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Illinois Enacts More Wide Sweeping Employment Laws

Workplace Transparency Act; amendments and expansions to the State Equal Pay Act; and the Artificial Intelligence Video Interview Act Impacts Most Illinois Employers

The following Acts or amendments have been recently signed into law.

Workplace Transparency Act

Governor J.B. Pritzker signed the Workplace Transparency Act on August 9, 2019. The Act applies to all employers in the State and takes effect immediately, except for the broader employment changes impacting restaurants, bars, hotels and casinos which take effect January 1, 2020. The law:

• Restricts inclusion of non-disclosure and non-disparagement provisions in employment agreements, separation agreements, and settlement agreements,

• Limits an employer’s ability to require mandatory arbitration of sexual harassment or other discrimination claims;

• Mandates annual sexual harassment training;

• Requires employers to report settlements and adverse judgments to the Illinois Department of Human Rights; and

• Establishes new civil penalties for noncompliance.

Originally drafted as SB 75 (Hotel Casino Employee Safety Act) but was later added to the Workplace Transparency Act. It requires hotels and casinos to provide a safety or notification device to employees who work in guest rooms, restrooms, or on the casino floor “under circumstances where no other employee is present in the room or area” for summoning help if the employment reasonably believes there is an ongoing crime, sexual harassment or assault or other emergency. Additionally, hotels and casinos must develop or modify their anti-sexual harassment policies “to protect employees against sexual assault and sexual harassment by guests.”

Amendments to the Illinois Equal Pay Act

Governor J.B. Pritzker signed Public Act 101-1077 on July 31, 2019 and the new law, which amends the Equal Pay Act of 2003, takes effect on September 29, 2019. The law prohibits employers from:

• Screening job applicants based on their current or prior wage or salary history;

• Requiring that an applicant’s prior wages satisfy minimum or maximum criteria;

• Requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant discloses prior wages or salary;

• Seeking the salary, including benefits or other compensation or salary history, of a job applicant from any current or former employers. This provision does not apply when the applicant’s salary is a matter of public record or where the applicant is a current employee applying for an internal position.

If a job applicant voluntarily discloses his or her current or prior salary, the employer has not violated the Act as long as they do not consider the voluntary disclosure in deciding whether to make a job offer or in setting compensation.

Violations can land employers with:

• Costs and reasonable attorney’s fees;

• Injunctive relief;

• A civil penalty not to exceed $5000 for each violation for each employee affected;

• Special damages, not to exceed $10,000; and

• Compensatory damages only to the extent such damages exceed the amount of special damages.

The Act expands the protections provided by the state Equal Pay Act and prohibits sex-based discrimination when employees are performing substantially similar work on jobs requiring “substantially similar skill, effort and responsibility.” The revised act states that a differential based on any factor other than sex or a factor that would constitute unlawful discrimination under the Illinois Human Rights also must:

• Not be based on or derived from a differential in compensation based on sex or another protected characteristic;

• Be job-related with respect to the position and consistent with a business necessity; and

• Account for the differential.

An employee who has been paid less than what s/he is entitled may recover:

• Underpayment of wages plus interest;

• Compensatory damages if the employee demonstrates the employer acted with malice or reckless indifference;

• Punitive damages;

• Injunctive relief; and

• Reasonable attorney’s fees and costs.

Artificial Intelligence Video Interview Act

Governor J.B. Pritzker signed the Artificial Intelligence Video Interview Act on August 9, 2019 and the law goes into effect on January 1, 2020. Under the Act, employers using videotaped interviews to fill a position may use AI to analyze the interview footage only if the employer:

  1. Notifies the applicant that the videotaped interview may be analyzed using AI for purposes of evaluating the applicant’s fitness for the position;

  2. Provides the applicant with information on how the AI works and what characteristics it uses to evaluate applicants; and

  3. Obtains consent from the applicant to use AI for an analysis of the video interview.

Prior to recording the interview, the employer must also obtain consent from the applicant to videotape the interview with or without the use of AI. An employer does not have to consider an applicant who refused to provide consent for the use of AI to evaluate the candidate.

Other restrictions include:

• The employer cannot share applicant videos, except to individuals who have expertise or technology necessary to evaluate the candidate’s fitness for the position;

• The employer must comply within 30 days to an applicant’s request that the video interview be destroyed; and

• The employer must also instruct others who have received a copy of the applicant’s video to destroy it.

Although not specified it is assumed that the Act applies to all employers seeking to fill positions in Illinois and protects any candidate for that position regardless of where the interview occurs.

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