Time to catch up with the new laws passed during the chaos of the pandemic

Below are highlights of some key Illinois employment laws passed since January 2020 which you may have missed in the mayhem of the pandemic, supply chain struggles and difficulties finding and keeping employees.

Please note that this article only provides notice of certain new laws and should not be relied upon as legal advice.

1. Restrictive covenants

If you haven't updated your noncompete and non-solicitation contracts recently, it's time to do so now. Under amendments to this law (eff. Jan. 1, 2022), Illinois businesses may no longer enter into restrictive covenants with employees who don't earn or are not expected to earn more than (a) $75,000 in the case of noncompete agreements; or (b) $45,000 in the case of non-solicitation agreements. The amendments also codify and (somewhat) clarify case law requiring "adequate consideration" to support restrictive covenants.

Additionally, you must advise employees that they have 14 days to review the agreement and should consult with an attorney. Additional limits apply to restrictive covenants in the construction industry and in connection with certain termination or layoffs. Nondisclosure agreements are not subject to these restrictions.

2. Criminal record discrimination prohibited

The Illinois Human Rights Act has been amended to make discrimination against an applicant or employee on account of a criminal record unlawful unless the employer: (a) analyzes the relationship between the crime and the job; (b) notifies the individual of a preliminary decision if adverse; (c) engages in an interactive process with the individual; and (d) if the final decision is still adverse, provides the individual notification of the final decision along with specific information.

3. Sexual harassment and discrimination

• Arbitration clauses. Many employers have adopted mandatory arbitration clauses and class action waivers in their employment agreements to limit extremely costly class or collective action lawsuits. As of Feb. 10, 2022, a new federal statute prohibits mandatory arbitration of disputes concerning sexual harassment or sexual assault.

• Training. Since the (relative) eve of the COVID-19 pandemic shutdowns (January 2020), Illinois employers have been required to provide annual sexual harassment training to all of their employees. Restaurants must provide additional training specific to that industry.

4. Biometric timekeeping

The Illinois Biometric Information Act has become a springboard of costly class action litigation following recent rulings by Illinois courts which have made BIPA litigation more appealing by: (1) not requiring an employee to demonstrate actual harm to recover damages (2019); and (2) ruling that employers may not use the workers' compensation exclusivity defense to avoid liability (2022).

An important case is pending before the Illinois Supreme Court relating to the statute of limitations which, depending upon the decision, may limit the time employees have to file claims under BIPA and substantially reduce recoverable damages. In the meantime, if you have a BIPA device, liability can be easily avoided by adopting a BIPA compliant policy and obtaining written consent from all employees who use the device.

5. Handbooks and posters

If you haven't updated your handbook or employee rights posters since the beginning of the pandemic, it's time to do so now to address, for example: (a) expanded leave entitlements under the Victims' Economic Security and Safety Act; (b) changes (and pending legislation) regarding drug testing for cannabis; (c) expanded bereavement leave (now includes miscarriages, failed adoptions or surrogacy, and treatments for or diagnosis of infertility); (d) expanded rest and meal requirements and new penalties under the One Day Rest in Seven Act; and, (e) new law prohibiting discrimination against employees with hairstyles associated with race (eff. Jan. 1, 2023).

• Jennifer Adams Murphy is an attorney at Wessels Sherman. She can be reached at (630) 377-1554 or via email: jemurphy@wesselssherman.com.