By: Sally A. Piefer

Last week, the Illinois Governor signed legislation which amends three Illinois laws which will impact employers with operations in Illinois.

Criminal Conviction Information

As of March 23, 2021, employers in Illinois may not use a criminal conviction (felony, misdemeanor, probation, or imprisonment) as a basis for making employment decisions—unless (1) there is a “substantial relationship” between the conviction and the job, or (2) where the conviction poses an “unreasonable risk” to property, or to the safety or welfare of specific individuals, or the general public. Employers who are contemplating employment decisions using these exceptions must consider the following six factors:

• The length of time since the conviction;
• The number of convictions in total the individual has;
• The nature and severity of the conviction, and its relationship to the safety and security of others;
• The facts or circumstances surrounding the conviction;
• The age of the individual at the time of the conviction; and
• Evidence of rehabilitation efforts.

Employers must document their efforts to evaluate each factor before making an employment decision.

In addition, if you intend to use a conviction record to make an employment decision, the law requires that you engage in an “interactive assessment” by notifying the individual in writing of the potential use of the conviction record. This written notice must provide detailed information about the potential employment decision being contemplated due to the conviction and must further give the applicant or employee an opportunity to respond and provide additional information before the employer makes a final decision. The employee (or applicant) has 5 business days to provide the response. If the employer still decides to take adverse employment action, the employer has to provide a second notice which describes the employer’s reasoning for the employment decision and it must notify the individual of his/her right to file a complaint with the Illinois Department of Human Rights (IDHR) if the individual disagrees with the employer’s use of the conviction record.

The requirements of the new law are very similar to the requirements employers must follow under the Fair Credit Reporting Act (FCRA). Employers who have operations in Illinois should analyze their policies and procedures and should make sure they are following the law and seeking counsel before withdrawing an employment offer or otherwise taking adverse action against an employee because of a criminal conviction.

Expanded Whistleblower Retaliation Protections for Employees

Effective March 23, 2021, the new law also allows employees to sue employers for certain whistleblowing activities. Specifically, the law, which amends the Illinois Equal Pay Act, prevents employers from retaliating against an employee who engages in the following:

1. discloses or threatens to disclose to a supervisor or to a public body any activity, inaction, policy, or practice the employee reasonably believes violates a law, rule, or regulation, or
2. assists or participates in a proceeding to enforce the Equal Pay Act.

Retaliation is defined broadly in the new law and includes simply issuing a “reprimand” to the employee.

Furthermore, to prevail on a claim, the employee (or former employee) need only establish that his/her whistleblowing activity was a “contributing factor” to the employment decision. An employer may defend against such a claim by showing through “clear and convincing evidence” that it would have made the same decision in the absence of the employee’s protected activity. A prevailing employee can obtain reinstatement, double back pay (with interest), and attorney’s fees and costs.

Equal Pay Certification

Employers with 100 or more employees in Illinois must now obtain an “equal pay registration certificate” from the state and provide EEO-1 type reporting to the state (or certify that it is exempt).

Employers will have until March 2024 to obtain the equal pay registration certificate from the Department of Labor (DOL). The certificate has a $150 filing fee, and renewals will be required every 2 years. The certificate requires the following acknowledgements:

• The employer is in compliance with Title VII of the Civil Rights Act of 1964, the federal Equal Pay Act, the Illinois Human Rights Act, the Illinois Equal Wage Act, and the Illinois Equal Pay Act;
• The employer’s average compensation for female and minority employees is not “consistently below” the average compensation for male and non-minority employees within each major job category in the employer’s EEO-1 report;
• The employer does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
• Wage and benefit disparities are corrected when identified to ensure compliance with the state and federal law;
• How often wages and benefits are evaluated to ensure compliance with applicable state and federal laws; and
• Whether the employer, in establishing wages and benefits, uses any of the following: (a) a market pricing approach; (b) state prevailing wage or union contract requirements; (c) a performance pay system; (d) an internal analysis; or (e) another approach used to determine what level of wages and benefits are paid to employees (if another approach is used the employer must describe the approach).

Employers who do not obtain an equal pay registration certificate, or in cases where the certificate is revoked or suspended following an investigation or audit, will be assessed a penalty of 1% of the employer’s gross profits.

Employers should begin evaluating now whether they could obtain an equal pay registration certificate and, if not, what steps will be necessary to obtain the certificate prior to March 2024.

New EEO Reporting Requirements

Finally, employers who are currently required to file federal EEO-1 reports will be required, as of January 1, 2023, to also file with the Illinois Secretary of State “substantially similar” data relating to employees’ gender, race, and ethnicity. Be advised that the Secretary of State intends to publish data on gender, race and ethnicity of each employer’s employees on its website.

Next Steps

With all of these changes, employers should begin evaluating policies and procedures currently being used and determine whether changes must be made. Employers will also need to determine whether HR and supervisors or managers need to be trained in connection with the new whistleblower and criminal conviction laws in order to minimize unnecessary lawsuits.

If you have questions about these new laws, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.