New Year, New Rules: Significant Illinois Employment Law Changes Coming in 2024
November 29, 2023
Several laws are scheduled to go into effect in Illinois in 2024. A summary of the laws is set forth below:
1. Illinois Child Extended Bereavement Act (New Law) (Effective January 1, 2024)
Under the Illinois Child Extended Bereavement Leave Act (the “ICEBLA”), a “covered employer” will be required to provide unpaid, job-protected leave to eligible employees who experience the loss of a child by suicide or homicide so that the employees may grieve the loss of that child. The ICEBLA defines “child” to include an employee’s biological, adopted, foster, or stepchild, legal ward, or a child of a person standing in loco parentis.
While the ICEBLA defines a “covered employer” as an employer with at least 50 full-time employees in Illinois, the amount of unpaid leave an employee is entitled to take depends on the size of the employer. For “large” employers that employ at least 250 full-time employees in Illinois, an employee is entitled to take up to 12 weeks of unpaid leave. For “small” employers who employ between 50 and 249 full-time employees in Illinois, an employee is entitled to take up to 6 weeks of unpaid leave.
To be eligible, an employee must have worked for a covered employer for at least 2 weeks as of the date the employee seeks to take the leave. Employees may take unpaid leave in a single continuous period or intermittent periods. If an employee elects for intermittent leave, the employee must take it in 4-hour increments.
An employer may require the employees to provide advance notice of intent to take unpaid leave, unless notice is not practicable. An employer also may require employees to provide reasonable documentation, e.g., a death certificate, obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institute, or government agency. An employer further may require the reasonable documentation include the cause of death.
The ICEBLA does not extend the maximum period of leave employees are entitled to take under the federal Family and Medical Leave Act, or any other paid or unpaid leave provided under federal, state, or local law, a collective bargaining agreement, or an employment benefits plan. Employees who take leave under the ICEBLA are not entitled to take additional leave under the Illinois Family Bereavement Act for the death of the same child. An employer is prohibited from retaliating against an employee for exercising their rights under the ICEBLA, opposing practices that the employee believes to be in violation of the ICEBLA, or supporting the exercise of rights of another employee under the ICEBLA.
2. Illinois Employee Blood and Organ Donation Leave Act (New Law) (Effective January 1, 2024)
Under the current Illinois Employee Blood Donation Leave Act (the “IEBDLA”), a “covered employer” is required to provide eligible employees with up to 1 hour of paid leave every 56 days to donate blood. A “covered employer” is defined as “any unit of local government, board of election commissioners, or any private employer in the State [of Illinois] who has 51 or more employees.”
As of January 1, 2024, the IEBDLA will change to the Illinois Employee Blood and Organ Donation Leave Act, which will require a covered employer to provide eligible employees with up to 10 days of paid leave in a 12-month period to donate an organ or tissue. To be eligible, an employee must have worked for an employer on a full-time basis for at least 6 months and have received approval from their employer to participate in blood, organ, or tissue donation.
3. Illinois Freelance Worker Protection Act (New Law) (Effective July 1, 2024)
The Illinois Freelance Worker Protection Act (the “IFWPA”) imposes certain obligations on a hiring entity that contracts with a “freelance worker.” The IFWPA defines “freelance worker” as “a natural person who is hired or retained as an independent contractor by a contracting entity to provide products or services in Illinois or for a contracting entity located in Illinois in exchange for an amount equal to or greater than $500, either in a single contract or when aggregated with all contracts for products or services between the same contracting entity and the freelance worker during the immediately preceding 120 days.” The following categories of individuals are excluded from the definition of “freelance worker” under the IFWPA: (1) workers performing construction services; (2) workers performing services as an employee for a contractor who engages in construction; (3) workers engaged in the traditional employer-employee relationship as defined by the Illinois Wage Payment and Collection Act; and (4) all foreign, federal, state, and local government entities, including school districts.
The IFWPA requires freelance workers and hiring entities to enter into a written contract that contains the following information:
- the name and contact information of both parties (including the hiring entity’s mailing address);
- an itemized list of all products and services the freelance worker will supply, including the value of the products and services and the rate and method of compensation for such products and services;
- the date on which payment is due to the freelance worker; and
- if the hiring entity requires an invoice to timely compensate the freelance worker, the date by which the freelance worker must submit to the hiring entity an invoice of products and services rendered.
Once a freelance worker commences services under the contract, a hiring entity is prohibited from conditioning timely payment on the freelance worker’s acceptance of less compensation due them. A hiring entity is required to pay freelance workers all compensation due them under their contract within 30 days of the worker’s completion of services (or an earlier date identified in the parties’ contract).
