In the span of 10 days in August 2024, Illinois Governor J.B. Pritzker signed into law a series of significant employment legislation, paving the way for a new employment landscape beginning in 2025 and 2026. The new legislation includes both new and amended laws:
- Increasing the time complainants have to file charges of discrimination with the Illinois Department of Human Rights to two years;
- Expanding the list of protected classes under the Illinois Human Rights Act (IHRA) to include "family responsibilities" and "reproductive health decisions";
- Adding new requirements for employers utilizing artificial intelligence in their decision-making processes, and imposing liability under the IHRA if those AI systems create a discriminatory effect;
- Creating liability for employers who mandate attendance at employer-sponsored meetings designed to share the employer's positions on political or religious matters, under the Worker Freedom of Speech Act;
- Passing long-awaited reforms to the Biometric Information Privacy Act (BIPA) that limit the number of violations an individual may accumulate under the law;
- Further adjusting the requirements for providing equal pay and benefits for day and temporary workers under the Day and Temporary Labor Services Act (DTLSA), despite a current court order holding the equal benefits obligations at bay; and
- Providing employees with expanded access to personnel records under amendments to the Illinois Personnel Records Review Act.
Illinois Lengthens Statute of Limitations and Adds Two New Protected Classes to Protections Under IHRA
In what is likely the most significant change enacted, effective January 1, 2025, employees will now have two years to file administrative charges with the Department of Human Rights after the date of any alleged civil rights violation, more than doubling the previous 300-day limitations period. In doing so, Illinois joins a growing list of states to significantly expand their filing periods, providing aggrieved employees with more time to bring charges with the Department of Human Rights and accumulate alleged damages. This change is particularly significant, as damages available under the IHRA are not capped, unlike those available for similar claims raised under the federal Title VII of the Civil Rights Act of 1964, which has a 300-day statute of limitations.
The IHRA also will prohibit employers from taking adverse employment actions against employees or applicants based on their "family responsibilities" and "reproductive health decisions." The IHRA defines "family responsibilities" as an employee's actual or perceived provision of personal care to a family member, borrowing definitions from the 2017 Illinois Employee Sick Leave Act. "Personal care" refers to all activities in which an employee engages to ensure a covered family member's basic medical, hygiene, nutritional or safety needs are met, including providing transportation to medical appointments or being physically present for emotional support to a covered family member with serious health conditions receiving inpatient or home care. A covered "family member" includes an employee's child, stepchild, spouse, domestic partner, sibling, parent, mother or father-in-law, grandchild, grandparent or stepparent.
"Reproductive health decisions" refers to an employee's decisions regarding their use of contraception, fertility or sterilization care, assisted reproductive technologies, miscarriage management care, continuation or termination of pregnancy care or prenatal, intranatal or postnatal care.
These two new protected classes buttress the various leaves available to Illinois and Chicago employees under Illinois' Paid Leave for All Workers Act, Paid Sick Leave Act and related local leave laws by expressly prohibiting businesses from discriminating, harassing or retaliating against employees for taking leave based on their "family responsibilities" or "reproductive health decisions." Importantly, while employers are prohibited from discriminating on the basis of these new protected classes, employers are not required to alter their policies or practices to accommodate an employee's family responsibilities or reproductive health decision. In other words, so long as employers apply their policies and practices (e.g., attendance, paid and unpaid leave, reasonable accommodations, etc.) consistently with the IHRA, the mere fact that an employee has family responsibilities or makes reproductive health decisions will not support an independent basis for a discrimination, harassment or retaliation claim.
Illinois Enacts Landmark Law Governing AI in Employment
On the same day the list of protected classes under the IHRA expanded, Governor Pritzker also signed HB 3773, which further targets employers' use of AI in employment decision-making processes and becomes effective January 1, 2026. HB 3773 is broader than other regulations, defining AI as "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," and includes generative AI.
Under HB 3773, employers may not use AI that has a discriminatory effect on employees based on their protected classes or uses ZIP codes as a proxy for a protected class. The law also requires employers to provide notice to employees and applicants when using AI for "recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment[.]" For enforcement, the law charges the Department of Human Rights to create rules governing the circumstances, timing and means for providing notice. Unlike similar AI statutes in New York City and Colorado, the Illinois law does not require businesses to audit their AI systems, although this practice would naturally help identify potentially discriminatory effects.
