HR by the Numbers: Thresholds for Employer Coverage in Illinois
Employers are subject to an increasing variety of employment laws on the federal, state, and local levels, depending on the number of employees they employ. Some of these laws only require larger employers, say with 50 or more employees, to comply. Other laws apply to employers with only one employee. Given recent developments in employment laws, employers may wish to review whether certain laws apply to them based on their current employee counts and whether they have appropriate policies and practices in place to comply with them. Below is a summary of certain federal and Illinois laws that may be of interest. Readers may be surprised at how many labor and employment laws cover employs with one or more employees.
Employment Laws Covering Employers with 1 or More Employees
- Computer Fraud and Abuse Act: This federal law creates liability for a person who intentionally accesses a computer without authorization or exceeds authorized access to obtain information.
- Consumer Credit Protection Act: This federal law prohibits employers from discharging an employee because his or her wages have been subjected to garnishment for any one debt and limits the amount of an employee’s earnings that may be garnished in any one week, with certain exceptions.
- Defend Trade Secrets Act (DTSA): This federal law provides trade secret owners the opportunity to protect against and remedy misappropriation of important proprietary information in federal court and to recover attorneys’ fees if the misappropriation was willful and malicious. DTSA includes a safe harbor for whistleblower employees that provides for disclosure of a trade secret that is made in confidence to an attorney or federal, state, or local government official solely for the purpose of reporting or investigating a suspected violation of law or in a filing in a lawsuit made under seal. (See also the Illinois Trade Secrets Act below).
- Employee Polygraph Protection Act of 1988 (EPPA): This federal law prohibits most employers from requesting that an employee or prospective employee take a lie detector test for pre-employment screening or during the course of employment, except under unusual circumstances. It also prohibits employers from using the results of a lie detector test and making any adverse employment decisions against an individual who refuses to take a lie detector test, with certain exceptions.
- Employee Retirement Income Security Act of 1974 (ERISA): This federal law establishes certain standards of conduct and reporting and disclosure requirements for employee welfare benefit plans or benefit plans (e.g., retirement, health, life, or disability plans) offered to employees and their families. ERISA applies to all private employers with employee welfare benefit plans or benefit plans.
- Equal Pay Act of 1963 (EPA): This federal law amended the Fair Labor Standards Act to prohibit sex-based wage discrimination and prohibits employers from discriminating in pay between male and female employees performing equal work, with certain exceptions.
- Fair Credit Reporting Act (FCRA): This federal law imposes certain requirements on the use of background check information from consumer reporting agencies when making employment decisions.
- Fair Labor Standards Act (FLSA): This federal law requires employers to pay employees a minimum wage and overtime rates. It also imposes other requirements, such as prohibiting sex discrimination in paying wages, establishing recordkeeping and child labor requirements, and requiring certain employers to provide reasonable unpaid lactation breaks for nursing mothers. Many employers run afoul of the FLSA when they misclassify employees as independent contractors or when they fail to comply with the rigorous requirements to avoid paying interns and students the minimum wage or overtime.
- National Labor Relations Act (NLRA): This federal law provides employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, and to engage in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. It also prohibits employers from discriminating against or interfering with employees in their exercise of these rights and from engaging in unfair labor practices. Employers often make the mistake of assuming that the NLRA only applies to unionized employers.
- Occupational Safety and Health Act (OSHA): This federal law requires employers to provide a safe workplace free from serious hazards, to follow OSHA safety and health standards, to provide safety training, to find and correct safety and health problems, and to abide by certain posting and recordkeeping requirements.
- PUMP for Nursing Mothers Act: This federal law expands existing legal rights for nursing employees. Specifically, under this law, most nursing employees have the right to reasonable break time and a place, other than a bathroom that is shielded from view and free from intrusion, to express breast milk while at work. This right is available for up to one year after the child’s birth. All employers covered by the FLSA, regardless of the size of their business, are required to comply with this law. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if they can demonstrate that compliance with the provision would impose an undue hardship.
- Rehabilitation Act of 1973: This federal law prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.
- Sarbanes-Oxley Act (SOX), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act: This federal law provides protections against retaliation for whistleblowers who report wrongdoing regarding securities law violations.
- Section 1981 of the Civil Rights Act of 1866 (Section 1981): This federal law prohibits discrimination on the basis of race, color, and ethnicity when making and enforcing contracts.
- Setting Every Community Up for Retirement Enhancement (SECURE) Act: This federal law makes several changes to retirement planning. For individuals born after June 30, 1949, the SECURE Act increases the age that a person must take required minimum distributions from an IRA or an employer sponsored retirement plan from 70.5 to 72. The SECURE Act also allows individuals over age 70.5 to contribute to an IRA. The SECURE Act also makes it easier for small businesses to set up retirement accounts by teaming up with other small businesses to offer multiple employer plans. SECURE Act 2.0 was signed into law on December 23, 2022. It clarifies certain provisions of the original SECURE Act. Under SECURE Act 2.0, automatic enrollment of new employees will be required for certain employers with 401(k) or 403(b) plans. There will also be a larger tax credit for employers with up to 50 employees, increasing the tax credit to 100% of qualified start-up costs and providing for an additional credit for five years of up to $1,000 per employee for eligible employer contributions. The law also allows employers to match student loan payments and deposit the funds in their retirement account.
