Labor Law Updates for April – 2021

INFINITI HR is happy to provide Monthly State Law Updates as a service to our subscribers. These briefs provide a general description and are not meant to be all inclusive of compliance requirements. This list is not inclusive of all legislative changes for employers across the U.S. Changes may have been addressed in previous updates, which can be accessed from our blog.

Employers are encouraged to work with their Inspiring HR Consultant before making policy changes to capture the full requirements of these laws.

 Some of the notable upcoming State Changes in this issue are as follows:

CALIFORNIA

California – Rehire Program – Effective 4/16/2021

New CA legislation – SB 93 requires certain employers in the hospitality industry to offer rehire opportunities to those qualified employees who were laid off for reasons due to Covid-19 prior to January 2020.  Affected employers include hotels, event centers, building and airport service providers, airport hospitality and private clubs and specific detailed records must be maintained for 3 years.  The requirements are set to expire on December 31, 2024.

ILLINOIS

Chicago, Illinois – Vaccine Anti-Retaliation Ordinance – Effective April 21, 2021

The City of Chicago enacted the Vaccine Anti-Retaliation Ordinance which provides all workers in Chicago with rights to obtain COVID-19 vaccinations during their work hours and imposes significant penalties for employer violations who require employees to get vaccinations on the worker’s own time.

The IL COVID vaccine ordinance, as detailed in our March Update, states employers that require their workers to get vaccinated must compensate the worker at the worker’s regular rate of pay for the time the worker takes to get the vaccination, up to four hours per dose, if the vaccination appointment time is during a shift. Employers requiring that their workers get vaccinated may not require the worker to use paid time off or paid sick leave for the missed time.

The potential penalties against employers and remedies to workers are also significant. Employers found in violation of the Vaccine Anti-Retaliation Ordinance shall be liable for a fine of between $1,000 and $5,000.  Additional damages payable to employees who file a civil action for violations also apply.

The Ordinance will be lifted when the Commissioner of Public Health makes a written determination that the threat to public health posed by COVID-19 has diminished to the point that the ordinance can safely be repealed.

Illinois – Equal Pay Act – Effective April 2021

The Illinois legislature recently passed legislation amending the Business Corporations Act and the Illinois Equal Pay Act (IEPA). The IEPA is the state statute to ensure that individuals are compensated without to regard to their sex or race. While this amendment does not add any protected categories to the IEPA’s provisions, it does implement new requirements for employers.

Report EEO Data in Annual Reports to Secretary of State

This amendment requires each corporation that is required to file an EEO-1 report (100+ EE’s) to include in annual corporate reports filed with the IL Secretary State information substantially similar to employment data required by Section D of the federal EEO-1 form. The Secretary of State will publish data on the gender, race, and ethnicity of corporation’s employees on the Secretary of State’s website. This obligation applies to corporate reports filed on or after January 1, 2023.

New Equal Pay Certificate Obligation for Employers with More Than 100 Employees

New legislation requires private employers with more than 100 employees in Illinois to obtain an “equal pay registration certificate.” To obtain the certificate, the employer must provide EEO-1 data plus the total wages paid to each employee during the prior calendar year. The Illinois Wage Payment and Collection Act, which includes wages, salaries, earned commissions, and other forms of compensation.

The employer also must submit a statement signed by a corporate officer, legal counsel, or other authorized agent of the business for each county in which business has facility or employees that includes the following representations:

1. The business is in compliance with Title VII, the Equal Pay Act of 1963, the Illinois Human Rights Act, the Equal Wage Act, and the Equal Pay Act of 2003;
2. The average compensation for its female and minority employees is not consistently below the average compensation, as determined by the Illinois Department of Labor (IDOL) rules, for its male and non-minority employees within each job categories in the Employer Information Report EEO-1 report for which an employee is expected to perform work;
3. The business does not restrict employees of one sex to certain job classification and makes retention and promotion decisions without regard to sex;
4. Wage and benefit disparities are corrected when identified; and
5. The business reports how often the employer evaluates wages and benefits to ensure compliance with above-listed statute.

The certification requires the employer to certify whether it uses certain approaches in setting compensation and benefits. An employer who does not obtain a certificate or whose certificate is suspended or revoked after the IDOL investigation is subject to mandatory civil penalty equal to 1% of “gross profits.” Existing corporations must obtain certificates within three years after the effective date of the new law. Recertification is required every two years.