Illinois employers will recall that HB 3773 is not the state's first foray into regulating AI in the workplace. In 2020, Illinois passed the Artificial Intelligence Video Interview Act, which requires employers to satisfy specific policy, notice and written acknowledgement requirements (similar to BIPA) prior to using voice and video recognition software for evaluating applicants or screening for in-person interview selection. This renewed focus on AI in the workplace continues to capture the Illinois Legislature's attention, with additional laws (HB 4875 and HB 4762) prohibiting the use of an employee's digital likeness or replica in marketing or advertising materials without proper authorization also signed by Governor Pritzker on August 9, 2024.
Illinois Places Curbs on Employers' Use of "Mandatory" Meetings on Religious or Political Matters
On July 31, 2024, Illinois became the latest state to pass legislation against what has commonly been called "captive audience" meetings or "mandatory" meetings during work hours organized to compel employees to listen to the employer's religious or political positions, including, most notably, meetings intended to discourage employees from unionizing. While the new Worker Freedom of Speech Act does not prohibit businesses from holding meetings or issuing communication on these topics, it does preclude an employer from making them nonvoluntary. Employers are prohibited from taking any adverse action against an employee for declining to attend such meeting or from threatening adverse action as a means to induce attendance. "Voluntary" means that an employee does not receive incentives (e.g., pay, benefits or positive job terms or conditions, etc.) based on their attendance. Employers are still permitted to communicate information and conduct mandatory meetings as required by law (such as workplace harassment prevention training) or as necessary to perform the job. Additional exceptions may apply to specific industry employers, such as higher education, political and religious organizations and certain nonprofit entities. Employers also must post a notice of employee rights under the Worker Freedom of Speech Act within 30 days of the effective date, which we expect will be available from the Illinois Department of Labor near year-end. Employers face $1,000 fines from the Illinois Department of Labor for violations and also will be subject to private rights of action.
At least one public interest group already has filed suit against the Illinois Department of Labor to challenge the new law on constitutional freedom of speech grounds, which we will monitor and provide updates on in future Alerts. Absent legal action that stays enforcement, the Worker Freedom of Speech Act will go into effect on January 1, 2025.
Illinois Reduces Remedies Under BIPA
Following the February 2023 landmark decisions handed down by the Illinois Supreme Court in Cothron v. White Castle Systems and in Tims v. Black Horse Carriers, Inc., the Illinois Legislature amended BIPA, the nearly two-decade old biometric information privacy law that has prompted over 3,000 class action lawsuits against businesses since 2017 alone. Effective August 2, 2024, when Governor Pritzker signed SB 2979 into law, an individual plaintiff's remedies under BIPA now are limited to one single violation against a business, even if the plaintiff's biometric data was unlawfully collected, retained, purchased or disclosed on more than one occasion. The BIPA amendment also confirmed that businesses may obtain the required BIPA authorizations from individuals via electronic signature.
SB 2979 overrules Cothron, in which the Illinois Supreme Court held that each unlawful collection or dissemination of a person's biometric data resulted in a new violation and, once proven, an award of statutory damages of $1,000 per violation (or $5,000 per willful violation). For businesses that collect biometric information (such as fingerprints or retina scans) multiple times per day (for example, as employees clock in and out), these damages added up quickly. With the long-sought amendment to the statute now providing that violations must be measured on a per-person rather than per-scan basis, employers hope class action litigation under BIPA will slow down.
Illinois Takes Third Try at Equal Pay Rights for Day and Temporary Workers
For the third time in the last year, the Illinois Legislature amended the DTLSA in its efforts to implement equal pay reform for day laborers and temporary workers. Effective as of Governor Pritzker's signature on August 9, 2024, temporary laborers performing more than 720 hours of work within a 12-month period for the same third-party client shall receive pay that is equivalent to the closest comparable direct-hire employee of that same third-party client. The latest amendment provides that staffing agencies may calculate the proper "equal" wage under one of two methods: (1) using the straight time wage rate of a directly hired comparator employee of that same third-party client or, if there is no comparator employee, the lowest paid nonexempt employee with comparable seniority, or (2) at the third-party client's discretion, using data from the Bureau of Labor Statistics for workers in the same job classification and within the same geographic area.