- Speak Out Act: This federal law prohibits enforcement of any agreement containing a nondisclosure or nondisparagement provision clause that is entered into before an employee is subject to sexual harassment or sexual assault and that may apply to the employee’s later claims of sexual harassment or sexual assault. This does not mean that an employer and employee cannot settle claims of sexual assault or harassment with an agreement containing these provisions. Any settlement agreement containing these provisions would be executed after the employee was subject to the sexual harassment or sexual assault. The Speak Out law also pairs with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which prohibits enforcement of pre-dispute arbitration agreements and class/collective action waivers for sexual assault and sexual harassment disputes. The Speak Out Act does not preempt state laws that may provide for greater protection for employees. Illinois is among those states with additional and greater protections for employees regarding the disclosure of sexual assault and sexual harassment claims. See, for example, the discussion below of the Illinois Workplace Transparency Act.
- Stored Communications Act: This federal law provides privacy protections for customers of network service providers. This law prohibits a person from (1) intentionally accessing without authorization a facility where an electronic communication service is provided; or (2) intentionally exceeding authorization to access such a facility in order to obtain, alter, or prevent authorized access to a communication while it is in electronic storage.
- Uniformed Services Employment and Reemployment Rights Act (USERRA): This federal law prohibits employment discrimination based on a person’s membership, application for membership, service, application for service, or obligation for service in the uniformed services and provides certain re-employment rights and benefits to employees who must take a leave of absence from work due to service in the uniformed services.
- Illinois Abused and Neglected Child Reporting Act: This Illinois law requires reporting of any discovery of child pornography while installing, repairing, or otherwise servicing electronic and information technology equipment, and for workers in certain industries, to report to the Illinois Department of Children & Family Services if they have reasonable cause to believe that a child known to them in their professional/official capacity may be abused or neglected. It also prohibits employers from discriminating against any employee who makes a good faith report or testifies of suspected child abuse or neglect.
- Illinois AIDS Confidentiality Act: This Illinois law establishes confidentiality requirements associated with tests designed to reveal HIV infection. Any person, including an employer, must obtain documented informed consent prior to ordering an HIV test.
- Illinois Artificial Intelligence Video Interview Act: This Illinois law regulates employers’ use of artificial intelligence (AI) interviewing in the recruiting process. It applies to applicants for positions based in Illinois and requires employers that ask job applicants to record video interviews and use AI analysis of the videos to: (1) provide notice to each applicant that AI may be used to analyze the interview and consider the applicant’s fitness for the position, (2) provide information explaining how the AI works and what general types of characteristics it uses to evaluate applicants, and (3) obtain the applicant’s consent to be evaluated by AI. The Act also prohibits employers from using AI to evaluate an applicant without consent and from sharing an applicant’s video except with those whose expertise or technology is necessary to evaluate the applicant’s fitness for a position. Finally, the Act requires employers to delete an applicant’s video interview, including any copies, within 30 days of an applicant’s request.
- Illinois Biometric Information Privacy Act: This Illinois law prohibits private companies from collecting biometric data unless they inform the individual in writing that their biometric data is being collected, informs the subject in writing of the specific purpose and length of term for which the biometric data will be used, and receives the subject’s written consent. In 2023, the Illinois Supreme Court held that a separate claim accrues each time a private company scans or transmits an individual’s biometric data in violation of this law.
- Illinois Cannabis Regulation and Tax Act: This Illinois law legalized cannabis in the State. The law prohibits employers from terminating or disciplining an employee for the employee’s lawful use of cannabis. The Act allows employers to maintain a reasonable drug-free workplace policy that prohibits the use and possession of cannabis in the workplace. Employers may also prohibit an employee from being impaired or under the influence of cannabis while at work or while performing his or her job duties, however, employers must permit employees a reasonable opportunity to contest the basis of a determination of being under the influence. At the time this law was passed, the Illinois Compassionate Use of Medical Cannabis Pilot Program, which prohibited discrimination against a person solely for his or her status as a registered qualifying patient or registered designated caregiver, was in effect. (See the Illinois Compassionate Use of Medical Cannabis Pilot Program below).
- Illinois Child Labor Law: This Illinois law regulates the employment of persons under 16 years of age and limits their working hours. This law was amended so that, effective January 1, 2024, an employer with workers who do not regularly report to a physical workplace, such as remote workers, shall provide summaries and notices required by the Child Labor Law to these workers by email or conspicuously post these summaries and notices on its website if the website is regularly used by the employer to communicate work-related information to employees.
- Illinois Climate and Equitable Jobs Act: This Illinois law implements programs aimed at assisting displaced energy workers resulting from a push away from dependence on fossil fuels and towards renewable energy sources. This law also creates a Clean Jobs Workforce Network Hubs Program to ensure minority populations have the opportunity to obtain credentials to compete for clean energy-related jobs.
