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Changes In Illinois Employment Law

Tuesday, October 15, 2024 9:00 AM | Anonymous member (Administrator)

The following are state law updates that Illinois employers need to be aware of. Unless otherwise noted, the changes are effective January 1, 2025.

Enhanced Workplace Rules for Minors Under 16

  • Employers are required to obtain an employment certificate authorizing a minor’s work. To obtain a certificate, an employer must first provide the minor with a notice of intention to employ, which then must be submitted by the minor to their school’s issuing officer, along with an application for the employment certificate, which must be filled out by the minor and their parent or guardian.
  • Employers must maintain, for at least the duration of the minor’s employment at the premises, the minor’s employment certificate, plus records that include the minor’s name, date of birth, address, and the notice of intention to employ the minor at the premises where the minor is performing the work.
  • In addition to the prohibited occupations found in the Federal Labor Standards Act, there are over 30 additional types of work that minors are prohibited from performing, including factory work and construction work.
  • All minors must be supervised in person by an adult 21 years of age or older at all times when the minor is working.

AI Added to Human Rights Act

  • The Illinois Human Rights Act has been amended by adding certain uses of artificial intelligence (AI), including generative AI (GenAI), to the long list of actions by covered employers that could constitute civil rights violations.
  • The amendments will take effect January 1, 2026, and add two new definitions to the law.
  • According to the amendments, AI means “a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.”
  • The definition of AI includes GenAI, which has its own definition: “an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following: 1) textual outputs, such as short answers, essays, poetry, or longer compositions or answers; 2) image outputs, such as fine art, photographs, conceptual art, diagrams, and other images; 3) multimedia outputs, such as audio or video in the form of compositions, songs, or short-form or long-form audio or video; and 4) other content that would be otherwise produced by human means.”
  • According to the amendments, covered employers can violate the act in two ways. First, an employer that uses AI with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment and whose actions have the effect of subjecting employees to discrimination on the basis of protected classes under the act may constitute a violation. The same may be true for employers that use ZIP codes as a proxy for protected classes. Second, a covered employer that fails to provide notice to an employee that the employer is using AI for the purposes described above may be found to have violated the law.

Voluntary Use of E-Verify Prohibited

  • Illinois Gov. JB Pritzker has signed Senate Bill 0508 into law. This new law provides additional employment protections for individuals flagged by an employment eligibility verification system, including federal E-Verify, as having identification discrepancies.
  • SB 0508 clarifies an employee’s rights in the event of an E-Verify “no match.” The new law will prevent employers from imposing work authorization verification requirements that are greater than those required by federal law.
  • Illinois employers are no longer be permitted to voluntarily use employment eligibility verification systems – e.g.,  E-Verify –  to confirm the I-9 authentication process, unless required by federal law.

Amendments to the BIPA

  • Illinois Gov. JB Pritzker has signed Senate Bill 2979, which amends the Illinois Biometric Information Privacy Act (BIPA). The bill confirms that a private entity that more than once collects or discloses the same biometric identifier or biometric information from the same person via the same method of collection in violation of the BIPA has committed a single violation for which an aggrieved person is entitled to, at most, one recovery.
  • In addition, the bill also adds “electronic signature” to the definition of written release, clarifying that an electronic signature constitutes a valid written release under the BIPA.
  • The amendments take effect immediately.

Amendments to Temporary Workers Law

The Illinois Day and Temporary Labor Services Act has been amended for the third time in the last year. The amendments clarify employers' and staffing agencies' obligations on equal pay, notices, and more.

Equal-Pay Requirement

  • Amount of work: The amendments clarify the amount of work that entitles a temporary laborer to equal pay. The original law stated the equal-pay requirement was effective once a temporary laborer had been "assigned" to a third-party client for 90 days. Equal pay is instead required after a temporary laborer "performs more than 720 hours of work in a 12-month period" for a third-party client, with the clock starting on April 1, 2024.
  • How to compute: The original law required equal pay to be determined using the rate of either (a) the third-party client's lowest paid, directly hired, similarly situated employee with the same or substantially similar seniority to the temporary laborer; or (b) the lowest paid, directly hired employee with the closest level of seniority to the temporary laborer (the "comparator"). The amendments still allows this "comparator" method, but as another alternative, for temporary laborers to be paid the median wages: of workers working in the same or a substantially similar job classification, as reflected in the detail level of the most recent Standard Occupational Classification System published by the United States Department of Labor's Bureau of Labor Statistics [BLS], in the same metropolitan area or non-metropolitan area of Illinois where the work is performed, as reflected in the most recent Occupational Employment and Wage Statistics Survey. Under this new option, once a temporary laborer has worked for the third-party client for 4,160 hours during a 48-month period, the required wages then increase from the median to the 75th percentile in the BLS data.

Responsibility for Determining Equal Pay

The amendments also clarify that it is the temporary staffing agency's responsibility to determine the amount of equal pay due, based on information provided by the third-party client, and to pay the temporary laborer correctly.

Collective Bargaining Agreement Exemption

Under the amendments, the equal-pay provision does not apply if the "comparator" employees (the third-party client's directly hired employees) are covered by a valid collective bargaining agreement.

Equivalent Benefits

The IDTLSA purports to entitle temporary laborers to a certain level of benefits after assignment to a third-party client for a certain amount of time. However, the provision remains enjoined and not in effect. The Illinois Department of Labor has appealed that decision. The case is pending before the U.S. Court of Appeals for the Seventh Circuit.

Amendments to Non-Compete Law

  • The first amendment renders any covenant not to compete or covenant not to solicit entered into after January 1, 2022, unenforceable with respect to professionals licensed in Illinois who provide mental health services to veterans and first responders.
    • The second amendment provides that a covenant not to compete or not to solicit is void and illegal with respect to individuals employed in construction, regardless of whether an individual is covered by a bona fide collective bargaining agreement.
    • The amendments take effect immediately.

In the meantime, we are also monitoring two house bills that would further amend the Illinois Freedom to Work Act: HB 4888, which provides that a non-compete or a non-solicit is not enforceable if it restricts an employee's ability to exercise his or her rights under federal law, and HB 5385, which would void all non-competes and non-solicits, regardless of the employee's annual compensation. Both of these bills have been referred to the Rules Committee.

If dealers have any questions or concerns, we recommend they contact SESCO (a free CATA benefit) to ensure compliance.  For assistance, contact us at 423-764-4127 or by email at sesco@sescomgt.com

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