The amendment softens the prior requirement to provide temporary laborers with "equal benefits" as the client company's employees providing the same or similar duties, and instead now requires the staffing agency to provide only "substantially similar benefits" (undefined in the legislation) or the cash equivalent of the actual cost of such benefits. This change attempts to circumvent the preliminary injunction entered by the U.S. District Court for the Northern District of Illinois on March 11, 2024, which found that the Employee Retirement Income Security Act likely preempted the equal benefits mandate and barred further enforcement of the provision. Regardless of the legislative change, the court's order barring enforcement is still effective, meaning the equal benefits provision of the law will not be enforced until the litigation on this issue is concluded.
Once a temporary laborer reaches 720 hours within a 12-month period, third-party clients are required to honor any request from the staffing agency for comparator pay and benefits information, though the equal pay and substantially similar benefits requirements will not apply where the comparator employees at the third-party client are subject to their own collective bargaining agreement. Finally, the amendments also further clarify the mandated safety training and notice obligations for agencies and their third-party clients.
New Employer Requirements for Production of Employee Personnel Records
Effective January 1, 2025, Illinois employers have new obligations under the Personnel Records Review Act for responding to a current or former employee's request to review or obtain a copy of their personnel records. First, a request for records (up to two times per year or as provided in a collective bargaining agreement) is now required to be in writing under the express terms of the statute. Although the Legislature failed to provide a more specific definition of the general category of "personnel documents" that long have been covered under the statute, the amendment adds the following new categories of documents to those that are covered under an employee's general inspection rights:
- Employment-related contracts or agreements that the employer maintains are legally binding on the employee;
- Any employee handbooks that the employer made available or that the employee acknowledged receiving; and
- Any written employer policies or procedures that apply to the employee and that concern qualifications, promotion, transfer, compensation, benefits, discharge or disciplinary action.
Employers are permitted to require that a record request meet stated parameters, such as that it be submitted to human resources or other specific company official, specify the records requested and manner of delivery, include a waiver for release of medical records, etc. Employers may also comply by providing instructions to employees to pull down records that already are accessible to the employee. Employer fees for production of the records now are limited to actual duplication charges and may not include staff time or equipment-related costs. The Legislature also has added an employer's "trade secrets, client lists, sales projections, and financial data" as a new category of documents that is expressly excepted from production to an employee. Finally, the amendment permits an employee to file suit where resolution by the Illinois Department of Labor has failed, or it so certifies, within 180 days of the filing of a complaint with the department. Available damages remain the same: actual damages, plus costs, and an additional $200 plus attorneys' fees for willful and knowing violations.
What Does This Mean for Employers?
The expanded list of protected classes under the IHRA will arm the plaintiffs' bar with a direct and more valuable way to sue employers under the IHRA, rather than seeking wages or technical violations of the paid leave and sick leave laws, which lack teeth comparatively. Together with the increased amount of time to file discrimination charges and the broader right to obtain copies of employer records up front, employees will be better positioned to enforce their rights. Illinois employers are therefore encouraged to update their EEO-protected classes and also review their leave and records access policies and employee handbooks for compliance―in both form and practice―with the new requirements as well as with the various recent leave laws enforced in Illinois, Chicago and Cook County.
In addition, businesses that choose to incorporate AI into their HR activities should audit any discriminatory effects created by such algorithms or programs and confirm they have the necessary policies, notices and acknowledgements in place rather than relying on compliance statements from software creators or HRIS vendors.
Beginning in 2025, employers will need to have heightened awareness about what meetings they designate "mandatory," and should consider carefully whether to use incentives or other forceful language to encourage participation whenever any topic or discussion may be considered related to "religious" or "political" matters. Employers who are or who use staffing agencies should ensure again that their wage payment, notice and employee training practices satisfy the updated requirements under the amendments to the DTLSA.
Finally, although businesses may breathe a small sigh of relief from the curb on BIPA's crippling damages, companies collecting biometric data from their workforce still must remain vigilant with any collection, storage and destruction policies and notice and authorization procedures to ensure compliance with the law.
For More Information
If you have any questions about this Alert, please contact Daniel O. Canales, Jennifer Long, Zev L. Grumet-Morris, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
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