- Illinois Compassionate Use of Medical Cannabis Pilot Program Act: This Illinois law prohibits employment discrimination against a person solely for his or her status as a registered qualifying patient or registered designated caregiver; however, employers may still prohibit smoking of cannabis on the premises and enforce policies concerning drug testing, zero tolerance, or a drug-free workplace that are applied in a nondiscriminatory manner.
- Illinois Constitutional Amendment 1: Amendment 1 provides workers with a broad right to collectively bargain and prohibits any laws or ordinances that would bar an employee from automatically joining a labor union upon employment. The Amendment is broader than federal statutes, such as the National Labor Relations Act, because it provides that Illinois employees can collectively bargain to “protect their economic welfare and safety at work.”
- Illinois Criminal Identification Act: This Illinois law prohibits employers from considering expunged or sealed records of conviction or arrest in employment matters and from asking if job applicants have had records expunged or sealed. It also requires employment applications to contain specific language stating that an applicant is not obligated to disclose sealed or expunged records of conviction or arrest.
- Illinois Day and Temporary Labor Services Act: This Illinois law sets forth requirements for employers who hire day or temporary workers. On August 4, 2023, this law was substantially amended to expand rights for temporary workers. Temporary workers assigned to a client for more than 90 days must be paid at least the rate of pay and provided the equivalent benefits as directly hired, comparative employees. Employers hiring temporary workers must provide specific safety training. Additionally, a worker can refuse to work at a location where a labor dispute exists. To learn more about the August 4, 2023, amendment, please see our August 2023 Legal Update.
- Illinois Domestic Workers’ Bill of Rights Act: This Illinois law creates protections for workers who perform domestic work (g., housekeeping, house cleaning, caregiving, or cooking) by amending existing laws in Illinois such as the Illinois Minimum Wage Law, the Illinois One Day Rest in Seven Act, and the Illinois Human Rights Act.
- Illinois Eight Hour Work Day Act: This Illinois law provides that eight hours of work constitutes one legal work day in every industry except for farm work.
- Illinois Election Code (Voting Leave): This Illinois law requires employers to provide employees who are entitled to vote a two-hour leave of absence from employment without penalty, including not reducing compensation due to his or her absence.
- Illinois Electric Vehicle Act: This Illinois law serves to promote shifting the demand from petroleum fueled vehicles to electric vehicles. In 2021, this law was amended to require applicants for grants or rebates subsidizing the installation costs for charging stations to comply with the Prevailing Wage Act for installation of a charging station. (See our section on the Illinois Prevailing Wage Act, below).
- Illinois Employee Credit Privacy Act: This Illinois law prohibits employment discrimination based on an individual’s credit history/report and employers from making inquiries about an applicant’s or employee’s credit history or obtaining his or her credit report, with certain exceptions.
- Illinois Employee Organ Donor Leave Act: This Illinois law provides employees of the state or state agencies of any size with up to 30 days of paid leave in any 12-month period to serve as a bone marrow or organ donor, or up to 2 hours paid leave to donate blood platelets (to a maximum of 24 times in a 12-month period, or approximately every 2 weeks). These employees may not be required to exhaust accrued vacation or paid time off before becoming eligible for leave under the Organ Donor Leave Act. On August 2, 2019, Gov. J.B. Pritzker signed the Living Donor Protection Act which amended the Illinois Organ Donor Leave Act with the goal of preventing discrimination and retaliation against employees who take leave to become living organ donors. It applies to employers and insurance companies. The amendment prohibits employers from retaliating against an employee for requesting or obtaining a leave of absence to undergo an organ donation and prohibits insurance companies from denying coverage or increasing premiums or rates for living donors for disability, life and long-term care insurance.” It also tasks the Secretary of State with creating and maintaining an opt-in organ and tissue donor registry.
- Illinois Employee Patent Act: This Illinois law state that employment agreement provisions stating that an employee shall assign or offer to assign his or her rights to an invention to the employer do not apply to an invention for which no equipment, supplies, facilities, or trade secret information of the employer were used and the invention was developed entirely on the employee’s own time. Employers can enforce their invention assignment provisions under this law if (a) the invention relates to the business of the employer or the employer’s actual or demonstrably anticipated research or development or (b) the invention results from any work performed by the employee for the employer.
- Illinois Employee Sick Leave Act: This Illinois law requires employers to allow employees to use at least a portion of the sick leave time that is already available to them to care for certain relatives.
- Illinois Enterprise Zone Act: This Illinois serves to stimulate business and industrial growth in economically depressed neighborhoods. In 2021, this law was amended to require that contractors and subcontractors for a high impact business construction job project make and keep records regarding their workers’ race, sex, and ethnicity.
