Significant New Employment Laws
With the impending arrival of the New Year, employers have several things to think about, including some new laws.
Illinois Equal Pay Act
The Illinois Equal Pay Act goes into effect on January 1, 2004. The new law mirrors the Federal Equal Pay Act of 1963, but also expands it by covering more workers, offering improved enforcement procedures, enhancing public awareness, and assisting employers to eliminate pay discrepancies.
The Illinois Equal Pay Act prohibits employers with four or more employees from paying unequal wages to men and women for doing the same or substantially similar work requiring equal skill, effort, and responsibility under similar working conditions for the same employer. There are exceptions if the wage difference is based upon a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or factors other than gender. Employers who violate the Act will be required to make up the wage difference to employees and may have to pay their legal fees. They will also be subject to fines of up to $2,500 per violation. Employers must post a notice summarizing the requirements under the Act.
Whistleblower Protection
Effective January 1, 2004, the Illinois "Whistleblower Reward and Protection Act" prohibits all Illinois employers (except governmental entities) with one or more employees from retaliating against employees (1) for disclosing information to the government or a law enforcement agency concerning a violation of law, rule, or regulation, or (2) refusing to participate in an activity that would violate a law, rule, or regulation, where the employee has reasonable cause to believe that the information discloses a violation of a State or Federal law, rule, or regulation. An employee may bring a civil action against his or her employer for all relief necessary to make the employee whole, including reinstatement, back pay with interest, compensation for damages sustained (including litigation costs, expert witness fees, and reasonable attorneys' fees).
Victims' Economic Security and Safety Act
The Victims' Economic Security and Safety Act ("VESSA") took effect on August 25, 2003 and provides that covered employers may not discharge, discriminate or retaliate against an employee who is a victim of domestic violence or who has a family or household member who is a victim of domestic violence, for taking up to a total of 12 work-weeks of unpaid leave from work during any 12-month period to seek medical attention or counseling for injuries or psychological trauma, obtain victim services, relocate, seek legal assistance or participate in a related court proceeding. A covered employer is the State or any agency of the State; any unit of local government or school district; or any person that employs at least 50 employees. Employers must maintain in strict confidence information provided to them in connection with VESSA leave, including that an employee has requested or obtained VESSA leave. During a leave covered by VESSA, the employee is not required to continue to contribute to health insurance premiums, but the employer must continue to provide group health plan benefits. It appears that the Illinois legislature wanted to limit a leave covered by both VESSA and the Federal Family Medical Leave Act of 1993 (the "FMLA"). VESSA does "not create a right for an employee to take unpaid leave that exceeds the unpaid leave time allowed under, or is in addition to the unpaid leave time permitted by," the FMLA.
An employee who takes VESSA leave must be restored to his or position or to an equivalent position with equivalent employment benefits and pay and other conditions of employment. A restored employee is not entitled to (1) the accrual of any seniority or employment benefits during any period of leave, or (2) any right, benefit, or position of employment other than that to which the employee would have been entitled had the employee not taken the leave. Employers may have to reasonably accommodate employees under VESSA, unless doing so would impose an undue hardship.
There are a number of ambiguities in VESSA, such as the interplay between the FMLA and VESSA, and whether an employer is covered if it employs 50 employees, but not all of them work in Illinois. Clarifying rules are due in early 2004. For the same reasons that employers have an FMLA policy, employers should consider adopting a VESSA leave policy. In any event, Employers must post a notice summarizing the VESSA requirements.
New Minimum Wage Levels
When an employee is subject to both Federal and State minimum wage laws, the employee is entitled to the higher of the two minimum wages. The current Federal minimum wage level is $5.15 per hour. Effective January 1, 2004, the minimum wage in Illinois increases to from $5.15 to $5.50 an hour (from $4.65 to $5.00 an hour for those under 18). Effective January 1, 2005, the Illinois minimum wage bumps up to $6.50 an hour ($6.00 per hour for those under 18). Effective January 1, 2004, the minimum cash wage for tipped employees ages 18 and over increases from $3.09 per hour to $3.30 per hour. The maximum tip credit for tipped employees (ages 18 and over) increases from $2.06 to $2.20 per hour.
New English Only Work Rules
Effective January 1, 2004, an amendment to the Illinois Human Rights Act makes it unlawful for employers to restrict an employee's right to speak languages other than English when the communication is unrelated to the employee's duties. With certain exceptions, the Act applies to all employers with 15 or more employees.
New Employment Application Requirement
The Criminal Identification Act will prohibit an employer from considering expunged or sealed records of conviction or arrest when making employment decisions. Effective January 1, 2004, employment applications must contain specific language stating that an applicant is not obligated to disclose sealed or expunged records of conviction or arrest. Employers may not ask if an applicant has any such records.
New Law on Temporary Employees
Under the Day and Temporary Services Act, Illinois employers are now prohibited from entering into contracts for temporary workers with an agency that is not registered with the Illinois Department of Labor. The Department of Labor is required to provide a list of registered agencies upon an employer's request and to post that list on the Internet.
Funkhouser Vegosen Liebman & Dunn Ltd. publishes updates on legal issues and summaries of legal topics for its clients and friends solely for general informational purposes. They do not constitute legal advice, nor are they intended as a substitute for obtaining legal or other professional advice based upon specific factual circumstances or issues. We welcome comments or questions. If we can be of assistance, please call or write Jon Vegosen, 312.701.6860, jvegosen@fvldlaw.com, Sharon Beth-Halachmy, 312.701.6875, sbeth-halachmy@fvldlaw.com, or consult with your regular FVLD contact.