January 1, 2020

Cannabis Regulation and Tax Act

Illinois Governor J.B. Pritzker signed House Bill 1438 (HB1438), a bill that legalizes medical and recreational cannabis use for adults. It goes into effect on January 1, 2020.

HB1438 creates provisions regarding an employer’s rights. Section 10-50 of the bill states that employers may:

  • Adopt reasonable zero-tolerance or drug free workplace policies.
  • Have drug testing policies in place.
  • Prohibit employees from using or being under the influence of cannabis in the workplace or while performing job duties.
  • Prohibit employees from storing cannabis in the workplace.

Employers may implement the above policies as long as they are applied in a non-discriminatory manner.

HB1438 creates allowances for employers to discipline employees, including termination, for violations of their workplace drug policies. It also provides guidance to help employers determine if an employee is under the influence while on the job. Employers must have a “good faith belief” that an employee “manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of their job, including”:

  • Symptoms related to speech, dexterity, agility, coordination, demeanor or irrational behavior.
  • Negligence or carelessness while operating machinery or equipment.
  • Showing no regard for the safety of others.
  • Being involved in an accident that resulted in serious damage to property or equipment.
  • Disrupting production or a manufacturing process.
  • Carelessness that causes any type of injury to another employee or anyone else.

Before initiating any type of discipline, the employer must give an employee a “reasonable opportunity” to refute the basis of the determination that the person was under the influence.

Amendment To The Equal Pay Act Of 2003

Illinois Assembly Bill 881 (AB881), like House Bill 834, updates an existing law known as The Equal Pay Act Of 2003.

AB881 states that no employer may:

  • Discriminate between employees on the basis of sex by paying one person at a lower rate than another if the individuals do the same or substantially similar work that requires equal skill, effort and responsibility and is performed under similar working conditions.
  • Pay wages to African-American employees that are less than they pay to other employees who perform substantially similar duties that require equal skill, effort and responsibility and are performed under similar working conditions.

The bill creates some exceptions to the above. Employers may pay different wages because of a:

  • Seniority system;
  • Merit system;
  • System that measures earnings by quantity or quality of production; or
  • Differential based on any other factor other than:
    (i) race or
    (ii) a factor that would constitute discrimination under the Illinois Human Rights.

The Job Opportunities for Qualified Applicants Act

This is a Ban the Box bill that states employers with 15 or more employees may not inquire about an applicant’s criminal history until after the person is deemed qualified and selected for an interview or given a conditional job offer. These requirements do not apply for positions in which:

  • Existing law requires an employer to exclude applicants with certain types of convictions.
  • A fidelity or equivalent bond is required and having certain types of criminal records would disqualify an applicant from obtaining such a bond.

The Act also creates civil penalties for employers who are found to violate these laws.

Effective September 1, 2019

Illinois Updated The Equal Pay Act of 2003

Illinois passed House Bill 834 (HB834), which amends the Equal Pay Act of 2003. It prohibits employers from:

  • Requiring applicants to disclose their salary history.
  • Inquiring about an applicant’s salary from other sources (such as a former employer).
  • Screening applicants based on their salary history.
  • Requiring a candidate's salary satisfy a minimum or maximum criteria.

HB834 adds that employers may not “discriminate between employees on the basis of sex by paying wages to an employee at a rate less than the rate at which the employer pays wages to another employee of the opposite sex for the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”

There are exceptions. Employers may adjust compensation based on:

  • A merit system.
  • A system that measures “earnings by quantity or quality of production.”
  • A seniority system.
  • Job-related differentials based on other factors that would not constitute unlawful discrimination under the Illinois Human Rights Act

HB 834 also creates penalties for violations. They include:

  • An employee who earned less than others that do comparable work may be able to recover the amount they were underpaid.
  • Employers may be liable for additional compensatory damages if they are found to have acted with malice or reckless indifference.
  • Reasonable costs and attorney fees may also be passed on to an employer for confirmed violations.

Ban The Box

The Illinois Ban the Box law applies to state employers with fifteen or more employees. Employers may inquire about criminal records after an interview or a conditional offer is extended. Job applications may not include questions about arrests or convictions.

Exemptions exist for positions in which federal or state law requires employers to exclude applicants who have any type of criminal record or the position requires the applicant to obtain a bond and having a criminal record would prevent the person from obtaining that bond.

If an applicant is found to have a criminal record, the state employer shall run an individualized assessment on the person in which they consider:

  • The nature and gravity of any offense.
  • How much time has passed.
  • The nature of the position.

Criminal Records Obtained From State Police

If a background check produced by a consumer reporting agency includes a criminal conviction record from the Illinois Department of State Police, then the agency must send the applicant a copy of that record. If anything is incorrect about the criminal record, then the applicant has seven days to file a dispute.

Consideration Of Arrest Records

Employers may not consider criminal convictions that were sealed, expunged or impounded.

Employee Credit Privacy Act

Employers may not use credit reports when making hiring decisions unless there is a bona fide occupational requirement such as:

  • State or federal law requires the person in the position to be bonded.
  • The employee would have unsupervised access to cash or materials worth $2,500 or more.
  • The position provides signatory power over business assets of $100 or more per transaction.
  • A managerial position that has control over the direction of the business.
  • The position provides access to confidential, financial or related data.
  • Another occupational requirement exists.
Backgrounds Online provides details about State Laws for informational purposes only. We do not provide legal services. Nothing on these pages or our site should be considered as legal advice or opinion.