- Illinois Equal Pay Act of 2003: Like the federal EPA, this Illinois law makes it unlawful for employers to pay employees different wages for similar work due to gender or race. The law includes certain exceptions for wage decisions based on non-gender or race-related factors such as seniority, merit, and quality or quantity of work. Fines for employers with less than four employees are capped at $500 for a first offense, but fines for employers with four or more employees start at up to $2,500. This law was amended effective September 29, 2019, to bar employers from asking job applicants about their salary history. The amendment also prohibits employers from obtaining this information from prior employers. This law was amended so that, effective January 1, 2024, employers with workers who do not regularly report to a physical workplace, such as remote workers, shall provide summaries and notices required by the Illinois Equal Pay Act to these workers by email or conspicuously post these summaries and notices on its website if the website is regularly used by the employer to communicate work-related information to employees. Illinois has enacted new amendments to this law that, effective January 1, 2015, require employers with 15 or more employees to include a description of the pay scale and benefits in covered job postings. This change in law has impacted how many Illinois employers recruit and post for open jobs.
- Illinois Equitable Restrooms Act: This Illinois law sets forth requirements for restroom facilities in places of public accommodation. In 2020, this law was amended to require every single-occupancy restroom in a place of public accommodation or public building to be identified as all-gender by exterior signage that must not indicate any specific gender.
- Illinois Firearm Concealed Carry Act: This Illinois law generally allows licensed persons to carry concealed firearms, but it prohibits them from carrying firearms on or into schools, public playgrounds, courts, bars, hospitals, and other “prohibited areas.” The law also permits private property owners to prohibit the carrying of concealed firearms on their property with certain limitations.
- Illinois Freedom to Work Act: This Illinois law, amended in 2021 to take effect on January 1, 2022, prohibits employers from entering into a covenant not to compete or a non-solicitation agreement with low-wage employees and makes such restrictions illegal and void. Non-competition and non-solicitation agreements with employees who meet the compensation threshold are not illegal and void if they met the requirements of the Illinois Freedom to Work Act.
- Illinois Gender Violence Act (GVA): This Illinois law protects victims of sexual violence by creating a private cause of action for them against the perpetrators of sexual violence, with a long statute of limitations. For those impacted by physical, gender-motived violence, it offers a way to hold abusers accountable. However, until recently, it was unclear whether employers could be held liable for their employees’ sexual violence. An Illinois Appellate Court decision, Gasic v. Marquette Mgt., Inc., clarified this issue and held that employers can be held liable for their employees’ actions under the GVA. 2019 IL App (3d) 170756 (May 17, 2019). The GVA provides a lesser-known alternative option of relief for victims, a private cause of action.
- Illinois Genetic Information Privacy Act: This Illinois law prohibits employers from requesting genetic information or a genetic test as a condition of employment or pre-employment application and generally prohibits employment discrimination based on the genetic information of an employee or his/her family member, with certain exceptions.
- Illinois Healthcare Violence Prevention Act: This Illinois law requires health care providers to comply with new workplace violence training and related safety requirements, such as the adoption of a workplace violence prevention program that complies with federal and Illinois guidelines and posting of notices stating that verbal aggression will not be tolerated and that physical assault will be reported to law enforcement.
- Illinois Health Care Workers Background Check Act: This Illinois law requires licensed and certified long-term care facilities to conduct criminal background checks of certain health care workers and employees who have or may have contact with the residents, have access to the living quarters of the residents, or have access to the financial, medical, or personal records of residents. In 2019, this law was amended to streamline the hiring and occupational licensing processes for more than 4 million Illinoisans with arrest or conviction records. The law also permits organizations supporting ex-offenders to initiate fingerprint-based criminal history record checks for individuals with a disqualifying conviction. Previously only health care employers extending a conditional offer of employment to an applicant had authority to begin such background checks.
- Heroes Earning Assistance and Relief Tax Act (“HEART Act”): This federal law provides that employees who are disabled while on active duty for more than 30 days and to their beneficiaries if they die on active duty.
- Illinois Hotel and Casino Employee Safety Act: This Illinois law requires hotel and casino employers to protect employees against sexual assault and harassment by guests by providing panic buttons and written anti-sexual harassment policies in English and Spanish.
- Illinois Human Rights Act: This Illinois law prohibits sexual harassment and employment discrimination based on race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from military service, or citizenship status. It also prohibits employers from inquiring into or using (a) an arrest or (b) criminal history record information that was ordered expunged, sealed, or impounded when making employment decisions and from prohibiting a language from being spoken by an employee in communications unrelated to the employee’s duties. It further requires employers to make reasonable accommodations for medical or common conditions related to pregnancy or childbirth, with certain exceptions. In 2017, Illinois passed the Religious Garb Law, which amended the Illinois Human Rights Act. This amendment clarified the scope of protection for sincerely held religious beliefs. It prohibits employers from imposing a work requirement that would cause an employee to “violate or forgo a sincerely held practice of his or her religion including, but not limited to, the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion. Employers can enact a dress code or grooming policy that includes restrictions on attire, clothing, or facial hair to maintain workplace safety or food sanitation or if failing to maintain such a policy would result in undue hardship to the employer’s business. In 2019, this law was amended to require employers with employees in Illinois to provide sexual harassment prevention training to employees at least once per year. Employers must also comply with new reporting requirements and submit annual disclosures about adverse judgments or adverse rulings against them for unlawful employment practices. In 2022, Illinois enacted the Create a Respectful and Open Workplace for Natural Hair “CROWN” Act amendment to the Illinois Human Rights Act. This amendment bans race-based hair discrimination by employers in Illinois. Specifically, the CROWN Act expands the definition of “race” under the Illinois Human Rights Act to include “traits associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists.
