June 6, 2023, 0 Comments
Mid-Year Check-In. How is it Going With the 2023 Illinois Employment Law Changes? What Trends Should We Watch?
Illinois employers faced several new labor requirements at the beginning of the year. Since then, some new requirements have been or will be enforced. Plus, there are a host of other regulations that employers should be watching. If you’re a multi-state employer, you’ll also need to be aware of the laws in local jurisdictions outside of Chicago or Illinois. It’s a lot to keep up with, so we’re providing a quick overview of the changing landscape.
New Requirements Effective January 1, 2023
- CROWN Act: As of January 1, 2023, the Illinois Human Rights Act’s (IHRA) definition of “race” has been amended to include “traits associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists.” The amendment is called the CROWN Act, which stands for Create a Respectful and Open Workplace for Natural Hair.
- Family Bereavement Leave Act: The Illinois Family Bereavement Leave Act (FBLA) also took effect on January 1, which amended and expanded on the existing Child Bereavement Leave Act (CBLA). Under the CBLA, employees could take up to 10 workdays of unpaid leave related to the death of their child. The FBLA expanded the reasons for leave to now include the death of the employee’s child, stepchild, spouse, domestic partner, sibling, parent or stepparent, mother- or father-in-law, grandchild, or grandparent.
- One Day Rest in Seven Act Amendment: Illinois also amended its “One Day Rest in Seven” Act (ODRISA), greatly modifying day of rest compliance requirements for employers throughout Illinois, as well as meal breaks. Employers must post these new rules where other such notices are normally kept.
- Illinois Equal Pay Act Update: Larger Illinois employers should also pay careful attention to the new requirements under the Illinois Equal Pay Act (IEPA). Employers (1) with at least 100 employees in Illinois and (2) that are required to file an Annual Employer Information Report (EEO-1) with the federal Equal Employment Opportunity Commission (EEOC) must submit an application to IDOL to obtain an Equal Pay Registration Certificate (EPRC).
Source: Perkins Cole LLP
New Requirements Effective Mid-Year and into the Fall of 2023
- COVID-19 EEOC issued May 15, 2023: the U.S. Equal Employment Opportunity Commission (“EEOC”) issued key updates to its COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” For a more detailed review of the EEOC’s technical assistance, click here.
- Federal Pregnancy Workers Fairness Act Takes Effect June 2023: Besides the CROWN Act noted above, the list of protected classes is growing. This includes pregnancy protections. In late December 2022, the Protections for Nursing Mothers (PUMP) Act took effect, expanding protections for nursing employees under the FLSA. Even more, the federal Pregnancy Workers Fairness Act will take effect this June, requiring employers to provide reasonable accommodations for workers with known limitations connected to pregnancy, childbirth, or related medical conditions. Source: Perkins Cole LLP
- Enhanced Chicago Sexual Harassment Training: The City of Chicago imposed additional training requirements when it amended its Human Rights Ordinance in 2022. The amendments apply to all employers who maintain a business facility in Chicago or that are otherwise subject to Chicago’s licensure requirements. All employees must be trained on or before June 30, 2023.
- End of I-9 Virtual Review Takes Effect August 30, 2023: If you virtually inspected I-9 work authorization documents during the COVID pandemic, you are required to physically inspect those documents by August 30th, 2023! Download this guide from Workbright to understand if these changes apply to your organization and important dates.
Trends to Watch
Besides what is listed above, employers will need to be aware of trends that are shaping labor and employment law:
- Use of AI Tools in Talent Acquisition and Employee Performance Management: Nearly 1 in 4 organizations use artificial intelligence HR tools, according to a 2022 survey from the Society for Human Resource Management. In its recently proposed “Strategic Enforcement Plan,” the EEOC makes clear that it will target employers using HR software, including programs that incorporate algorithmic decision-making in recruitment, selection, or production and performance management tools. Illinois was the first in 2020 to regulate the use of automated decision tools in hiring interviews. Source: Kelley Drye & Warren LLP
- Unions: Employers with unions should already be familiar with the NLRB and the requirements of the NLRA. However, be aware that unions are becoming more active and are looking now to organize pockets of the workforce who may not be unionized yet. Employers without unionized employees should watch out for new union organizing and upcoming rulings from the NLRB impacting all employees, not just those already unionized. Source: Kelley Drye & Warren LLP
- Pay Transparency: Pay transparency has become a hallmark of the Equal Pay movement. With legislatures around the country enacting a patchwork of new restrictions and obligations, this is becoming a potential landmine for multi-state employers. Illinois requires some employers to submit their pay data to state agencies. On the federal level, the EEOC has also established pay equity as a main enforcement priority. Expect pay transparency issues to be a major focus to come. Source: Kelley Drye & Warren LLP
- Employee Privacy/Biometric Data: Illinois was the first state to directly regulate biometric data as a consumer (and employee) privacy matter. Biometric data includes a host of services that rely on fingerprints, facial scans, and voice recognition to do things like verify an employee’s identity, launch automated assistants, access events, or track time. Biometric tools can be very valuable in the workplace, but compliance with related privacy laws is also a challenge. The best advice is to seek good privacy counsel, as this is an area of the law which has become increasingly complex and specialized. Source: Kelley Drye & Warren LLP
- Severance Agreements and the McLaren Macomb Decision: A recent memorandum from National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo provided her perspective on a number of questions employers have been asking after the McLaren Macomb decision was issued in March 2023. The good news – employers are not prohibited from entering into severance agreements with their employees. The bad news – many of the severance agreements employers have used for years when terminating an employee will now be deemed illegal by the General Counsel. Read more from Benefits Pro here. Source: Benefits Pro
According to Perkins Cole LLP, “Employers are encouraged to review their policies and hiring processes to ensure they are compliant with these new requirements. These amendments/requirements provide an opportunity for employers to train supervisors and employees regarding equal employment opportunity (EEO) compliance. In short, employers will likely need to contend with a growing number of state laws on this issue, compounded by complexities of advertising remote work across several jurisdictions.”
As a reminder, you can find your employment laws posters for 2023 here.
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PS – In July, we’ll share our latest Salary Survey. Be on the lookout!