Ringing in the New Year: What Illinois Employers Can Expect in 2019

In 2019 Illinois employers can expect expanded workplace protections for nursing mothers, broader requirements imposed on employers for certain employee reimbursements for reasonable work expenses, and protections for Illinois service members’ employment rights. Further, in 2019 Illinois' highest court is expected to clarify the heavily litigated BIPA statute.

Expanded Workplace Protections for Nursing Mothers – Effective Immediately

On August 21, 2018, Governor Rauner expanded workplace protections for nursing mothers by amending the Illinois Nursing Mothers in the Workplace Act, 820 ILCS 260, which became effective immediately. These new amendments made several significant changes to the Act.

Employers (who employ more than five employees) are required to provide “reasonable break time” each time an employee needs to express milk for an employee’s nursing infant children up to one year after the child’s birth. The Act previously required employers to provide “reasonable unpaid break time” and did not include a timeframe.

An employee’s break time “may” run concurrently with any break time already provided to the employee. The new amendments appear to prohibit an employer from reducing compensation for time spent for the purpose of expressing milk. The prior version stated that break time “must, if possible” run concurrently with any break time already provided.

Finally, the amendments modify the circumstances under which employers may be exempted from providing breaks under the Act. Previously, employers were required to provide breaks only if doing so would not “unduly disrupt the employer’s operations.” Now, an employer is required to comply with this amended law unless it can demonstrate that compliance would create “an undue hardship” for the employer, as defined by Section-102 of the Illinois Human Rights Act.

The new amendments suggest that employers may not reduce compensation for an employee’s lactation breaks regardless of the length of the break taken.

Employers Now Required to Reimburse for Certain Business Expenses – Effective January 1, 2019

Effective January 1, 2019, amendments to the Illinois Wage Payment Collection Act (IWPCA) will require employers to reimburse their employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” 820 ILCS 115/9.5.

“Necessary expenditures” is defined as “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.”

Employers are not responsible for losses:

• Due to an employee’s own negligence
• Due to normal wear
• Due to theft unless the theft was a result of the employer’s negligence

An employee requesting reimbursement shall submit any necessary expenditures with appropriate supporting documentation within 30 calendar days after incurring the expense unless the employer has implemented a written expense reimbursement policy that extends the time for submitting requests for reimbursement. When supporting documentation is “nonexistent, missing, or lost” the employee may submit a signed statement regarding these receipts.

An employee is not entitled to reimbursement if: (i) the employer has an established written expense reimbursement policy and (ii) the employee fails to comply with the employer’s policy. An employer is not liable under this Section unless the employer authorized or required the employee to incur the necessary expenditure or the employer fails to comply with its own policy.

If the employer’s written expense reimbursement policy establishes specifications or guidelines for necessary expenditures, the employer is not liable under the new amended law for the portion of the expenditure amount that exceeds the specifications or guidelines of the policy so long as the employer does not institute a policy that provides for no reimbursement or de minimis reimbursement.

Added Protections for Illinois Service Members – Effective January 1, 2019

A new law, the Illinois Service Member Employment and Reemployment Rights Act (ISERRA), 330 ILCS 61, initiated by Attorney General Lisa Madigan, takes effect on January 1, 2019. ISERRA clarifies and strengthens existing Illinois laws to ensure that service members’ employment and rights are protected while fulfilling military requirements. ISERRA is meant to simplify existing Illinois law and make it easier for employers to understand and comply with its provisions.

ISERRA incorporates the basic protections of the Uniformed Services Employment and Reemployment Rights Act (USERRA), including prohibitions on discrimination.

Employer’s notice requirement: Employers must provide to employees a notice of the rights, benefits and obligations of service member employees under this Act. This requirement may be met by posting a notice where the employer customarily places notices for employees.

Enforcement: ISERRA gives the Attorney General’s office the authority to file civil lawsuits to enforce ISERRA and creates the position of ISERRA Advocate to provide training and information to employers and service members.

Private Right of Action: The ISERRA also provides for a private right of action, and a court may award actual damages or any other relief that the court deems proper. Punitive damages are not authorized except in cases involving violations under Section 5-15 (prohibitions on discrimination) and may not exceed $50,000 per violation. Reasonable attorney’s fees may be awarded to a prevailing party. A prevailing defendant may receive attorney’s fees if the court makes a finding that the plaintiff acted in bad faith.

Clarification Anticipated From the Illinois High Court on the Biometric Information Privacy Act (BIPA)

The Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq., requires any “private entity” in possession of “biometric identifies or biometric information” to:

• Publish a written policy for retention and destruction of biometric identifiers and information
• Dispose of biometric information once the purpose for collecting it has been satisfied or within three years of the individual’s 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

BIPA provides a private right of action for persons “aggrieved by a violation of [the] Act.”

On November 20, 2018, the Illinois Supreme Court heard oral arguments in Rosenbach v. Six Flags Entertainment Corporation, a case arising under BIPA. The issue presented to the Illinois Supreme Court is whether an individual is an “aggrieved person” and therefore entitled to proceed under BIPA “when the only injury he alleges is a violation of…the Act by a private entity who collected his…biometric information without providing him the required disclosures and obtaining his written consent.” In Rosenbach, the Second District court had dismissed the proposed class brought against an amusement park operator for allegedly using patrons’ fingerprints without providing disclosures, and held that to constitute an “aggrieved person” under BIPA, a plaintiff “must allege some actual harm” beyond mere technical violations of the statute. 2017 IL App (2d) 170317, ¶ 1.

The Illinois Supreme Court may have the opportunity to resolve an intra-district split that arose with the First District’s September decision in Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, which held that although the plaintiff had not alleged any additional injury, her allegations of statutory violations, disclosure and mental anguish were sufficient to maintain a cause of action under BIPA. A petition for leave to appeal was recently filed in Sekura.

Next Steps for Employers

Because of the significant changes to employers’ obligations in terms of breaks provided to nursing mothers, expense reimbursements and service members’ employment rights, employers should continue to review their policies for compliance with the new and amended laws and post notices as required. In addition, if an employer collects biometric data, it must have the required written retention and destruction procedures, as well as the notices and authorizations for employees.