- Illinois Job Opportunities for Qualified Applicants (“Ban-the-Box Act”): This Illinois law prohibits most employers from considering or inquiring into a job applicant’s criminal record or history until after the individual has been determined qualified for the position and notified of an impending interview or, if the applicant will not be interviewed, until after a conditional offer of employment is made. The law does not preclude an employer from notifying applicants in writing of specific offenses that will disqualify an applicant from employment in a particular position due to federal or state law or the employer’s policy. Additionally, Illinois employers are prohibited from discriminating against applicants or employees on the basis of their arrest records.
- Illinois Jury Act (Jury Duty Leave): This Illinois law allows employees who have been summoned for jury duty to take unpaid time off from employment to serve on the jury and be reinstated without loss of seniority. It also prohibits employers from discharging, threatening to discharge, intimidating or coercing any employee based on jury service.
- Illinois Living Donor Protection Act: This law amends the Illinois Organ Donor Leave Act and is intended to prevent discrimination and retaliation against employees who take leave to become living organ donors. It applies to employers and insurance companies. The law “prohibits employers from retaliating against an employee for requesting or obtaining a leave of absence to undergo an organ donation and prohibits insurance companies from denying coverage or increasing premiums or rates for living donors for disability, life, and long-term care insurance.” It also tasks the Secretary of State with creating and maintaining an opt-in organ and tissue donor registry.
- Illinois Mini-COBRA (Illinois Continuation Law): This Illinois law protects employees who lose their group health insurance coverage with an employer group of any size and provides eligible employees with certain rights to continue their insurance under the employer’s group policy. It also requires employers to provide written notice of continuation coverage within 10 days to the affected employee and to the insurer. Illinois mini-COBRA will apply to most employers who offer fully insured group health plans, with certain exceptions. Employers may also have obligations under the Illinois Spousal Continuation Law and the Illinois Dependent Child Continuation Law. The federal COBRA law covers employers with 20 or more employees who sponsor group health plans. See discussion below.
- Illinois Minimum Wage Law: This Illinois law requires employers to pay employees who are 18 years of age or older the Illinois minimum wage and overtime rates, with certain exceptions. It applies to employers with one or more employees but excludes employees who work for employers who employ less than four employees exclusive of the employer’s parent, spouse, child, or other immediate family. This law was amended so that, effective January 1, 2024, employers with workers who do not regularly report to a physical workplace, such as remote workers, shall provide summaries and notices required by the Minimum Wage Law to these workers by email or conspicuously post these summaries and notices on its website if the website is regularly used by the employer to communicate work-related information to employees.
- Illinois One Day Rest In Seven Act: This Illinois law requires employers: to allow most employees at least 24 consecutive hours of rest in every calendar week in addition to the regular period of rest allowed at the close of each working day; to permit employees who work for 71/2 continuous hours or longer at least 20 minutes for a meal period beginning no later than five hours after the start of the work period, with certain exceptions; and to keep certain records regarding employees and hours worked. Effective January 1, 2023, this law was amended to require an additional 20-minute meal period if an employee is working a 12-hour shift or longer. Reasonable restroom breaks do not count towards the meal period. The amendment also provides that employees must have at least 24 consecutive hours or rest in every consecutive 7-day period (as opposed to a calendar week) in addition to the regular period of rest allowed at the close of each working day.
- Illinois Paid Leave for All Workers Act: This Illinois law requires employers to provide up to 40 hours of paid leave to employees, which employees may use for any reason. Employees do not need to provide a reason for taking paid leave under this law, and employers may not require employees to provide documentation in support of their need to take leave. Under this law, an employer may require an employee to provide up to 7 days’ notice before taking leave if the need for taking leave is foreseeable. If the need to take paid leave is not foreseeable, the employee may provide notice as soon as is practicable. Employers are not required to comply with this law if a local municipal or county ordinance is in effect by January 1, 2024, that requires employers to give any form of paid leave to their employees. By way of example, the City of Chicago and Cook County have such ordinances through the Chicago Paid Sick Leave Ordinance and the Cook County Earned Sick Leave Ordinance, respectively.
- Illinois Personal Information Protection Act: This Illinois law requires all entities (including employers) that own or license personal information for Illinois residents to notify any Illinois residents if there has been any breach in the entity’s computer system.
- Illinois Power Agency Act: This Illinois law requires businesses operating renewable energy projects to pay the prevailing wage to their employees.
- Illinois Prevailing Wage Act: This Illinois law requires contractors and subcontractors to pay laborers, workers, and mechanics employed on public works projects, no less than the general prevailing rate of wages (consisting of hourly cash wages plus fringe benefits) for work of similar character in the locality where the work is performed.