Illinois – Human Rights Act – Effective March 23, 2021

Illinois currently has a ban-the-box law restricting employers from asking about criminal history generally until after an interview. Illinois is now poised to join the ranks of states that either prohibit or limit employers’ ability to evaluate applicants’ and employees’ criminal conviction record, but also Illinois will implement a retaliation standard that more heavily favors employees. The Illinois legislature has amended the IL Human Rights Act and the Governor is likely to sign this legislation. These changes will make substantial changes to an employers’ hiring and employment practices. One such amendment put in place new procedures that must be followed if an employer seeks to disqualify an applicant or employee based on a criminal record;

Amendment to IL Human Rights Act Regarding Criminal Convictions

The current language in the Illinois Human Rights Act (IHRA) prohibits discrimination, harassment, and certain forms of retaliation. This recent amendment will make it a civil rights violation for employers to discriminate against individuals based upon their conviction record unless

1. There is a “substantial relationship” between the offense at issue and the individual’s employment; or
2. The individual’s employment involves an unreasonable risk to property or the safety of specific individuals or general public.

If either of these criteria are met, then the employer may consider and individuals conviction record in making an employment decision.

This amendment goes to great lengths to limit what constitutes a “substantial relationship” or “unreasonable risk”.

Substantial Relationship: Considers whether the job offers an opportunity for the same offense to occur and whether the circumstances leading to the conduct for which the individual was convicted will recur in the job.

The relevant factors to consider for either substantial relationship or an unreasonable risk to property and safety are:

1. The length of time since conviction.
2. The number of convictions that appear on an individual’s conviction record.
3. The nature and severity of the conviction and its relationship to the safety and security of others.
4. The facts or circumstances surrounding the conviction.
5. The age of the individual at the time of the conviction.
6. The evidence of rehabilitation effort.

This requires the employer to conduct a fact-specific inquiry and analyze all of the previous factors. If the employer makes a preliminary decision to disqualify the individual after considering the above factors, then the employer must notify the individual in writing of the preliminary determination.

The employer must then provide the affected individual five business days to respond before the employer engages in an interactive process and considers information provided by the applicant about why the conviction should not be considered or be dispositive before deciding to disqualify the applicant.

Suppose the employer decides to move forward to disqualify the individual. In that case, they must provide a written final notice identifying the conviction at issue, explain the basis for the decision, advise any internal procedures for requesting reconsideration, and advise the employee or applicant of the right to file a charge of discrimination.

VIRGINIA

VA – Minimum Wage Increase – Effective 5/1/2021

Barring any last-minute intervention, Virginia’s minimum wage for non-exempt employees will rise to $9.50 per hour on May 1, 2021. Employers should prepare now by reviewing pay rates and budgeting for any required increases.

In 2020, the General Assembly passed legislation to raise the minimum wage in stages to $15.00 per hour, and to eliminate certain minimum wage exceptions.

The scheduled new hourly amounts are as follows:

• Effective May 1, 2021: $9.50
• Effective January 1, 2022: $11.00
• Effective January 1, 2023: $12.00
• *Effective January 1, 2025: $13.50; and
• *Effective January 1, 2026: $15.00

Tipped minimum wage continues at $2.13 per hour. “Tipped employees” are defined as employees who regularly receive over $30.00 per month in tips.

Under the new law, employers may pay a “training wage” at 75 percent of the minimum wage for employees in on-the-job training programs lasting less than 90 days.

The law also applies Virginia minimum wage to persons:

• whose employment is covered by the Fair Labor Standards Act,
• employed in domestic service in a private home, persons normally paid on the amount of work done,
• with intellectual or physical disabilities (except those whose employment is covered by a special certificate issued by the U.S. Secretary of Labor),
• employed by an employer with less than four employees, and
• minors under the jurisdiction of a juvenile and domestic relations district court.

The Virginia minimum wage does not apply to individuals participating in the U.S. Department of State’s au pair program, those employed as temporary foreign workers, or individuals employed by amusement or recreational establishments, organized camps, or religious or nonprofit educational conference centers.

*In 2024, the General Assembly would have to re-enact the increases to $13.50 and $15.00 per hour for the years 2025 and 2026.

Employers must be aware of the expansion of these laws and how the laws affect their business.

Interested in other current employment trends? Click the link to view the recent blog: Labor Law Updates for March 2021 or check back for more on human resources, payroll, insurance, and benefits.

This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.