a lawsuit in state court within 90 day of receipt of the Notice. The IDHR is required to copy the employer on the Notice of Right to Sue.
The 2018 IDHR amendments also require employers to post a notice from the IDHR and include that same content in employee handbooks. This includes specific information about an employee’s right to be free from sexual harassment.
Note that Governor Bruce V. Rauner vetoed legislation that would have lowered the threshold requirement for liability for all forms of discrimination under the IHRA from 15 employees to one.
Illinois Amends Illinois Nursing Mother in the Workplace Act to Require Paid Lactation Breaks and More
Effective August 21, 2018, Illinois amended its Nursing Mothers in the Workplace Act (the Act) to:
- Eliminate the previous requirement that lactation breaks run concurrent to breaks already provided by an employer;
- Prohibit employers from reducing pay during lactation breaks; and
- Require employers to provide break time for mothers to nurse a baby.
The original language of the statute provided only that employers provide “reasonable unpaid break time.” The amendment eliminated the “unpaid” language and added new language to prohibit employers from reducing “an employee’s compensation for the time used for the purposes of expressing milk to nursing a baby.”
Further, the amendment added break time for “nursing a baby”. The original language only provided break time for the “expressing of milk.” The amendment did not, however, require employers to provide a place for mothers to nurse a baby. The Act only requires employers to provide a “room or other location, in close proximity to the work area, other than a toilet stall, where an employee … can express her milk in privacy.”
The amendment also clarified that employers are required to provide lactation breaks for up to one year after the child’s birth and further provides that an employer is only exempt from complying with the Act if providing breaks would create “an undue hardship” as defined by the IHRA.
Illinois Amends Compassionate Use of Medical Cannabis Pilot Program Act
On August 28, 2018, Illinois Gov. Bruce V. Rauner signed SB 336 into law. The bill amends the Compassionate Use of Medical Cannabis Pilot Program Act (Compassionate Use Act), which created the doctor-advised exception to the state’s criminal proscription on marijuana use. The new law also eases some of the more onerous stipulations for acquiring medical marijuana, including fingerprinting and criminal background checks. At the signing ceremony, Gov. Rauner commented that the bill “will help people avoid opioid addiction and that will save lives.”
The expanded medical marijuana pilot program impacts the employment landscape, particularly regarding the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The ADA’s anti-discrimination provisions apply to qualified individuals with disabilities (QIDs), or those who (1) are disabled under the law; (2) qualified for their positions; and (3) able to perform the essential job functions with or without a reasonable accommodation.
Although an individual is not a QID if she is engaging in illicit drug or alcohol use, and although the ADA does not forbid an employer from prohibiting illegal drug use in the workplace, prescription drug use as a reasonable accommodation is governed by the ADA and applicable state law. But because marijuana remains illegal under federal law, for protections to trigger at the state level there must be a more expansive state-based equivalent.
In Illinois, the Compassionate Use Act prohibits discrimination against qualified medical marijuana users and the IHRA specifically prohibits discrimination on the basis of physical and mental disabilities. Accordingly, Illinois employers should maintain effective medical marijuana policies and understand their obligations when faced with qualified medical marijuana users – which, given the recent pilot program expansion, is increasingly likely.
Chicago Creates New Office of Labor Standards to Enforce City’s Minimum Wage, Paid Sick Time & Anti-Wage Theft Laws
On October 31, 2018, the Chicago City Council unanimously approved the formation of the Office of Labor Standards (OLS) to enforces the city’s minimum wage, paid sick time and anti-wage theft laws. The law went into effect on January 1, 2019, and establishes enforcement by a director, two investigators, a paralegal, and an administrative employee. The OLS will be a division within the city’s Department of Business Affairs and Consumer Protection, which currently handles complaints from workers related to the city’s labor laws.
