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Illinois Legislative Update: Amendments to the Illinois Human Rights Act and Illinois Wage Payment and Collection Act

In the week of Aug. 24, 2018, Governor Bruce Rauner approved amendments to the Illinois Human Rights Act (IHRA) and the Illinois Wage Payment and Collection Act (IWPCA). The IHRA amendments go into effect immediately and increase the timeframe for employees to file a charge; restructure the Illinois Human Rights Commission (the Commission); and allow employees to opt out of the Illinois Department of Human Rights’ (IDHR) investigative process. The IWPCA amendments go into effect Jan. 1, 2019 and require employers to reimburse employees for costs that are incurred in direct relation to their work for the employer.

Human Rights Act Amendments

On Aug. 24, 2018, Governor Rauner signed into law Public Act 100-1066, which makes three changes to the IHRA. First, employees now have 300 calendar days, as opposed to 180 calendar days, from the date of an alleged civil rights violation to file a charge with the IDHR. While seemingly a significant change, this amendment simply parrots the timeframe that employees within the state of Illinois have to file a charge with the Equal Employment Opportunity Commission.

Second, the IHRA amendments restructure the composition of the Commission in an effort to decrease the backlog of cases and increase the expediency of the administrative process. Effective Jan. 1, 2019, the Commission will be comprised of seven full-time members instead of the current 13 part-time members. The commissioners are selected by the governor, approved by the state senate, and must meet one of the following three qualifications: (1) licensed to practice law in the state of Illinois; (2) at least three years of experience as a hearing officer at the Commission; or (3) at least four years of professional experience working with individuals or corporations affected by the IHRA or similar laws in other jurisdictions. The Commission will provide staff attorneys and training for the newly appointed commissioners. While the amendments go into effect immediately, the current commissioners will remain in their positions until at least Jan. 1, 2019.

Finally, and most significantly, the IHRA amendments allow for employees to opt out of the IDHR’s administrative investigation and immediately bring a lawsuit in the Illinois state circuit courts. Within 10 days of an employee filing a charge with the IDHR, the IDHR must send the employee notice of his/her right to opt out of the IDHR’s investigative process. An employee has 60 days from receipt of the IDHR’s notice to submit a written request seeking permission to opt out of the investigative process. If the employee chooses to opt out, the IDHR has another 10-day period to respond to the employee’s request. The right to opt out will not require a factual or legal determination by the IDHR. Once the employee receives a notice indicating that the request to opt out is granted, the employee has 90 days to file a suit in circuit court. 

Wage Payment and Collection Act Amendments

On Aug. 26, 2018 Governor Rauner signed Public Act 100-1094 into law, requiring employers to reimburse employees for costs incurred in connection with their employment. The amendments require employers to reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” The remedies available are those generally outlined in the IWPCA, which, in addition to the reimbursement amount, include damages equal to 2 percent of the underpayment per month of non-payment.

Employers may craft written reimbursement policies and, if they do, employees must comply with an employer’s reasonable policy to gain entitlement to reimbursement. Employees must submit any necessary expenditure with supporting documentation within 30 days of incurring any such expense, unless the employer’s policy provides for additional time. Employers are not required to reimburse an employee who does not comply with the employer’s written policy.

What Do These Amendments Mean for Employers?

The Illinois plaintiffs’ bar may well take advantage of the amendments to the IHRA. Complainants before the IDHR may now quickly bypass the IDHR investigation and file their claims in state circuit courts, forcing employers to engage in a costly litigation process and possible jury trials. Given the new workaround and the extended time for filing IDHR charges, employers should be prepared for an increase of complaints first filed with the IDHR and a decline of those first filed with the EEOC, as well as more state court discrimination litigation.

The IWPCA amendments were written with an eye towards compensating employees who use personal cell phones for work purposes and employers’ failure to reimburse employees for the work-related costs incurred through use of personal devices. Employers should be vigilant in implementing reimbursement policies to minimize any liability that may be created through failure to comply with the IWPCA’s new reimbursement provisions.