If you are a small business employer in Illinois, (even for those with only one employee), the following are five important 2020 employment law developments for you to know, understand and ensure your company is now following.
1) Employers are Required to Provide Annual Sexual Harassment Prevention Training
The Illinois Department of Human Rights ("IDHR") released a model training program for sexual harassment prevention, to comply with the Illinois Human Rights Act ("IHRA"). Under the IHRA, Illinois employers are required to provide annual sexual harassment prevention training to all employees by December 31, 2020, and thereafter on an annual basis. Although employers are encouraged to use the IDHR’s model program, the IHRA permits employers to conduct their own training, so long as it complies with or exceeds its minimum requirements.
Non-IDHR model training requires the following, at a minimum:
- an explanation of sexual harassment,
- examples of unlawful conduct,
- a summary of relevant federal and state laws including available remedies, and
- a summary of employer responsibilities for preventing, investigating, and correcting sexual harassment.
*There is a supplemental model program for the restaurant and bar industries as well.
*If your small business does not comply with the mandated annual sexual harassment training- your company will be subject to monetary penalties up to $5,000 for failure to provide adequate training.
2) The Illinois Human Rights Act Now Applies to "All" Employers Regardless of Size
Effective July 1, 2020, the Illinois Human Rights Act ("IHRA") defines “employer” as any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation.
Small business employers should note that this act previously applied to only those with 15 or more employees. So even if your business has just one employee, your business must comply.
The IHRA prohibits discrimination in Illinois with respect to employment, financial credit, public accommodations, and real estate transactions on the bases of race, color, religion, sex (including sexual harassment), national origin, ancestry, military status, age (40 and over), order of protection status, marital status, sexual orientation (including gender-related identity), unfavorable military discharge, and physical and mental disability.
3) Chicago’s Paid Sick Leave Ordinance Coverage Has Been Amended
On July 1, 2020, a number of significant changes to Chicago’s Paid Sick Leave Ordinance ("PSLO") became effective. The changes include: expanded coverage, new notice and record-keeping requirements, and new complaint procedures.
- The definition of “employer” is now defined as a person who employs at least one or more employees in Chicago. The definition no longer requires that the employer maintain a physical presence in Illinois or be subject to at least one of Chicago’s licensing requirements.
- The definition of a “covered employee” now excludes outside salesmen, members of religious organizations, students employed by accredited Illinois colleges or universities, motor carriers regulated by the U.S. Secretary of Transportation or the State of Illinois, and domestic workers.Therefore, unless an employee falls under one of the above exclusions, the employee is covered and eligible for paid sick leave as provided by the Chicago ordinance (e.g.; if in any two-week period—the employee performs at least two hours of work for an employer while physically present in Chicago and worked at least 80 hours in any 120-day period).
New Notice & Record Keeping Requirements:
- The ordinance now includes new stringent notice and record keeping requirements.
Another Option for an Employee to File a Complaint:
- The Chicago Department of Business Affairs and Consumer Protection ("BACP") rules permit a covered employee to file a complaint with BACP if the employee has been denied requirements under the PSLO. Previously, such complaints were permitted only where an employee was not granted paid sick leave.
Your company should evaluate current policies and practices regarding sick time, vacation time, paid time off, and leave under the Family and Medical Leave Act to ensure it is compliant with federal, state, and local laws.
4) There is a New COVID-19 Anti-Retaliation Ordinance
The Chicago City Council has passed a new COVID-19 Anti-Retaliation Ordinance which applies to employers that maintain a business facility within Chicago’s geographic boundaries or are subject to at least one of Chicago’s licensing requirements.
This ordinance protects employees from adverse employment actions based on - if they:
- stay at home to obey public health orders,
- comply with a healthcare provider’s order to stay home, or
- stay home to care for individuals who have been ordered to stay at home.
If an employee feels that this ordinance has been violated that employee can file a civil action against the company seeking:
- reinstatement to the same or similar position before the retaliatory action,
- damages equal to three times the full amount of wages that would have been otherwise owed, and
- actual damages, attorneys’ fees, and costs.
Employers that violate the ordinance are also subject to an action from the Commissioner of the City’s Department of Business Affairs and Consumer Protection.
This ordinance does allow an employer to “cure” a misstep if it can demonstrate that it relied on a reasonable interpretation of an order, and cured the violation within 30 days of learning about it.
5) Employers With at Least One Adverse Judgment or Administrative Ruling Must Disclose Certain Judgement/Rulings to the Illinois Department of Human Rights (“IDHR”).
Under the IDHR guidance - as of July 1, 2020 - employers with at least one adverse judgment or administrative ruling must disclose to the IDHR the total number of final, non-appealable judgments or rulings against the employer in which there was a finding of sexual harassment or unlawful discrimination.
The reporting deadline for the 2019 calendar year is October 31, 2020, and the deadline for subsequent years will be July 1.
This requirement applies to:
- “any person employing one or more employees in Illinois,” so there is no exemption based on the number of employees.
- employers’ judgments and rulings outside of Illinois - so there is no requirement that the employer have a physical presence in Illinois.
No filing is required if:
- the employer received no such judgments or rulings in the prior year.
Reporting & reporting form:
- The IDHR provides a reporting form that can be submitted by email or mail.
- Additionally, although employers are not required to report settlements as part of their annual disclosures, the IDHR may request information regarding settlements as part of an investigation into a charge of discrimination.
If your company does not comply it is subject to monetary penalties of up to $5,000 for non-compliance.
As recent developments have shown - many Illinois employment laws are now applicable to most small businesses - even those that have only one employee! So make sure that your small business stays up to date and continues to be mindful of Illinois employment law developments. The risk of non-compliance can be disruptive and devastating to large companies and even worse for smaller businesses.