The Illinois Legislature has been busy this 2024 session, passing more than 10 new employment laws or amendments to existing employment laws in May 2024, only one of which in any manner affirmatively helps employers. We will summarize the laws and amendments below that have passed both houses and are waiting to be signed into law by Governor J. B. Pritzker. Importantly, this is simply a preview of what is likely coming, but any of this legislation can be amended, withdrawn, or vetoed prior to the Governor signing it into law. We will update this article when and if these bills are signed into law.
Limitation to Biometric Information Privacy Act (BIPA)
In perhaps the only amendment helpful to employers this legislative session, SB2979 provides some much-needed limitation on the concept of what constitutes a violation of BIPA. Currently, courts have been forced to interpret not only the original collection of biometric data as a violation of BIPA, but also find separate violations each time someone uses the device (i.e. each fingerprint scan), which can be multiple times per day over many years. SB 2979 states that for the purposes of both Subsections (b) and (d) of Section 15 of the Act (which prohibit collection or being in possession of biometric information without proper notice and consent), if the company is using the same biometric identifier (i.e. a fingerprint) or biometric information from the same person using the same method of collection, this will constitute a single violation of Section 15, and the person will be entitled to at most, one recovery under that section. Unfortunately, the legislation lacks language that would make the changes retroactive and protect companies that may have violated BIPA in the past. The business community is hoping retroactivity will be included before the bill is signed. (The amendment also allows a release to be signed electronically.) This bill was sent to the Governor for signature on June 14, 2024.
Changes to Illinois Human Rights Act (IHRA)
Statute of Limitations – 2 YEARS!
In perhaps the most significant of all changes to the employment law landscape in Illinois this session, the Legislature, in SB3310, has extended the statute of limitations from 300 days to 2 years for employees to file employment claims under the IHRA. (The original proposed amendment was 3 years!) (Another proposed bill, HB4821, which has not yet made its way through the legislative process, would give plaintiffs the right to file complaints in court without first going through an IDHR investigation. It is possible that this bill has been temporarily shelved while waiting for the Statute of Limitations to be expanded and will be brought up again in the future.) There is no language in the bill regarding applying it prospectively and therefore, the presumption is that it will apply retroactively, which could resurrect prior claims that have already expired under the 300- day statute of limitations but which are still less than 2 years old. This bill was sent to the Governor for signature on June 21, 2024.
Family Responsibilities
HB2161 adds "family responsibilities" to the list of classes protected from harassment and discrimination under the IHRA. "Family responsibilities" is defined as an employee's "actual or perceived provision of personal care to a family member." "Personal care" and "family member" have consistent definitions as found in the Employee Sick Leave Act, which are broad. The legislation does state, however, that it is not intended to obligate an employer to make accommodations or modifications to reasonable workplace rules or policies for an employee based on family responsibilities, including accommodations or modifications related to leave, scheduling, productivity, attendance, absenteeism, timeliness, work performance, etc. This bill was sent to the Governor for signature on June 21, 2024.
Reproductive Health Decisions
HB4867 adds "reproductive health decisions" to the list of classes protected from discrimination under the IHRA. "Reproductive health decisions" is defined as a person's decisions regarding their use of: contraception; fertility or sterilization care; assisted reproductive technologies; miscarriage management care; healthcare related to the continuation or termination of pregnancy; or prenatal, intranatal, or postnatal care. This bill was sent to the Governor for signature on June 24, 2024.
Artificial Intelligence and Zip Codes
HB3773 would regulate the use of artificial intelligence in matters relating to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment. Specifically, employers will be prohibited from using artificial intelligence that has the effect of subjecting employees to discrimination on the basis of protected classes under the IHRA. Employers will also be prohibited from using zip codes as a proxy for protected classes under the IHRA. Employers must also provide notice to employees that they are using artificial intelligence in their employment decisions listed above.
"Artificial intelligence" means "a machine- based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. Artificial intelligence includes generative artificial intelligence.
"Generative artificial intelligence" means "an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following:
1) textual outputs, such as short answers, essays, poetry, or longer compositions or answers;
2) image outputs such as fine art, photographs, conceptual art, diagrams and other images;
3) multimedia outputs, such as audio or video in the form of compositions, songs, or short form or long form audio or video: and
4) other content that would be otherwise produced by human means
This bill was sent to the Governor for signature on June 21, 2024.
New E-Verify Requirements and Possible Prohibition?
E-Verify Ban?
Employers in the United States are required by federal law to verify the identity and work authorization for each person they hire by completing and retaining Form I-9 Employment Eligibility Verification for each employee. Most employers fulfill this task through manual review of documents. The standard imposed on these employers is that the document must reasonably appear genuine on its face and relate to the person presenting it. Therefore, manual review can be somewhat subjective and may cause a fraudulent document to be accepted, particularly with improving technology used to create fake identifications. As a result, some employers will opt to use the Federal EVerify system, which allows the federal government to review and match the information provided by the employee and alert the employer if there is a potential issue.
Following the 2023 legislative session, we reported on an amendment to the Illinois Right to Privacy in the Workplace Act (SB1515), which passed both houses but was ultimately vetoed by Governor Pritzker at the request of the sponsors due to "irreconcilable drafting errors" that, in their estimation, would have an adverse effect on the workers it sought to protect. The original version of SB1515 would have outright banned Illinois employers from using the federal E-Verify system unless they were required by law to use it (such as if the employers had a federal contract). Notably, Illinois previously tried to bar the use of E-Verify in 2007, which was ultimately struck down by a federal court as a violation of the Supremacy Clause of the U.S. Constitution. A ban on the use of E-Verify would leave most employers with only the option to subjectively review documents based on the reasonableness standard.
Similar legislation was introduced this year (on a second Senate amendment to what was introduced as a shell bill in February 2023) in the form of SB0508. The bill went through numerous additional amendments and ultimately resulted in the enrolled version that was sent to Governor Pritzker for signature on June 20, 2024. The bill adds language, however, that was not in SB1515, and one may conclude that the language is either intended to bar the use of E-Verify for most employers, or is at least intended to cause enough confusion among employers to scare them into not using the system. Specifically, Section 12(a) of the Right to Privacy in the Workplace Act states.
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