Tag: Illinois Human Rights Act

Recent Changes in Illinois Law Will Place Additional Burdens on Employers

In 2018, Governor Bruce Rauner signed into law a number of changes that are already in effect or will go into effect starting January 1, 2019. As with each New Year, it is important to reflect on those changes and how they impact your business.

Amendments to the Illinois Wage Payment and Collection Act

As of January 1, 2019, all employers will be required to reimburse its employees “for all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” 820 ILCS 115/9.5. The act defines “necessary expenditures” as “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.”

To be reimbursed the employee shall submit a request for reimbursement, along with all appropriate supporting documentation within 30 days. This deadline can be extended pursuant to a written expense reimbursement policy. If the employee does not have supporting documentation, a signed statement regarding the expense will be sufficient.

Employees, however, will not be entitled to such reimbursements if: (1) the employer has an established written expense reimbursement policy and (2) the employee failed to comply. In addition, an expense need not be reimbursed unless it was authorized by the employer or was authorized pursuant to a written expense reimbursement policy. The employer may also put limits or caps on its reimbursement policy provided it is not de minimis or eliminates any reimbursements.

What Should Employers Be Doing? Work with your Illinois Employment Labor attorneys to do an annual review and check of your policies regarding expense reimbursements. It will be critical for all employers to have a policy so that there is adequate cost containment. Many employers will need to evaluate reimbursing its employees for cell phones, gas, and other expenditures they are required to incur for purposes of performing their job.

Nursing Mothers Must be Paid

As of August 21, 2018, nursing mothers in Illinois within one year after the child’s birth must be given “reasonable break time” to express milk and an employer “may not reduce an employee’s compensation for time used for the purpose of expressing milk or nursing a baby.” 820 ILCS 260/10.

What Should Employers Be Doing? Review your handbooks and policies to ensure new mothers understand that they are entitled to express milk as needed and that they are not being docked any pay for doing so.

Amendments to the Illinois Human Rights Act

On August 24, 2018, the Illinois Human Rights Act (“IHRA”) was amended in three meaningful ways. Some of the changes went into effective immediately, while others go into effect on January 1, 2019.

1. The amendments extended the deadline to file a charge of civil rights violations from 180 days to 300 days from the date of the alleged violation of the IHRA. The EEOC and IHRA deadline requirements are now the same in Illinois.

2. As of January 1, 2019, the Illinois Human Rights Commission composition will change from 13 part-time members to 7 full time members. This is expected to expedite matters before the Commission and reduce the number of cases pending before the Commission.

3. The Illinois Department of Human Rights (“IDHR”) is required within 10 days of a new charge, to notify the complainant that they have the right to opt-out of the investigation process and immediately receive the right to file a suit in circuit court. Once granted by the IDHR, the complaint must file suit within 90 days in circuit court.

What Should Employers Be Doing? Employers should expect a steady increase in claims filed before the IDHR. Previously, if an employee filed at the EEOC after 180 days it was not concurrently filed at the IDHR. So long as it is timely filed before the EEOC it will also be timely filed before the IDHR. Additionally, charges that are dismissed quickly at the EEOC may still be pursued at the IDHR that would have otherwise never been refiled.

The opt-out procedures will lead to aggressive plaintiff attorneys avoiding the investigation process entirely and filing suit as quickly as possible, increasing costs and the burden to defend these claims. Employers should continue to work closely with counsel to evaluate all terminations and be prepared to defend any claims that may get filed quickly in state court.

Levin Ginsburg has been working with employers for approximately 40 years to help them protect their businesses. If you have any employment or other business related issues, please contact us at 312-368-0100 or email Walker Lawrence at wlawrence@lgattorneys.com

The New Illinois Pregnancy Accommodation Act: What Employers Need to Know

The Illinois Pregnancy Accommodation Act (“IPAA”), which became a law on January 1, 2015, amended the Illinois Human Rights Act and heightened the duty of all Illinois employers to reasonably accommodate job applicants and employees affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth including probationary and part-time employees.

It is now a civil rights violation for Illinois employers to: (i) not make reasonable accommodations for any medical or common condition of an applicant or employee related to pregnancy or childbirth; (ii) deny employment opportunities or deny medical benefits to or take adverse action against an otherwise qualified job applicant or employee if the denial adverse action is based on the need of the employer to make reasonable accommodations to the known medical or common conditions related to the pregnancy or childbirth of the applicant or employee; (iii) require a job applicant or employee to accept an accommodation when she did not request and chooses not to accept one; (iv) require a job applicant or employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided; or (v) refuse to reinstate employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position with equivalent pay and benefits upon her signifying her attempt to return or when her need for reasonable accommodation ceases.

The IPAA sets forth an extensive list of possible accommodations for pregnant employees including (without limitation): more frequent or longer bathroom breaks; breaks for increased water intake and periodic rest; private non bathroom space for expressing breastmilk and breast feeding; feeding; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; provision of an accessible worksite; acquisition or modification of equipment; job restructuring; part-time or modified work schedules; appropriate adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.  Prior to the IPAA, employees affected by pregnancy would not otherwise be entitled to many of the statutes list of possible accommodations.

The IPAA permits an employer to deny a request for pregnancy accommodations only where granting it would present an undue hardship.  To succeed with the undue hardship defense under the IPAA, an employer must demonstrate that the nature and cost of the accommodation, the overall financial resources and size of the employer, the type of operations the employer is engaged in, and the impact the accommodation would have upon overall operations are such that the accommodations substantially impacts the ordinary operations of the business.  Significantly, the IPAA provides for a rebuttable presumption that an accommodation will not impose an undue hardship if the employer provides or must provide a similar accommodation to non-pregnant employees otherwise entitled to an accommodation.

Similar to the Americans with Disability Act, the IPAA mandates that the employee and employer engage in an “interactive process”, which requires, at a minimum, that the employer and employee “engage in a timely, good faith, meaningful exchange to determine the effective reasonable accommodation.”

We help businesses navigate the complications and confusing interactive process to ensure compliance with the IPAA when dealing with employees affected by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth.

If you have any questions in this area, please contact:

Mitchell S. Chaban at:

mchaban@lgattorneys.com or 312-368-0100.

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