- Illinois Public Employee Disability Act (PEDA): This Illinois law provides financial assistance to first responders and other qualified employees, such as correctional officers, who are injured in the line of duty.
- Illinois Public Labor Relations Act (IPLRA): This Illinois law provides public employees the right to self-organize, to form, join, or assist labor organizations, to bargain collectively, and to engage in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. It also prohibits employers from discriminating against or interfering with employees in their exercise of these rights and from engaging in unfair labor practices.
- Illinois Public Safety Employee Benefits Act: This Illinois law requires public employers to pay the health insurance premiums of former public safety officers if those public safety officers are killed or suffer a catastrophic injury in response to fresh pursuit, an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act.
- Illinois Right to Privacy in the Workplace Act: This Illinois law prohibits employment discrimination based on an individual’s use of lawful products off the premises of the employer during nonworking hours. It also prohibits employers from inquiring whether a prospective employee has ever filed for or received workers’ compensation benefits and from requesting employees’ information in order to gain access to the employee’s personal social networking account or profile.
- Illinois Service Member Employment and Reemployment Rights Act (ISERRA): This Illinois law consolidates various job-related protections for military service members under existing federal and Illinois laws. Among other duties, ISERRA requires posting a notice of employee rights and prohibits employers from discriminating against service members or restricting a service member employee’s military leave.
- Smoke-Free Illinois Act: This Illinois law prohibits smoking in any place of employment or within 15 feet of any entrance to a place of employment and requires employers to post “no smoking” signs, with certain exemptions.
- Illinois Time Off for Official Meetings Act: This Illinois law requires employers to allow employees who serve as election officials for a unit of local government or a school district to have time off to attend and travel to and from official meetings.
- Illinois Trade Secrets Act: This Illinois law allows companies, including employers, to protect against and remedy misappropriation of important proprietary information in court.
- Illinois Unemployment Insurance Act: This Illinois law governs employers’ unemployment insurance obligations, including the payment of employer contributions and certain wage report requirements. Employers are also generally required to report certain information about new hires within 20 days of adding an employee.
- Illinois Veterans Preference in Private Employment Act: This Illinois law allows—but does not require—private employers to adopt a voluntary preference for hiring, promoting, or retaining a veteran over another equally qualified applicant or employee. Employers who wish to provide preferential treatment of veterans must adopt a veteran’s preference employment policy in writing, publicly post the policy in the workplace or on the employer’s website and inform all job applicants of this policy on its job application form.
- Illinois Victims’ Economic Security and Safety Act (VESSA): This Illinois law generally requires employers to provide certain unpaid leave and other rights to employees who are the victims of domestic or sexual violence or who have a family or household member who is experiencing an incident of domestic or sexual violence. VESSA requires employers with 1–14 employees to provide a total of four workweeks of VESSA leave during any 12-month period. Employers with 15–49 employees are required to provide an increased total of eight workweeks of VESSA leave, and employers with at least 50 employees are required to provide a total of 12 weeks of VESSA leave. In 2019, this law was amended to include victims of gender violence. On July 28, 2023, VESSA was amended to expand leave available to Illinois employees grieving a family member’s death arising from a crime of violence. Under the amendments, employees may also take leave (1) to attend the funeral or an alternative to a funeral or wake of a family or household member who is killed in a crime of violence; (2) to make arrangements necessitated by the death of a family or household member who is killed in a crime of violence; or (3) to grieve the death of a family or household member who is killed in a crime of violence.
- Illinois Volunteer Emergency Worker Job Protection Act: This Illinois law prohibits employers from terminating an employee who is absent from or late for work because the employee was acting as a volunteer emergency worker. An employer also cannot discipline an employee for responding to an emergency phone call or text message requesting emergency services during the employee’s work hours.
- Illinois Voter Leave Law: This Illinois law requires employers to give two hours of leave to employees for the purpose of voting on Election Day.
- Illinois Wage Assignment Act: This Illinois law prohibits employers from discharging or suspending an employee on the basis that the employee’s earnings have been subjected to wage demands on the employee’s employer for any indebtedness and imposes certain requirements in connection with employees’ wage assignments.
- Illinois Wage Payment and Collection Act: This Illinois law generally requires employers (a) to notify employees in writing, at the time of hiring, of the rate of pay and of the time and place of payment; (b) to pay wages at least semi-monthly and not later than 13 days after the end of the pay period in which such wages were earned, with certain exceptions; (c) to pay terminated employees’ final compensation by the next regularly scheduled payday; and (d) to pay earned and unused vacation as part of such final compensation. It also restricts employers from making deductions from wages or final compensation without an employee’s consent and imposes certain requirements in connection with accurate records for each employee, notices, and payroll cards. This law was amended so that, effective January 1, 2024, employers with workers who do not regularly report to a physical workplace, such as remote workers, shall provide summaries and notices required by the Wage Payment and Collection Act to these workers by email or conspicuously post these summaries and notices on its website if the website is regularly used by the employer to communicate work-related information to employees.