While the IFWPA requires the hiring entity to provide a copy of the contract to the freelance worker, it does not provide when the hiring entity must provide the freelance worker with a copy of the contract. The IFWPA requires the hiring entity to retain the contract for at least 2 years.
The IFWPA prohibits hiring entities from harassing, discriminating, or retaliating against a freelance worker for exercising their rights under the IFWPA. A freelance worker may file an administrative complaint with the Illinois Department of Labor, or a civil action within 2 years of the date the final compensation was due. For a claim based on a failure to timely pay, a freelance worker is entitled to double the amount of the underpayment, as well as attorneys’ fees and costs. For a claim based on failure to enter into and provide the freelance worker with a contract, a freelance worker is entitled to a statutory award damage of the greater of $500.00 or the value of the underlying contract. For a claim based on harassing, discriminatory or retaliatory conduct, a freelance worker is entitled to the value of the underlying contract for each violation, as well as attorneys’ fees and costs.
The Illinois Attorney General may initiate or intervene in a civil lawsuit and may request the court to impose a civil penalty not exceeding $5,000.00 for each violation, or $10,000.00 for each repeat violation within a 5-year period, as well as obtain monetary damages to the state, restitution, and equitable relief.
4. Illinois Labor Dispute Act (Amendment) (Effective January 1, 2024)
This Illinois Labor Dispute Act (the “ILDA”) allows for lawful picketing on the “public rights-of-way,” which includes sidewalks, portions of a street, or the area between the street and adjacent property lines. A recent amendment to the ILDA limits the amount an employer that is affected by striking employees can recover. Under the ILDA, it will be a Class A misdemeanor with a minimum fine of $500.00 to place any object in the public way with the intent of interfering with, obstructing, or impeding a picket or other demonstration or protest.
5. Illinois Paid Leave for All Workers Act (New Law) (Effective January 1, 2024)
Under the Illinois Paid Leave for All Workers Act (the “IPLAWA”), nearly all Illinois employers will be required to provide covered employees up to 40 hours of paid leave per year (employees will be entitled to accrue one hour of paid leave for every 40 hours worked, up to a total of 40 hours per year), which can be used for any reason at all, beginning 90 days after hire or 90 days after the IPLAWA takes effect, whichever is later. The IPLAWA will not apply to school districts organized under the School Code or park districts organized under the Park District Code.
An employer must establish in writing what the 12-month period will be, and the employer has flexibility in designating the 12-month period (e.g. employee’s work anniversary date, a calendar year, an employer’s fiscal year) so long as it meets the following requirements:
- The period covers 12 consecutive months;
- The employer provides written notice of the 12-month period at hire (or on or before Jan. 1, 2024, for current employees); and
- Changes to the 12-month period must not reduce the accrual rate, and employees must receive advance notice of the change.
If an employer chooses an accrual system, it is required to allow its employees to carry over all unused, paid leave from one 12-month period to the next. If an employer chooses a front-loading system (making the minimum hours (40 pro rata) of annual paid leave available on the first day of employment or the first day of the 12-month period), it may require its employees to forfeit all unused, paid leave at the end of the 12-month period.
While an employer may require its employees to provide at least 7 days’ notice prior to taking paid leave that is foreseeable, it is required to make an exception when the leave is not foreseeable.
An employer is not required to pay out any accrued, unused paid leave upon termination of employment unless the employer credits the leave to the employee’s paid time off bank or employee vacation account. If an employee is separated from employment, but rehired by the employer within a 12-month period, the employer must reinstate previously accrued, unused paid leave.
While the IPLAWA requires an employer to provide notification policies in writing, it does not require an employer to modify its existing policies if the leave can be taken for any reason at all.
The IPLAWA will not apply to an employer covered by a municipal or county ordinance that requires employers to provide any form of paid leave to their employees, such as the Chicago Paid Sick Leave and Cook County Earned Sick Leave Ordinances.
The Illinois Department of Labor recently published FAQs on the IPLAWA.
6. Illinois Personnel Record Review Act (Amendment) (Effective January 1, 2024)
Under the Illinois Personnel Record Review Act (“IPRRA”), an employee has a right to review, obtain, copy, and correct their personnel records. A recent amendment to the IPRRA will require an employer to provide a requesting employee with a copy of their personnel records via e-mail (or mail, as required prior to the amendment). An employer can charge a fee for making copies of the personnel records up to the actual cost of the copies.
