2018 Illinois, Indiana, And Wisconsin Employment Law Year In Review – Employment and HR – United States – Mondaq News Alerts


Illinois

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

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

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.

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