Employers should be aware of several Public Acts regarding discrimination, retaliation, personnel records, pay stubs, privacy and E-Verification that become law starting January 1, 2025.

These Public Acts amended the Human Rights Act (775 ILCS 5/), Personnel Record Review Act (820 ILCS 40/), Whistleblower Act (740 ILCS 174/), Wage Payment and Collection Act (820 ILCS 115/), and Right to Privacy in the Workplace Act (820 ILCS 55/). Employers should also be mindful of the enactment of the Illinois Worker Freedom of Speech Act (820 ILCS 57/).

The Illinois Human Rights Act (775 ILCS 5/)

The Illinois Human Rights Act prohibits discrimination in Illinois with respect to employment, financial credit, public accommodations, housing and sexual harassment, as well as sexual harassment in education.

Public Act 103-0973

Public Act 103-0973 amended Section 7A-102 of the Human Rights Act by extending the deadline to submit an alleged civil rights violation with the Department of Human Rights from 300 calendar days to two (2) years.

Public Act 103-0785

Public Act 103-0785 amended Sections 1-102 and 1-103 of the Human Rights Act by adding reproductive health decisions as a basis for unlawful discrimination. Effective January 1, 2025, it is unlawful for employers to discriminate on the basis of reproductive health decisions.

While the law does not explicitly impose any new leave or accommodation requirements on employers, employers should be mindful of their employees’ rights to be free from discrimination on the basis of reproductive health decisions.  “Reproductive health decisions” means a person’s decisions regarding the person’s use of: contraception; fertility or sterilization care; assisted reproductive technologies; miscarriage management care; healthcare related to the continuation or termination of pregnancy; or prenatal, intranatal, or postnatal care.

Public Act 103-0797

Public Act 103-0797 amended Sections 2-101, 2-102, 2-104, and 6-101 of the Human Rights Act by adding family responsibilities as a basis for harassment. Effective January 1, 2025, it is unlawful for employers to harass employees on the basis of family responsibilities.

“Family responsibilities” means an employee’s actual or perceived provision of personal care to a family member. “Family member” includes an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. “Personal care” includes “activities to ensure that a covered family member’s basic medical, hygiene, nutritional, or safety needs are met, or to provide transportation to medical appointments for a covered family member who is unable to meet those needs himself or herself.”  “Personal care” also includes “being physically present to provide emotional support to a covered family member with a serious health condition who is receiving inpatient or home care.”

However, Public Act 103-0797 also amended the Human Rights Act to clarify that employers are still authorized to take adverse action or otherwise enforce reasonable workplace rules or policies related to leave, scheduling, productivity, attendance, absenteeism, timeliness, work performance, referrals from a labor union hiring hall, and benefits against an employee with family responsibilities as long as its policies are applied in accordance with the Human Rights Act.

Public Act 103-0804

Public Act 103-0804 amended Sections 2-101 and 2-102 of the Human Rights Act. Effective January 1, 2025, employers are prohibited from using artificial intelligence (“AI”) to discriminate in connection with employment decisions and requiring employers to notify employees when AI is being used for employment-related reasons.

“Artificial intelligence” means 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. “Artificial intelligence” includes generative artificial intelligence. “Generative artificial intelligence” means an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following:

1. Textual outputs, such as short answers, essays, poetry, or longer compositions or answers;
2. Image outputs, such as fine art, photographs, conceptual art, diagrams, and other images;
3. Multimedia outputs, such as audio or video in the form of compositions, songs, or short-form or long-form audio or video; and
4. Other content that would be otherwise produced by human means.

The Illinois Personnel Record Review Act (820 ILCS 40/)

The Illinois Personnel Record Review Act provides an employee with a right to review, copy and correct personnel records, and prescribes the gathering and use of information about the employee by an employer.

Public Act 103-0727

Public Act 103-0727 amended Sections 2, 9, 10 and 12 of the Personnel Record Review Act. Effective January 1, 2025, employees have the right to make a request in writing to inspect, copy, and receive copies of the following documents:

1. Any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, benefits, discharge, or other disciplinary action;
2. Any employment-related contracts or agreements that the employer maintains are legally binding on the employee;
3. Any employee handbooks that the employer made available to the employee or that the employee acknowledged receiving; and
4. Any written employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, discharge, or other disciplinary action.

