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Illinois’ Lame Duck Session Produces Equity-Minded Legislation that Impacts Illinois Retailers

Illinois held its lame duck session in early January. During the session, the Illinois Legislative Black Caucus (ILBC) introduced a package of bills that represented the four pillars of their platform to address racial inequality including:

  1. Criminal justice reform, violence reduction and police accountability;
  2. Education and workforce development;
  3. Economic access, equity and opportunity; and
  4. Health care and human services.

The third pillar included language that impacted Illinois employers including, retailers. The ILBC initially filed an omnibus bill on Economic Access, Equity and Opportunity bill that included, employee criminal history provisions, procurement provisions, cannabis equity commission, disparity studies, lead in water service lines, environmental justice permits, equal pay certificate, etc. In order to make it easier to pass and to divide the opposition to the subject matter of the omnibus bill, the bill was divided among four separate bills.

While the ILBC’s whole agenda did not pass during lame duck, the criminal history provisions and the equal pay provisions did pass during lame duck in SB 1480.

Employee Criminal History

SB 1480 Floor Amendment 2 makes it a Human Rights Violation for an employer to use a person’s criminal history to deny someone a job, promotion, or any other employment benefits or take any other adverse action unless there is a (1) “substantial relationship” between the conviction and the job; or (2) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

If an employer uses, in or whole or in part, an individual’s criminal history, the employer must proceed through the following steps:

  1. Mitigating Factors. The employer shall consider the following factors: (1) the length of time since the conviction; (2) the number of convictions that appear on the 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 employee at the time of the conviction; and (6) evidence of rehabilitation efforts.
  2. Preliminary Decision and Employee Notification. The employer shall contain a (1) notice of the disqualifying conviction; (2) copy of the conviction report; and (3) an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before the decision becomes final.
  3. Response Period. The employer shall give the employee 5 business days to respond to the notification.
  4. Final Decision. If an employer makes a final decision to disqualify or take an adverse action solely or in part because of the employee’s conviction record, the employer shall notify the employee in writing of the following: (1) notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification; (2) any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and (3) the right to file a charge with the Department.

Equal Pay Certificate

SB 1480 Floor Amendment 2 and 3 also requires a business with 100 or more employees to obtain an equal pay certification. In order to obtain equal pay certificate an employer must provide the Director of the Illinois Human Rights Commission the following information:

  1. A copy of the business’s most recently filed Employer Information Report EEO-1--if currently required.
  2. A list of all employees during the past calendar year, separated by gender and the race and ethnicity categories as reported in the business’s most recently filed Employer Information Report EEO-1
  3. A report the total wages paid to each employee during the past calendar year, rounded to the nearest hundred dollar.
  4. That the business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Illinois Human Rights Act, the Equal Wage Act, and the Equal Pay Act of 2003;
  5. That the average compensation for its female and minority employees is not consistently below the average compensation, as determined by rule by the Department of Labor, for its male and non-minority employees within each of the major job categories.
  6. That the business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  7. That wage and benefit disparities are corrected when identified to ensure compliance with the Acts cited in #1.
  8. How often wages and benefits are evaluated to ensure compliance with the Acts cited in #1.

The equal pay compliance statement shall also indicate whether the business, in setting compensation and benefits, utilizes:

  1. A market pricing approach;
  2. State prevailing wage or union contract requirements;
  3. A performance pay system;
  4. An internal analysis; or
  5. An alternative approach to determine what level of wages and benefits to pay its employees. If the business uses an alternative approach, the business must provide a description of its approach.

The aforementioned information is required for each county the business is located.

A business must obtain an equal pay registration certificate within 3 or the effective date of this Act or within years of commencing business operations and must recertify every 2 years thereafter.

Penalties

  1. A business is liable for a penalty of 1% of the business’ gross profits if it violates the Act.
  2. A business with a state contract may have its contract revoked if it does not obtain a certification or the certification is revoked.

The bill passed the House with a vote of 70-43-5 and the Senate on a concurrence vote of 31-15.

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