- Illinois Whistleblower Act: This Illinois law prohibits employers from taking certain actions against whistleblowers to prevent them from disclosing information to a government or law enforcement agency or to retaliate against them.
- Illinois Workers Compensation Act: This Illinois law generally covers all accidental injuries that arise out of, and in the course of, employment. Under this law, employers are required to carry workers’ compensation insurance for their employees. This law provides that it is the employee’s exclusive remedy if he or she sustains a compensable injury.
- Illinois Workplace Transparency Act: This Illinois law restricts employers’ use of nondisclosure and nondisparagement provisions in employment settlement and separation agreements. Confidentiality provisions must be bilateral, bargained for and in writing, and an employee must have sufficient time, as specified by the law, to review and agree with them. The law also limits an employer’s ability to include arbitration clauses as a condition of employment in unilateral contracts. The law also requires employers to hold annual sexual harassment trainings that meet or exceed the standards provided by the Illinois Department of Human Rights.
- Note: Cook County, Illinois and the City of Chicago also have various employment laws that may affect covered employers with one or more employees in Cook County and/or Chicago. These include the Cook County Human Rights Ordinance, the Cook County Wage Theft Ordinance, Chicago Clean Indoor Air Ordinance of 2008, Chicago Human Rights Ordinance, Chicago Minimum Wage Ordinance of 2014, and the Chicago Vehicle Equipment Ordinance on the Use of Mobile Telephones. For example, in 2022, the Chicago Human Rights Ordinance was amended, among other things, to require employers to provide the following trainings every year: (a) one hour of sexual harassment training for all employees; (b) one hour of bystander training for all employees; and (c) one additional hour of sexual harassment prevention training for supervisors / managers. Other counties and cities may have other ordinances.
Employment Laws Covering Employers with 4 or More Employees
- Immigration Reform and Control Act of 1986 (IRCA): This federal law prohibits employment discrimination based on an individual’s national origin or citizenship status when hiring, recruiting, or referring for a fee, unless otherwise required by law.
Employment Laws Covering Employers with 5 or More Employees
- Illinois Nursing Mothers in the Workplace Act: This Illinois law requires employers to provide reasonable unpaid break time each day to an employee who needs to express milk for her child and make reasonable efforts to provide a private room (other than a toilet stall) to do so. This applies to employers with five or more employees (but does not count employees who are the employer’s parent, spouse, child, or other members of the employer’s immediate family).
- Illinois Personnel Record Review Act: This Illinois law gives employees certain rights to inspect and correct their personnel records and imposes certain obligations on employers with respect to personnel records, with certain exceptions. It applies to employers with 5 employees or more than 5 employees exclusive of the employer’s parent, spouse, child, or other immediate family members.
Employment Laws Covering Employers with 15 or More Employees
- Americans with Disabilities Act of 1990 (ADA) & ADA Amendments Act of 2008 (ADAAA): These federal laws prohibit employment discrimination against qualified individuals based on disability, including: (a) a physical or mental impairment that substantially limits one or more major life activities of the individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. Covered employers need to reasonably accommodate qualified individuals unless to do so would cause an undue hardship or unless an individual poses a direct threat (i.e., a risk of substantial harm) to the health and safety of the individual or others in the workplace. Covered employers have an obligation to engage in an “interacative process” when considering reasonable accommodations.
- Genetic Information Nondiscrimination Act of 2008 (GINA): This federal law prohibits employment discrimination based on genetic information and prohibits employers from requesting, requiring, or purchasing genetic information of an employee or employee’s family member, with certain exceptions.
- Title VII of the Civil Rights Act of 1964 (Title VII): This federal law prohibits employment discrimination based on a person’s race, color, religion, sex, or national origin and prohibits retaliation against an employee for opposing such unlawful employment practices or for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII.
- Pregnancy Discrimination Act of 1978 (PDA): This federal law amended Title VII to prohibit sex discrimination on the basis of pregnancy, childbirth, or related medical conditions.
- Pregnant Workers Fairness Act: This federal law requires employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.
- Illinois Civil Patrol Leave Act: This Illinois law requires employers to provide up to 15 days of unpaid civil air patrol leave to an employee performing a civil air patrol mission.
- Illinois Family Military Leave Act: This Illinois law requires employers to provide unpaid, job-protected family military leave to an employee who is the spouse, parent, child, or grandparent of a person called to military service lasting longer than 30 days with Illinois or the United States.
- Illinois Human Rights Act: This Illinois law prohibits sexual harassment and employment discrimination based on race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from military service, or citizenship status. It also prohibits employers from inquiring into or using (a) an arrest or (b) criminal history record information that was ordered expunged, sealed, or impounded when making employment decisions and from prohibiting a language from being spoken by an employee in communications unrelated to the employee’s duties. It further requires employers to make reasonable accommodations for medical or common conditions related to pregnancy or childbirth, with certain exceptions. This law generally applies to employers with 15 or more employees; however, if the unlawful discrimination is based on physical or mental disability, pregnancy, or sexual harassment, it applies to employers with one or more employees.