Employers are required to comply with the employee’s request within seven (7) working days after receipt of the request; however, if the employer can reasonably show that this deadline cannot be met, the employer may have an additional seven (7) calendar days to comply with the request. If the records are maintained in a manner and fashion that is already accessible by the employee, the employer may instead provide the employee with instructions on how to access that information. Employers who do not maintain any personnel records are exempt from this requirement.

The following documents are also exempt from the employee’s right to inspection:

1. Letters of reference for that employee or external peer review documents for academic employees of institutions of higher education.
2. Any portion of a test document, except that the employee may see a cumulative total test score for either a section of or the entire test document.
3. Materials relating to the employer’s staff planning, such as matters relating to the business’ development, expansion, closing or operational goals, where the materials relate to or affect more than one employee, provided, however, that this exception does not apply if such materials are, have been or are intended to be used by the employer in determining an individual employee’s qualifications for employment, promotion, transfer, or additional compensation, or benefits, or in determining an individual employee’s discharge or discipline.
4. Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy.
5. Records relevant to any other pending claim between the employer and employee which may be discovered in a judicial proceeding.
6. Investigatory or security records maintained by an employer to investigate criminal conduct by an employee or other activity by the employee which could reasonably be expected to harm the employer’s property, operations, or business or could by the employee’s activity cause the employer financial liability, unless and until the employer takes adverse personnel action based on information in such records.
7. An employer’s trade secrets, client lists, sales projections, and financial data.

If an employer does not maintain records in one or more of the required categories requested, the employee may respond in writing notifying the employee that the employer does not maintain records in that category. However, the employer must still permit inspection, copying, and receipt of copies of any other category requested as to which the employer does maintain records.

The inspection must take place at a location reasonably near the employee’s place of employment and during normal working hours. The request may be made in writing, email, or text message. Further, the employer may charge a fee limited to the cost of duplicating the requested record but may not include the imputed costs of time spent duplicating the information, the purchase or rental of copying machines, the purchase or rental of computer equipment, the purchase, rental, or licensing of software, or any other similar expenses.

Finally, an employee may commence an action in the circuit court to enforce the provisions of the Personnel Record Review Act, including actions to compel compliance, if an employer is alleged to have violated the Personnel Record Review Act, and the Department has failed to resolve the complaint within 180 calendar days after the complaint is filed with the Department, or the Department certifies in writing that it is unlikely to be able to resolve the complaint within that 180 calendar days.

The Illinois Whistleblower Act (740 ILCS 174/)

The Whistleblower Act makes it unlawful for an employer to retaliate against an employee for disclosing an employer’s potentially unlawful activity to a government or law enforcement agency.

Public Act 103-0867

Public Act 103-0867 amended Sections 5, 15, 20, 20.1, 20.2, 25, and 30 of the Whistleblower Act. Public Act 103-0867 also added Sections 31 and 32 to the Whistleblower Act.

Public Act 103-0867 amended the Whistleblower Act by expanding the definitions of “employer” and “employee,” while clarifying the definitions of “adverse employment action,” “public body,” “retaliatory action” and “supervisor.” Effective January 1, 2025, employers are subject to greater penalties for retaliating against employees for disclosing their employer’s potentially unlawful activities pursuant to the Whistleblower Act.

The definition of “employee” was clarified to mean any individual permitted to work unless:

1. The individual has been and will continue to be free from control and direction over the performance of his or her work, both under his or her contract of service with his or her employer and in fact;
2. The individual performs work which is either outside the usual course of business or is performed outside all of the places of business of the employer unless the employer is in the business of contracting with parties for the placement of employees; and
3. The individual is in an independently established trade, occupation, profession, or business.

The definition of “employer” was expanded to include any person acting within the scope of his or her authority, express or implied, on behalf of those entities in dealing with its employees. “Supervisor” means any individual who has the authority to direct and control the work performance of the affected employee; or any individual who has managerial authority to take corrective action regarding a violation of the law, rule, or regulation disclosed by an employee in accordance with Section 15. “Public body” means any of the following: the State; any officer, board, political subdivision, or commission of the State; any institution supported in whole or in part by public funds; units of local government; and school districts.

An “Adverse employment action” is an action that a reasonable employee would find materially adverse. An action is materially adverse for purposes of the Whistleblower Act when it could dissuade a reasonable worker from disclosing or threatening to disclose an activity, policy or practice of the employer that the employee has a good faith belief that such activity, policy or practice violates a state or federal law, rule or regulation or poses a substantial and specific danger to public health or safety.

