November, 2003

TO:     Clients and Friends

RE:     CHANGES IN ILLINOIS EMPLOYMENT LAW

A.       New In 2004

On January 1, 2004 there will be several significant changes to Illinois law that may affect your Human Resource policies:

Minimum Wage

 The minimum wage will increase from $5.15 to $5.50 per hour.  On January 1, 2005 , the minimum wage will again be increased, to $6.50 per hour.

Criminal Records

An expunged or sealed criminal record may not be considered in employment matters.  If an employer inquires into an applicant's criminal history, the employee's application for employment must contain specific language which states that "the applicant is not obligated to disclose sealed or expunged conviction or arrest records."  Further, employers may not ask if an applicant has had conviction or arrest records sealed or expunged.

Equal Pay Act

The Illinois Equal Pay Act has been modified to prohibit employers from discharging or otherwise discriminating against any individual for inquiring about, disclosing, comparing, or otherwise discussing the wages of any employee, or aiding or encouraging others to assert their rights under the Act.  Further, an employer may not "interfere" with the exercise of an employee's rights under the Act.  An employee who is discharged in violation of the Act may sue for "legal and equitable relief appropriate to effectuate the purposes of the Act", front pay, back pay, lost benefits and liquidated damages.  If suit is brought by the Department of Labor, a civil penalty of up to $2,500.00 "per violation" may be assessed.  Handbooks or Employee Manuals should be modified to delete any prohibition against an employee discussing his or her wages with another employee.  Please be advised, however, that the Act does not specifically require an employer to provide employees with information about other employee's wages, bonuses, or merit increases.

B.        VESSA

On August 25, 2003 the Victims Economic Security & Safety Act (VESSA) took effect.  VESSA requires Illinois employers to provide up to twelve weeks of unpaid leave to victims of domestic or sexual violence, or to those who have a family or household member who is a victim of domestic or sexual violence.  VESSA applies to any Illinois employer that employs fifty or more employees in toto, regardless of the number of employees employed by the employer at any particular Illinois facility.

VESSA follows the same basic framework as the Family and Medical Leave Act (FMLA).  However, unlike the FMLA, employees are not subject to minimum length of service or hours worked requirements.  VESSA entitles an employee to leave if the individual is a victim of domestic or sexual violence or has a family or household member who is such a victim and the leave is for one or more of the following reasons: (1) seeking medical attention for physical or psychological injuries; (2) obtaining victim services; (3) obtaining psychological or other counseling; (4) participating in safety planning; (5) temporarily or permanently relocating; or (6) seeking legal assistance or remedies to ensure the safety of the employee or the employee's family or household member, including time off for civil or criminal hearings.

For purposes of VESSA, a "family or household member" is a spouse, parent, son, daughter, or any person jointly residing in the same household.  The "jointly residing" provision may allow VESSA to be interpreted as allowing same sex roommates and same sex domestic partners rights under VESSA.

VESSA specifies that it does not create a right to take unpaid leave that exceeds the unpaid leave time allowed under, or is in addition to, the unpaid leave permitted by the FMLA.  Although this restriction would seem to preclude separate VESSA and FMLA accruals, the lack of regulation and case law allows for other interpretations.  Thus, it is unclear whether this limitation will be interpreted to allow a victim of domestic violence to take twelve weeks VESSA leave and then to take twelve weeks FMLA leave unrelated to VESSA leave or, whether VESSA leave will "use up" any FMLA leave that is not VESSA related.

VESSA further requires that an employer reasonably accommodate the victim's "known limitations."  VESSA provides that in response to "actual or threatened domestic or sexual violence," reasonable accommodations may include an "adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, or modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, or implementation of a security procedure, unless such accommodation would impose an undue hardship.

VESSA also requires the posting of a notice summarizing both the requirements of VESSA and information pertaining to the filing of a charge.  The notice must be posted in a conspicuous place where notices to employees are customarily posted.  A sample notice may be found on-line at www.state.il.us/agency/idol.  Click on "Required Posters".

If you wish to discuss the implications of these changes to Illinois law or have any questions relating to the details of the laws, please contact any attorney at the Firm.