Ringing in the New Year -- Recap of Changes to Illinois Employment Laws in 2017

From workplace dress policies to collecting an employee’s fingerprints, as we wind down 2017, here’s a recap of new workplace laws—and helpful reminders—that affected Illinois employers this year:

Updates to the Illinois Human Rights Act Concerning Religious Garb Law

Effective August 11, 2017, an amendment to the Illinois Human Rights Act (IHRA) (Public Act 100-10), also known as the Religious Garb Law, made clear that an employer may have a dress code or grooming policy in the workplace. The policy may include restrictions on attire, clothing or facial hair to maintain workplace safety and food sanitation. For an employer to impose any employment condition that would require an employee or a prospective employee to violate or forego his or her sincerely held practice of religion (such as wearing any attire, clothing or facial hair in accordance with a requirement of his or her religion), an employer must engage in a bona fide effort to make an accommodation, and demonstrate that it is unable to reasonably accommodate the employee or prospective employee without undue hardship on the business.

The amendment to the IHRA did not impose any new obligations on employers. The requirement to consider reasonable accommodation with respect to an employee’s sincerely held religious beliefs and practices exists under federal law (i.e., Title VII) and the IHRA. The IHRA already prohibits an employer from discriminating against an individual on the basis of his or her religious beliefs. However, the amendment clarifies the scope of religious protections under the IHRA.

Employers should keep in mind:

• Religious accommodations can take many forms including attire, garments, facial hair, hairstyles, jewelry, etc.
• A religious accommodation should be considered on a case-by-case basis
• Concerns involving workplace safety, security or health concerns are often acceptable reasons for denying accommodation, however, these concerns do not always take precedence and other accommodations should be explored
• To comply with the IHRA notice requirements, posted notices and employee handbook information should summarize the requirements of the Religious Garb Law

Employers are encouraged to review their dress code and grooming policies, and accommodation practices to ensure compliance with Illinois and federal law.

Chicago Minimum Wage and Paid Sick Leave Ordinance and the Cook County Earned Sick Leave Ordinance

Effective July 1, 2017, Chicago and Cook County employers are required to provide workers with paid sick time to care for themselves or family members. This follows the January 1, 2017 enactment of the Employee Sick Leave Act in Illinois, which permits an employee to use existing “personal sick leave benefits” for family care purposes. The Ordinances provide that any Covered Employee who works in Chicago and Cook County, respectively, for at least 80 hours within a 120-day period is eligible for Paid Sick Leave (or “Earned” Sick Time as defined in the Cook County Ordinance).

Biometric Information Privacy Act

The Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14 et seq., enacted in 2008, gained steam in Illinois courtrooms in 2017, with dozens of class action lawsuits filed against private entities who collected their employees’ biometric identifiers for employment-related purposes, e.g., clocking in or for security purposes. BIPA defines “biometric identifiers” as a retina/iris scan, fingerprints, voiceprints, or a scan of hand or face geometry.

Recently, the Second Circuit rejected a plaintiff class’ allegation that a video game manufacturer violated the BIPA when it collected their biometric data without authorization. The plaintiffs claimed the manufacturer did not inform them of its biometric data retention schedule and did not use a reasonable standard of care to protect the data. The Second Circuit found no allegations that the defendant manufacturer lacked sufficient protocol, that its policies were inadequate or that it was unlikely to abide by its internal procedures. Accordingly the court found that the plaintiffs’ claim amounted to “only a bare procedural violation” as there was no material risk their biometric data would be misused or disclosed without their consent. This precedent provides Illinois employers with important guidance for limiting potential exposure arising from collecting employees’ biometric data.

Under Illinois law, employers may collect, store or use biometric identifiers and information from individuals but must do the following:

• Publish a written policy for retention and destruction of biometric identifiers and information. Under the BIPA, a private entity must dispose of biometric identifiers once the purpose for collecting it has been satisfied or within three years of the individuals last interaction with the entity, whichever occurs first
• Provide written notice to and obtain a written release from an individual before collecting or obtaining their biometric information or identifiers

After collecting this biometric information, employers must also:

• Use the industry’s reasonable standard of care when storing and transmitting this information
• Protect the biometric identifier or information in at least the same manner as other confidential and sensitive information
• Ensure biometrics identifiers and information are destroyed per the written policy

All employers operating in Illinois should consult with counsel regarding solutions and strategies for addressing compliance with the BIPA.

