The year 2020 ushers in a number of new laws for Illinois employers. Some laws go into effect this summer, while others became effective Jan. 1. For employers who have not yet revised handbooks, policies and agreements, the time is now.
Part 1 of this series summarizes some of the new laws now in effect; Part 2 will specifically discuss the Cannabis Regulation and Tax Act; and Part 3 will summarize some of the new laws slated to take effect later this year.
Illinois Human Rights Act amendments
Several amendments to the Human Rights Act are now effective. First, the act previously applied to employers with 15 or more employees, but now applies to any employer employing one or more persons.
Second, the definition of “unlawful discrimination” is expanded to include discrimination against a person because of his or her “actual or perceived” protected class characteristic.
Most employers are familiar with this concept in the Americans with Disabilities Act’s “perceived disability” definition. Similarly, the amendments expanded the definition of “harassment” to include unwelcome conduct on the basis of a person’s “actual or perceived” protected class characteristic that “has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile or offensive working environment.”
Third, the prohibition on harassment now includes independent contractors, consultants and anyone else performing services for the employer pursuant to a contract.
Fourth, every employer with employees in Illinois is required to provide sexual harassment prevention training on an annual basis to all employees.
Additionally, beginning July 1, employers will be required to disclose annually (by July 1 of each year) any adverse judgment or administrative ruling relating to unlawful harassment or discrimination against the employer in the preceding year.
Further, an employer may be required to disclose settlement information for any sexual harassment or unlawful discrimination claims, if required to do so by the state Human Rights Department.
Employers should update their employee handbooks and policies to comply with the amendments, prepare to provide sexual harassment training on an annual basis and discuss these legal changes with human resources personnel, supervisors and managers.
Artificial Intelligence Video Interview Act
Employers must obtain consent from applicants before using artificial intelligence to evaluate an applicant’s video interview and qualifications for the position.
The consent must notify each applicant before the interview that artificial intelligence may be used to analyze the applicant’s video interview and fitness for the position, and it must explain how the artificial intelligence works and the general types of characteristics it uses to evaluate applicants.
Employers are prohibited from sharing video interviews, except with persons necessary to evaluate an applicant’s qualifications, and employers must delete the videos within 30 days of an employee’s request.
Employers utilizing video interviews should ensure compliance with this law and provide the mandated notifications and explanations.
Victims’ Economic Security and Safety Act amendment
The act’s unpaid leave protections expanded to include victims of gender violence. “Gender violence” means the following: (i) one or more acts of violence or aggression satisfying the elements of any criminal offense under Illinois law that are committed, at least in part, on the basis of a person’s actual or perceived sex or gender, regardless of whether the acts resulted in criminal charges, prosecution or conviction; (ii) a physical intrusion or physical invasion of a sexual nature under coercive conditions satisfying the elements of any criminal offense under Illinois law, regardless of whether the intrusion or invasion resulted in criminal charges, prosecution or conviction; or (iii) a threat of an act described above causing a realistic apprehension that the originator of the threat will commit the act.
It is important for employers to update their employee handbooks and policies accordingly and to ensure appropriate personnel are informed about this law.
Workplace Transparency Act
Effective Jan. 1, this act prohibits certain provisions in employment agreements and separation agreements. With respect to settlement or termination agreements that include promises of confidentiality related to alleged unlawful employment practices, the agreement’s confidentiality provisions are valid and enforceable under these circumstances:
Confidentiality is the documented preference of the current, prospective or former employee and is mutually beneficial to both parties.
- The employer notifies the current, prospective or former employee in writing, of his or her right to have an attorney or representative of his or her choice review the settlement or termination agreement before execution.
- There is valid, bargained for consideration in exchange for the confidentiality.
- The settlement or termination agreement does not waive any claims of unlawful employment practices that accrue after the date of agreement’s execution.
- The employee is given a period of 21 calendar days to consider the agreement.
- The employee is given seven calendar days following execution to revoke the agreement.
Employers should examine their agreements to ensure compliance or risk invalidation of the confidentiality provisions.
The act also prohibits unilateral mandatory arbitration agreements which require employees to arbitrate claims of “unlawful employment practices,” which means any form of unlawful discrimination, harassment or retaliation that is actionable under Title VII, the Human Rights Act, or otherwise.
“Unilateral,” for purposes of the act, means any contract, agreement, clause, covenant or waiver an employer requires a current or prospective employee to accept as a non-negotiable material term to obtain or retain employment. A “mutual” arbitration agreement does not necessarily save an agreement without the inclusion of other provisions as set forth in the act.
This act provision may be challenged in court as pre-empted by the Federal Arbitration Act.
Thus, it is important employers ensure existing arbitration agreements contain Federal Arbitration Act language and consider the potential consequences of failing to provide for carve-outs or other requisite language as contemplated by the act.
In Part 2 next Thursday, we will discuss the Cannabis Regulation and Tax Act and its impact on employers’ decisions to discipline employees.