The purpose of the OLS is to respond to worker complaints, collect and distribute owed pay and proactively investigate employers it believes could be violating the city’s labor laws. The OLS will issue an annual report listing all employers cited for violations. Employers who have been found to have violated Chicago labor laws will be barred from bidding on city contracts for one year. The OLS will also conduct community outreach to educate employers and employees about their rights and obligations.
Indiana Governor Signs New Law Establishing When Marketplace Contractors Like Uber Drivers Are Considered Independent Contractors
On March 14, 2018, Governor Eric Holcomb signed a new law establishing requirements for determining when a “marketplace contractor,” like an Uber driver, is an independent contractor. The new law became effective on July 1, 2018.
Under the law, a marketplace contractor is defined as a person or an organization, including an individual, a corporation, a limited liability company, a partnership, a sole proprietor, or other entity, that enters into an agreement with a marketplace platform to provide services to third party individuals or entities seeking those services. The term does not include a person or organization when the services performed consist of transporting freight, sealed and closed envelopes, boxes, parcels, or other sealed and closed containers for compensation.
A marketplace platform is an entity that (1) operates a website or smartphone app that “facilitates the provision of services by marketplace contractors to individuals or entities seeking the services;” (2) accepts requests through the web site or app, not through phone or in person; and (3) “does not perform services at or from a physical location in Indiana”.
Under the law, a marketplace contractor shall be treated as an independent contractor if certain factors apply. These factors include that: all or substantially all of the payment for the services performed by the marketplace contractor is related to the performance of services or other output; there is a written contract executed between the marketplace contractor and the marketplace platform that contains specific provisions, including that the marketplace contractor is not an employee of the platform; payments are based on services/output by the marketplace contractor; the marketplace contractor chooses the work hours/schedule; the marketplace contractor may perform services for other parties without restriction; and, the marketplace contractor bears responsibility for all or substantially all of the expenses that the marketplace contractor pays or incurs in performing the services, without the right to obtain reimbursement.
Indiana Enacts New Law Allowing Home Health Workers to Provide Expanded Criminal History Report for Background Check Requirements
The Indiana Family and Social Services Administration Division on Aging requires that all home health care workers submit to criminal history checks. On March 19, 2018, Indiana Governor Eric Holcomb signed a law that “[p]rovides that an expanded criminal history check may be used instead of certain background checks and criminal history checks for home health care workers.”
The law, which became effective July 1, 2018, prohibits these expanded criminal history checks from including certain criminal history information, including information about the individual that occurred before they were 18 years old, and information that is restricted by a state where the individual previously resided.
Indiana General Assembly Must Receive Sexual Harassment Training Under New Law
Effective July 1, 2018, a new Indiana law requires annual sexual harassment prevention training for members of the General Assembly. The Personnel Subcommittee of the Legislative Council was required to prepare and submit recommended sexual harassment prevention policies governing legislators to the Legislative Council.
Wisconsin Enacts Employment Law Standardization Act to Promote Uniform Regulation Throughout The State
Wisconsin’s Employment Law Standardization Act (AB 748) (the Act) went into effect in 2018. The purpose of the Act is to promote uniform regulation of labor and employment matters throughout Wisconsin. Pursuant to the Act, local governments may not enact or enforce ordinances that:
- Regulate employees’ work hours, overtime, or the scheduling of employees’ shifts;
- Require an employer to provide certain employment benefits to employees, require an employer to provide a minimum level of employment benefits to employees, or set terms and conditions of employment benefits that employers may offer to employees (e.g., paid leave ordinances);
- Prohibit employers from asking prospective employees about their salary history; or
- Regulate wage claims or wage collections.
The law does not prevent local governments from enacting or enforcing ordinances related to employment discrimination.
Wisconsin Enacts New Laws Loosening Restrictions On Child Labor
In 2018, Wisconsin Governor Scott Walker signed two laws that loosened restrictions on child labor. Children 15 years of age or older are permitted to work as lifeguards as long as the individual completes required training and an adult is present on the premises where the youth is working. Children of any age may now work for their parent or guardian’s business. Previously, the law required children to be at least 12 years old.