Upcoming Changes to Illinois Employment Laws

Over the summer, Illinois enacted several amendments to the state’s employment laws that will take effect January 1, 2020.

Sexual Harassment Training

All employers with Illinois employees must provide sexual harassment prevention training to their employees at least annually. The Illinois Department of Human Rights has advised that it will create a model training program for employers, but at the time of this article, it is not yet available. Alternatively, employers can use their own sexual harassment training program as long as it meets the state’s legal requirements. We can also create a training program for you that complies with Illinois’ legal requirements and is tailored to fit your industry, workplace culture, and mission.

Legalization of Recreational Marijuana

Organizations with employees in Illinois will confront a new legal landscape under the Cannabis Regulation and Tax Act, which declares marijuana a “lawful product” under Illinois state law. Under the new law, the use, possession, and cultivation of marijuana for medical or recreational purposes will be legal for adults age 21 and older. There are now 11 states that allow recreational use of marijuana and 33 states that allow marijuana use for medical purposes.

The expansion of marijuana legalization in Illinois dramatically affects employer drug-free workplace and testing policies. Under the new law, employers can still prohibit the use, storage, buying, and selling of marijuana at work; they can likewise prohibit employees from being impaired or under the influence of marijuana at work. If an employer has a good faith belief that an employee is impaired at work or while on call, the employee can be disciplined only if that belief is based on specific, objective symptoms. An employee must also be given an opportunity to contest the basis of the determination of impairment. Employers cannot take an adverse action against an employee for merely testing positive for marijuana while at work. Employers should be wary of pre-employment drug testing, employment testing without reasonable suspicion and zero tolerance policies. It is not yet clear if Illinois employers can terminate employees who refuse to submit to a drug test that is based on a good faith belief of impairment.

Please contact your partners at Lake Effect Human Resources & Law if you would like to discuss a customized sexual harassment training program for your organization, or if you would like us to review your workplace and drug testing policies to ensure they comply with Illinois’ new laws.

Coming Soon…Clarity on Tip Pools, Tip Credit, and Wages Paid to Tipped Employees

It feels right to share tips with those who support the servers, but is it legal? Currently, you cannot mandate that your tipped staff share their tips with other staff, such as hosts, dishwashers and bussers. But that may change soon for some hospitality employers. Last week, the federal Department of Labor (DOL) proposed a new regulation that, if enacted, will allow employers that pay their tipped employees the full minimum wage to include all staff in mandatory tip pools.

Under federal law, employers may pay tipped employees a reduced minimum wage of $2.13/hour, instead of $7.25/hour, by counting up to $5.12/hour of the employee’s tips toward the minimum wage requirement. This is a “tip credit.” If the DOL’s new rule on tip pooling is enacted, employers who do not claim a tip credit may include non-tipped workers, such as cooks and dishwashers, in mandatory tip pools. Tips must be re-distributed at least as often as wages are normally paid. The proposed new rule will continue to prohibit employers, including managers and supervisors, from keeping any portion of an employee’s tips, including from a tip pool.

The proposed rule will also effectively end the 80/20 rule, often called the 20% rule, and provide much needed clarity to employers about when they are required to pay the standard federal minimum wage of $7.25/hour to tipped employees. In 2011, the DOL enacted the 80/20 rule, under which employers are prohibited from taking the tip credit if the employee spends 20% or more time on non-tipped tasks, e.g. clearing tables, completing side work, making coffee, cleaning floors. The 80/20 rule has been difficult to administer and enforce, as is evidenced by the numerous lawsuits filed across the country challenging the rule.

In 2018, the DOL attempted to abandon the rigid 80/20 rule, however, courts have disagreed on whether it was effectively rescinded. The DOL’s regulations proposed last week will address the ambiguity. Under the proposed new rule, an employer may take the tip credit for any amount of time a tipped employee spends on non-tipped duties so long as those non-tipped duties are (1) related to the tipped duties and (2) are done at the same time as the tipped duties or within a reasonable amount of time before or after the tipped duties. The intent is to create a much more flexible system for calculating wages for tipped employees than the 80/20 rule.

The proposed rules are not yet final. They are open to public comment until December 9, 2019, at which time the DOL will analyze comments and proceed with the final rule-making process. The DOL does seem to be fast-tracking major initiatives in advance of the November 2020 election. We will continue to monitor the proposed regulations and keep you informed.

The attorneys and HR professionals at Lake Effect HR & Law are ready to assist and advise if you have questions related to federal or state labor regulations or your employee pay policies. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

Be Careful What You Ask For!

Over the years, most employers have become accustomed to asking for salary history during the interview or pre-screening process to determine if an applicant should move forward in the hiring process. Most employment applications also inquire about an applicant’s prior convictions. However, more and more state and local governments are adopting bans on employer inquiries into a job applicant’s pay and criminal history. Employers need to ensure their hiring practices are compliant, especially as recruiting crosses state lines.

Over 20 state and local governments have adopted pay history bans. Pay history bans are frequently rolled into a state or local government’s overarching equal pay laws. Such bans are aimed at addressing existing pay disparities – especially those adversely affecting women and people of color – by ensuring that employers base compensation decisions on employees’ qualifications, duties and responsibilities.

Pay history bans prohibit employers from inquiring about an applicant’s prior pay during the pre-employment process or considering that information when making interview, hiring, or compensation decisions. Other facets of the laws are designed to eliminate secrecy and promote transparency by prohibiting employers from restricting their own employees from disclosing their current pay to applicants or to one another in the workplace. Some of the new pay history bans also require employers to provide the applicable pay range upon request by an applicant or include the pay range with any job posting.

There has also been an expansion of criminal history bans, often called “ban the box” or “fair chance” laws. These bans, adopted by over 30 state and local governments to date, are meant to even the playing field and provide a second chance for individuals with an arrest or conviction record. Criminal history bans prohibit employers from requiring applicants to disclose if they have been convicted of a crime. The laws generally permit employers to inquire into a prospective employee’s criminal history after subsequent steps in the hiring process: after an initial screening but before an interview, after an interview, or after a conditional job offer.

These bans have not yet been adopted in Wisconsin, but they impact employers recruiting with national searches or for locations outside of Wisconsin, and they aren’t going away. It’s a good time to review your hiring policies and procedures to make sure that they comply with these legal requirements and reflect your organization’s culture, mission, and values.

The attorneys and HR professionals at Lake Effect HR & Law are ready to assist and advise if you have questions related to your recruiting and hiring policies and procedures in Wisconsin or other states. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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