Updates to Illinois Right to Privacy in the Workplace Act

Effective January 1, 2017, a law that once prohibited employers only from asking about workers compensation benefits applied for or received now prohibits employers from:

• Asking, requiring or coercing employees or applicants to provide passwords or other related account information for accessing their personal online accounts
• Demanding access to employees’ and applicant’s personal online accounts
• Asking, requiring or coercing employees and applicants to authenticate or access their personal online accounts in employer's presence
• Requiring or coercing employees and applicants to invite employers to join groups affiliated with their personal online accounts
• Requiring or coercing employees and applicants to join employers' online accounts or add employers or employment agencies to contact lists for their personal online accounts
• Retaliating against an employee or applicant for refusing any of the above activities

The new regulation does not limit or prohibit an employer from:

• Creating or maintaining lawful workplace policies on the use of employees’ electronic equipment, including internet, social networking, website and email use. This includes policies addressing employees’ use of personal online accounts for business purpose; accessing or operating a personal online account during business hours, while on business property or connected to an employer’s network; or when using an employer-device
• Monitoring the use of such equipment and email
• Obtaining publicly available or otherwise lawfully accessed information about employees
• Complying with other state or federal laws
• Requiring an employee to share specific content reported to the employer to ensure compliance with the law or investigating allegations of a violation of law or work-related employee misconduct

Employers are strongly encouraged to review and update their social media policies addressing employees’ use of personal online accounts while on the job, inadvertent disclosures of employees’ personal online accounts, reporting violations under this Act and limited exceptions when an employer may request content sharing from an employee’s or applicant’s personal online accounts.

Updates to Illinois Victims’ Economic Security and Safety Act

Amendments to the Victims’ Economic Security and Safety Act (VESSA) became effective on January 1, 2017. The Act provides victims of domestic or sexual violence with unpaid leave to seek medical attention, obtain victim services or counseling for safety planning, or to seek legal guidance. VESSA previously provided eight weeks of unpaid leave to employees who work for an employer with 15-49 employees, and 12 weeks of unpaid leave to employees who work for an employer with 50 or more employees. The amendment now provides four weeks of unpaid leave to employees who work for an employer with 1-14 employees.

Illinois Freedom to Work Act

Effective on January 1, 2017, the Freedom to Work Act bans certain Illinois employers from entering into non-compete agreements with “low-wage employees” and declares such agreements “illegal and void”. A “low-wage employee” is defined as any employee who earns the greater of (1) the applicable federal, state or local minimum hourly wage (currently $7.25 per hour under federal law, $8.25 per hour under Illinois state law, or $11.00 per hour under Chicago ordinance (as of July 1, 2017)) or (2) $13.00 per hour. Therefore, non-compete agreements with employees making less than $13.01 are void.

The Act appears to restrict only non-competition clauses in agreements restricting “low-wage employees” from performing:

1. Any work for another employer for a specified period of time;
2. Any work in a specified geographical area; or 
3. Work for another employer that is similar to the low-wage employee’s work for the employer included as a party to the agreement.

Employers should ensure they are not requiring employees earning minimum hourly wage or less to enter into non-compete agreements. Employers should carefully consider the nature and extent of covenants they apply to their employees to ensure such covenants are appropriately tailored to protect employers’ confidential information and other legitimate business interests.

Breach of Restrictive Covenants

The question of whether noncompetition or nonsolicitation covenants are supported by adequate consideration continues to vary depending on whether the matter is decided by Illinois state or federal courts. Many Illinois state courts continue to require two years of continued employment as consideration to enforce a covenant against an at-will employee. In contrast, most federal courts have found that the two-year requirement is not a “bright line” test and engage in a case-by-case assessment to determine if the enforcement of a restrictive covenant is supported by adequate consideration. Notably in 2017, less than 11 days apart, Illinois state and federal courts took conflicting hard stances with respect to this issue:

• Stericycle, Inc. v. Simota, No. 16-c-4782, 2017 WL4742197 (N.D. Ill. Oct. 20, 2017): The district court held that enforcement of a non-compete supported by consideration of continued employment requires an individualized, case-by-case assessment, and is not subject to a bright-line rule. The court determined there was adequate consideration to support the restrictive covenant even though the employee worked only 11 months after signing a non-compete agreement

• Automated Indus. Mach., Inc. v. Christofilis, 2017 IL App (2d) 160301-U (2d Dist. Oct. 31, 2017): The trial court found inadequate consideration based on the two-year bright line rule. On appeal, the appellate court noted the “possibility” that the Illinois Supreme Court might ultimately reject the two-year rule, but it pointed out that the defendant in that case only worked for five months after signing his non-compete agreement – a duration the court found to be insufficient under any standard

As we enter 2018, it remains uncertain whether the Illinois Supreme Court eventually will reject this “bright-line” rule of two years of continued employment. Until Illinois high court resolves this issue, employers should carefully draft restrictive covenants supported by adequate consideration and thoroughly analyze the appropriate court for litigating enforcement actions.

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As we wind down 2017, we anticipate more biometrics lawsuits against Illinois employers, further developments in restrictive covenant enforcement, and trends such as prohibiting Illinois employers from asking about prospective employees’ past compensation – recently banned in New York City, San Francisco, Philadelphia, Oregon, Delaware, Massachusetts and California. Although a bill providing such a ban was vetoed in Illinois, employers should watch for such prohibitions enacted by Illinois municipalities in the next year.