As the year draws to a close, Illinois employers should take note of three new state employment laws effective on January 1, 2015. Here’s an overview of the laws and actions that employers should take to implement them.
“Ban-the-Box” Law limits ability to ask applicants about criminal background
The Job Opportunities for Qualified Applicants Act, commonly known as a “Ban the Box” law, limits an employer's ability to request or review an applicant’s criminal history early in the hiring process. This law applies to private sector employers with 15 or more employees in the current or preceding year.
Under this law, an employer may not inquire into or consider the criminal record or criminal history of a job applicant until the employer determines that the applicant is qualified for the position and either:
- Selects the applicant for an interview; or
- If there is not an interview, makes a conditional offer of employment to the applicant.
The Act contains a number of exceptions, including where federal or state law requires the exclusion of applicants with certain criminal convictions. Employers who do not comply with the Act are subject to monetary penalties from the Illinois Department of Labor, but the Act does not provide applicants’ with a private cause of action.
Employers should note that Illinois’ “Ban-the Box” law addresses the timing and manner by which they may lawfully obtain information about applicants' criminal history. It does not, however, prohibit employers from obtaining criminal background information or from making legal employment decisions based on criminal history. Of course, it is important to consider the EEOC’s guidance on the use of applicants' criminal histories when making decisions based on criminal background.
Necessary employer actions
Employers should review their application process, and specifically employment applications, to ensure that criminal background questions are now being asked at the correct point in the process.
New Pregnancy Discrimination Law
The Pregnant Workers Fairness Act (“PWFA”) establishes new protections for pregnant applicants and employees in Illinois. All Illinois employers with at least one employee are subject to the new requirements as of January 1, 2015. The PWFA requires Illinois employers to provide reasonable accommodations to employees and applicants experiencing “pregnancy, childbirth or related or common conditions related to pregnancy and childbirth.”
The PWFA requires an interactive process between the employer and the employee or applicant to determine a reasonable accommodation for a pregnancy-related condition.
- The PWFA specifically prohibits an employer from requiring the applicant or employee to accept an accommodation selected by the employer if the parties are unable to agree on an accommodation or to take a leave if another accommodation is available that would permit the employee to continue working.
- Employers are permitted to obtain documentation from the applicant’s or employee’s healthcare provider regarding the need for a pregnancy-related accommodation. However, the employer’s request for information is limited to the medical justification for the requested accommodation, a description of the accommodation that is medically advisable, the date the accommodation became medically advisable, and the probable duration of the accommodation.
- The PWFA provides that where a leave is granted as a reasonable accommodation the employer must reinstate the employee to her original or an equivalent position with equivalent pay and with accumulated seniority and full-credit for retirement and all other fringe benefits regardless of the length of leave, unless the employer can demonstrate that such reinstatement would impose an undue hardship.
- Under the law, it is unlawful to discriminate or retaliate against an employee or applicant for requesting an accommodation.
Necessary employer actions
The PWFA imposes a number of affirmative “notice” type obligations on covered Illinois employers:
- Employers must post a notice prepared by the Illinois Department of Human Rights where notices to employees are customarily posted. The notice can be found on the Department’s website.
- The PWFA notice must be included in any employee handbook or manual distributed to employees by the employer.
Employers should review their employment policies and procedures to ensure compliance with the new law and train HR personnel supervisors, and managers on these new requirements.
New Payroll Debit Law
January 1, 2015 is also the effective date of amendments to the state’s Wage Payment and Collection Act (“the Act”) that clarify that payroll debit cards are a permissible means of paying employees under Illinois law – if certain requirements are met.
Permissible payroll cards must, among other requirements:
- Provide “clear and conspicuous written disclosure” that payment by payroll debit card is voluntary and list at least one other method of payment available to the employee;
- Provide employees with an itemized list of paycard fees that may be charged by the payroll debit card’s issuer and written notice that third parties may assess transaction fees in addition to the fees assessed by the paycard’s issuer;
- Explain in writing how the employee may – without incurring fees – obtain all wages at least once per pay period and at least twice per month, have unlimited telephonic access to the account balance, and obtain at least one paper or electronic transaction history per month; and
- Not use a paycard that charges fees for certain specified items, including point-of-sale transactions.
Necessary employer actions
Employers planning to implement wage payment by paycard should ensure that they have prepared required notices and meet the other requirements to comply with the new law.
To ensure compliance with these new laws, Illinois employers should update their hiring, employment, and payroll practices by January 1, 2015.