- Illinois Job Opportunities for Qualified Applicants Act: This Illinois law restricts employers’ inquiries about a job applicant’s criminal record or history until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview or, if there is not an interview, until after a conditional offer of employment is made, with certain exceptions.
- Illinois Workplace Violence Prevention Act: This Illinois law gives employers the right to petition a court for a workplace protection restraining order to prohibit further violence or threats of violence by limiting access to the workplace by individuals who have made a credible threat of violence to be carried out at the workplace (g., against an employee).
Employment Laws Covering Employers with 20 or More Employees
- Age Discrimination in Employment Act of 1967 (ADEA): This federal law prohibits employment discrimination against employees 40 years of age or older.
- Consolidated Omnibus Budget Reconciliation Act (COBRA): This federal law provides employees with the right to temporary continuation coverage under group health plans for beneficiaries who would otherwise lose coverage due to a qualifying event, such as termination of employment. COBRA covers employers with 20 or more employees who sponsor group health plans.
- Older Workers Benefit Protection Act (OWBPA): This federal law amends the ADEA and prohibits discrimination against employees who are 40 years of age or older and imposes certain requirements for employers who ask such employees for a release of their rights or claims.
- Illinois Employee Arbitration Act: This Illinois law allows employees to apply to the Illinois Department of Labor to mediate controversies not involving questions that may be the subject of a civil action. It applies to employers with 25 or more employees.
Employment Laws Covering Employers with 25 or More Employees
- Illinois Election Judge Leave: This Illinois law allows employees to be absent from work for the purpose of serving as an election judge after giving his or her employer at least 20 days’ written notice. This law covers employers with 25 or more employees.
Employment Laws Covering Employers with 50 or More Employees
- Family and Medical Leave Act of 1993 (FMLA): This federal law applies to employers with 50 or more employees and provides eligible employees with unpaid, job-protected FMLA leave for up to 12 weeks for certain family and medical reasons or any qualifying exigency arising out of the fact that an employee’s spouse, child, or parent is on covered active duty in the U.S. Armed Forces or for up to 26 weeks to care for a covered servicemember who is the employee’s spouse, child, parent, or next of kin. The law covers employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
- Illinois Family Bereavement Leave Act: This Illinois law, which became effective on January 1, 2023, substantially amended the Child Bereavement Act (which only covered the loss of a child) and provided new protections for employees dealing with the loss of a family member. Now titled the Family Bereavement Leave Act, the law requires up to two-weeks unpaid bereavement leave for the loss of a “covered family member.” A “covered family member” is expansively defined and includes a “child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.” Additionally, bereavement leave is not limited to time off for a “loss.” It now covers time off: attending the funeral, making arrangements necessitated by a death, time spent grieving a death, and mourning caused by a miscarriage, unsuccessful artificial insemination, failed adoption match, a failed surrogacy arrangement, a diagnosis which negatively affects pregnancy and fertility, or a still birth. Taken together, this amendment significantly expands protections for grieving employees. The law covers employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
- Illinois School Visitation Rights Act: This Illinois law generally requires employers to grant an employee unpaid leave of up to a total of 8 hours during any school year to attend school conferences or classroom activities related to the employee’s child if the conference cannot be scheduled during non-work hours. This law applies to employers with 50 or more employees. Beginning in 2020, this law was expanded to include an employee’s attendance at meetings to address behavioral or academic performance for his or her children.
- Illinois Employee Blood Donation Leave Act: This Illinois law allows full-time employees who have been employed for at least 6 months to use up to one hour as blood donation leave with pay to donate blood every 56 days. This law applies to employers with 51 or more employees.
Employment Laws Covering Employers with 75 or More Employees
- Equal Employment Opportunity Commission Reporting Requirements (EEO-1 Report): The EEO-1 Report is a survey mandated by federal law and requires all private employers who are subject to Title VII with 100 or more employees to provide and certify certain employment data categorized by race/ethnicity, gender, and job category on an annual basis.
- Illinois Worker Adjustment & Retraining Notification Act (Illinois WARN Act): The Illinois WARN Act requires an Illinois employer with 75 or more employees to give 60 days’ written notice to affected employees and the government before ordering a mass layoff, relocation, or employment loss, with certain exceptions (e.g., the layoff, relocation, or employment loss is due to a physical calamity or an act of terrorism or war).
- Worker Adjustment and Retraining Notification Act (Federal WARN Act): This federal law requires employers with 100 or more employees to provide 60 days’ advance notice of any plant closings and mass layoffs to the affected workers, to the dislocated worker unit in the state, and to the appropriate unit of local government, with certain exceptions.
This Legal Update includes only a sampling of important employment laws. It does not discuss every law that may apply to an employer or an employer’s workplace, including laws in other states in which an organization may do business, nor does it discuss laws relating to employers that have “government contracts.” Certain laws that we did not mention may nonetheless be particularly important to you or your business, and we encourage you to consult with legal counsel for more information. In addition, as reflected in the foregoing discussion, new laws are frequently adopted and the law can change quickly. Of course, nothing in this Update constitutes professional legal advice, nor is it intended to be a substitute for professional legal advice.
This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.
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