7. Illinois Transportation Benefits Program Act (New Law) (Effective January 1, 2024)
Enacted on July 28, 2023, the Transportation Benefits Program Act (HB 2068; P.A. 103-0291) (the “Act”) requires employers, with 50 or more full-time employees who work within the geographic area specified in the Act (see below), at an address that is located within one mile of a fixed-route transit service, to provide a pre-tax commuter benefit to covered employees. Under the Act, full-time employees are those who perform an average of at least 35 hours of work per week for compensation on a full-time basis. This benefit must be offered to employees after 120 days of employment.
The pre-tax commuter benefit should allow employees to use pre-tax dollars for the purchase of a transit pass via payroll deductions, such that the costs for such purchases may be excluded from the employee’s taxable wages and compensation up to the maximum amount permitted by federal tax law, consistent with 26 U.S.C. 132 (f) and corresponding rules and regulations. For 2023, the federal commuter benefits pre-tax limit is $300.00 per month ($3,600.00 annually).
The term “transit pass” is defined to include any pass, token, fare card, voucher or similar item entitling a person to transportation on a public transit under the authority of the Regional Transit Authority (RTA) or the Chicago Transit Authority (CTA). A covered employer may comply with the requirement by participating in a program offered by the RTA or CTA.
The Act applies to employers located in the following geographic locations: Cook County; Warren Township in Lake County; Grant Township in Lake County; Frankfort Township in Will County; Wheatland Township in Will County; Addison Township; Bloomingdale Township; York Township; Milton Township; Winfield Township; Downers Grove Township; Lisle Township; Naperville Township; Dundee Township; Elgin Township; St. Charles Township; Geneva Township; Batavia Township; Aurora Township; Zion Township; Benton Township; Waukegan Township; Avon Township; Libertyville Township; Shields Township; Vernon Township; West Deerfield Township; Deerfield Township; McHenry Township; Nunda Township; Algonquin Township; DuPage Township; Homer Township; Lockport Township; Plainfield Township; New Lenox Township; Joliet Township; or Troy Township.
8. Illinois Victims’ Economic Security and Safety Act (Amendment) (Effective January 1, 2024)
The Illinois Victims’ Economic Security and Safety Act (the “IVESSA”) requires all Illinois employers to provide eligible employees up to 12 weeks of unpaid, job-protected leave per year to employees who are victims of domestic, sexual, or gender violence or crimes of violence, or whose family or household members are victims. The amount of unpaid leave an employee is entitled to take depends on the size of their employer. For an employer who employs up to 14 employees, an employee is entitled to take up to 4 weeks during any 12-month period. For an employer who employs between 15 and 49 employees, an employee is entitled to take up to 8 weeks during any 12-month period. For an employer who employs at least 50 employees, an employee is entitled to take up to 12 weeks during any 12-month period. Prior to a recent amendment to the IVESSA, an employee may take unpaid leave under IVESSA:
- to seek medical attention for, or recovery from, physical or psychological injuries caused by domestic or sexual violence to the employee or employee’s family or household member;
- to obtain victim services for the employee or employee’s family or household member;
- to obtain psychological or other counseling for the employee or the employee’s family or household member;
- to participate in safety planning, including temporary or permanent relocation or other actions to increase the safety of the victim from future domestic or sexual violence; or
- to seek legal assistance to ensure the health and safety of the victim, including participating in court proceedings related to the violence
Following a recent amendment to IVESSA, an employee may take unpaid leave:
- to attend the funeral, an alternative to a funeral, or the wake of a “family or household member” killed in a crime of violence;
- to make arrangements for a family or household member killed in a crime of violence; and
- to grieve a family or household member killed in a crime of violence.
Under the IVESSA, a “family or household member” is defined as “a spouse or party to a civil union, parent, grandparent, child, grandchild, sibling, or any other person related by blood or by present or prior marriage or civil union, other person who shares a relationship through a child, or any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee, and persons jointly residing in the same household.”
For leave taken under the new, qualifying reasons, an employee is entitled to take up to 2 weeks of unpaid leave within 60 days of the employee receiving notice of the death of their family or household member.
Employers may require employees to provide 48 hours’ advance notice of their intent to take unpaid leave, unless such notice is not practicable. Employers may also require employees to provide reasonable documentation e.g. a death certificate, published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institute, or government agency.
IVESSA leave runs concurrently with FMLA leave when the reason for IVESSA leave also qualifies as an FMLA event, such as a serious health condition. If the IVESSA leave is taken for reasons other than an FMLA qualifying event, the 12-week IVESSA leave entitlement is in addition to the 12-week FMLA entitlement.
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