“Retaliatory action” means an adverse employment action or the threat of an adverse employment action by an employer or his or her agent to penalize or any non-employment action that would dissuade a reasonable worker from disclosing information under this Act. “Retaliatory action” includes, but is not limited to:

1. Taking, or threatening to take, any action that would intentionally interfere with an employee’s ability to obtain future employment or post-termination retaliation to intentionally interfere with a former employee’s employment;
2. Taking, or threatening to take, any action prohibited by subsection (G) of Section 2-102 of the Illinois Human Rights Act; or
3. Contacting, or threatening to contact, United States immigration authorities, or otherwise reporting, or threatening to report, an employee’s suspected or actual citizenship or immigration status or the suspected or actual citizenship or immigration status of an employee’s family or household member to a federal, State, or local agency.

“Retaliatory action” does not include:

1. Conduct undertaken at the express and specific direction or request of the federal government;
2. Truthful, performance-related information about an employee or former employee provided in good faith to a prospective employer at the request of the prospective employer; or
3. Conduct undertaken if specifically required by state or federal law.

If an employer takes retaliatory action against an employee for disclosing the employer’s potentially unlawful activity, the employee may now bring a civil action against the employer for all relief necessary to make the employee whole, including but not limited to the following, as appropriate:

1. Permanent or preliminary injunctive relief;
2. Reinstatement with the same seniority status that the employee would have had, but for the violation;
3. Back pay, with interest of 9% per annum up to 90 calendar days from the date the complaint is filed and front pay;
4. Liquidated damages of up to $10,000;
5. Compensation for any costs incurred damages sustained as a result of the violation, including litigation costs, expert witness fees, and reasonable attorney’s fees; and
6. Additionally, the court shall award a civil penalty of $10,000 payable to the employee.

Finally, Public Act 103-0867 granted the Attorney General the authority to initiate or intervene in a civil action whenever the Attorney General has reasonable cause to believe that any person or entity has engaged in a practice prohibited by the Whistleblower Act.

The Illinois Wage Payment and Collection Act (820 ILCS 115/)

The Illinois Wage Payment and Collection Act establishes when, where and how often wages must be paid and prohibits deductions from wages or final compensation without the employee’s consent.

Public Act 103-0953

Public Act 103-0953 amended Sections 2, 10, and 14 of the Illinois Wage Payment and Collection Act by requiring employers to maintain copies of an employee’s pay stub for at least three years after the date of payment, regardless of whether the employee’s employment ends during this period. Effective January 1, 2025, employers must provide pay stubs to current and former employees upon request within 21 calendar days.

“Pay stub” means an itemized statement or statements reflecting an employee’s hours worked, rate of pay, overtime pay and overtime hours worked, gross wages earned, deductions made from the employee’s wages, and the total of wages and deductions year to date.

The request must be made to a person responsible for maintaining the employer’s payroll, including the employer’s human resources department or payroll department, the employee’s supervisor or department manager, or an individual designated in the employer’s written policy. The employer must provide the employee or former employee with a copy of the pay stubs within 21 calendar days of the employee’s request. The pay stubs may be delivered in either a physical or electronic format, as chosen by the former employee. The employer may require the employee submit the request in writing and is not required to grant an employee’s request for a copy of pay stubs more than twice in a 12-month period.

The Illinois Worker Freedom of Speech Act (820 ILCS 57/)

Public Act 103-0722 created the Illinois Worker Freedom of Speech Act, effective January 1, 2025. The Illinois Workplace Freedom of Speech Act prohibits employers or an employer’s agent, representative, or designee from discharging, disciplining, or penalizing, or threatening to discharge, discipline, or penalize, or take any adverse employment action against an employee for declining to participate in certain employer-sponsored meetings on religious or political matters.

Public Act 103-0722

Effective January 1, 2025, employers must post and keep posted a notice of employee rights under the Illinois Worker Freedom of Speech Act where employee notices are customarily placed within 30 days after the effective date of January 1, 2025.

“Political matters” means matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization. “Religious matters” means matters relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association.

Specifically, the employer or employer’s agent, representative, or designee is prohibited from taking any adverse employment action against an employee:

1. Because the employee declines to attend or participate in an employer sponsored meeting or declines to receive or listen to communications from the employer or the agent, representative, or designee of the employer if the meeting or communication is to communicate the opinion of the employer about religious matters or political matters;
2. As a means of inducing an employee to attend or participate in meetings or receive or listen to communications about religious matters or political matters; or
3. Because the employee, or a person acting on behalf of the employee, makes a good faith report, orally or in writing, of a violation or a suspected violation of the Workplace Freedom of Speech Act.

Aggrieved employees may bring a civil action to enforce any provision of the Illinois Workplace Freedom of Speech Act within one (1) year after the date of the alleged violation. In addition, employees may also file a claim with the Illinois Department of Human Rights within three (3) years after the alleged conduct. The employer will be assessed a civil penalty of $1,000 for each violation, payable to the Department. Each employee who is subject to a violation will constitute a separate violation.

Illinois Right to Privacy in the Workplace Act (820 ILCS 55/)

The Illinois Right to Privacy in the Workplace Act protects employees from employer actions that infringe on their personal privacy outside of work hours and also includes specific regulations for employers using the Federal E-Verify system.

Public Act 103-0879

Public Act 103-0879 amended Sections 12 and 15 of the Illinois Right to Privacy in the Workplace Act and added Section 13. Effective January 1, 2025, Public Act 103-0879 amended the Right to Privacy in the Workplace Act with respect to discrepancies in employment verification information. Further, employers may not impose work authorization verification or re-verification requirements greater than those required by federal law.

If an employer is required to participate in the E-Verify program or a similar Electronic Employment Verification System and receives notification from the Social Security Administration of a discrepancy between an employee’s name or social security number and the Social Security Administration’s records, or if the employer confirms there is a discrepancy, the employer must provide the employee with the following documents:

1. The specific document or documents, if made available to the employer, that the employer deems to be deficient and the reason why the document or documents are deficient. Upon request by the employee or the employee’s authorized representative, the employer shall give to the employee the original document forming the basis for the employer’s contention of deficiency within seven (7) business days.
2. Instructions on how the employee can correct the alleged deficient documents if required to do so by law.
3. An explanation of the employee’s right to have representation present during related meetings, discussions, or proceedings with the employer, if allowed by a memorandum of understanding concerning the Federal E-Verify system.
4. An explanation of any other rights that the employee may have in connection with the employer’s contention.

“Employee’s authorized representative” means an exclusive collective bargaining representative. “Inspecting entity” means the U.S. Immigration and Customs Enforcement, United States Customs and Border Protection, or any other federal entity enforcing civil immigration violations of an employer’s I-9 Employment Eligibility Verification forms.

When an employer receives notification from any federal or state agency, including, but not limited to, the Social Security Administration or the Internal Revenue Service, of a discrepancy as it relates to work authorization, the following rights and protections are granted to the employee:

1. The employer must not take any adverse action against the employee, including re-verification, based on the receipt of the notification.
2. The employer must provide a notice to the employee and, if allowed by a memorandum of understanding concerning the Federal E-Verify system, to the employee’s authorized representative, if any, as soon as practicable, but not more than 5 business days after the date of receipt of the notification, unless a shorter timeline is provided for under federal law or a collective bargaining agreement. The notice to the employee shall include, but not be limited to:

    

   (i) An explanation that the Federal or State agency has notified the employer that the employee’s work authorization documents presented by the employee do not appear to be valid or reasonably relate to the employee; and

   (ii) The time period the employee has to contest the Federal or State agency’s determination. The employer shall notify the employee in person and deliver the notification by hand, if possible. If hand delivery is not possible, then the employer shall notify the employee by mail and email, if the email address of the employee is known, and shall notify the employee’s authorized representative. Upon request by the employee or the employee’s authorized representative, the employer shall give to the employee the original notice from the Federal or State agency, including, but not limited to, the Social Security Administration or the Internal Revenue Service, within 7 business days. This original notice shall be redacted in compliance with State and Federal privacy laws and shall relate only to the employee receiving the notification.

3. The employee may have a representative of the employee’s choosing in any meetings, discussions, or proceedings with the employer.

Employers must provide a notice to each current employee and their authorized representatives, if any, by posting in English and in any language commonly used in the workplace, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by the inspecting entity within 72 hours after receiving notice of the inspection. The posted notice must contain the following information:

1. The name of the entity conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records;
2. The date that the employer received notice of the inspection;
3. The nature of the inspection to the extent known by the employer; and
4. A copy of the notice received by the employer.

The original notice must be redacted in compliance with State and Federal privacy laws and relate only to the employee receiving the notification.

On or before six (6) months after the effective date of this amendatory Act the Department of Labor will develop a template posting that employers may use to comply with the notice requirements to inform employees of a notice of inspection to be conducted of I-9 Employment Eligibility Verification forms or other employment records conducted by the inspecting entity. The template will be available on its website.

Authored by:

not-pictured: Michael Parille