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2018 recap and 2019 forecast for Missouri and Illinois employment law
By Katherine Fechte, Lauren Daming, Lauren Harris on January 18, 2019 at 9:56 AM

Missouri & Illinois state capitals, side by side with the words "New laws Missouri and Illinois employers should know" overlayedEmployers in Missouri and Illinois saw the passage of several new employment-related laws in 2018. Below is a look at some legislative highlights of 2018 and how they might affect your business in 2019.

Missouri update and preview

Minimum wage: Thanks to the success of Proposition B, which Missouri voters approved in the Nov. 6, 2018 election by a 2-to-1 margin, Missouri’s state minimum wage rises to $8.60 per hour on Jan. 1, 2019. The minimum wage will increase by 85 cents each year through 2023, when it reaches $12 per hour. Beginning in 2024, the minimum wage will increase each year based on the cost of living. Although employers are free to pay wages in excess of the state minimum wage, local governments may not set municipal minimum wages higher than the state’s as the Missouri legislature pre-empted such action in 2017.

Medical marijuana: Missouri has joined the ranks of several states permitting individuals to obtain prescriptions for the use of medical marijuana. According to the Missouri Department of Health and Senior Services, individuals will likely not be able to fill their medical marijuana prescriptions until January 2020. The department will begin accepting applications for cultivation, manufacturing and dispensing facilities on Aug. 3, 2019.

Amendment 2 does not permit a person to bring a claim against an employer or prospective employer for wrongful discharge, discrimination or any similar cause of action or remedy, based on the prohibition of being under the influence of marijuana while at work or disciplining the individual for working or attempting to work while under the influence. Practically speaking, once medical marijuana becomes available in Missouri, employers will need to evaluate how to respond to a positive drug test for an individual with a valid prescription and whether accommodations should be made under state and federal disability discrimination laws based on the essential functions of the position the employee is performing. Missouri has not yet issued regulations to address these issues, but we expect to learn more about the reaches of this law and how courts will interpret it as the year progresses.

It is important to note that Missouri’s new medical marijuana law does not supersede any requirements for federal contractors under the federal Drug Free Workplace Act.

Illinois update and preview

Reimbursing expenses: Effective Jan. 1, 2019, the Illinois Wage Payment and Collection Act (IWPCA) requires employers to reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” 820 ILCS 115/9.5(a). “Necessary expenditures” are defined as “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” There is some debate about the reach of this definition, but employee advocates have argued that it includes all types of business-related expenses, including work-related mileage; personal cell phones, internet, and/or office equipment for employees who work from home or out of the office; and costs associated with required all work-related travel, including conferences and training. Interestingly, the law does provide several carve-outs to reimbursable expenses, including any losses due to an employee’s own negligence, loss due to normal wear and tear, and theft, unless the theft was attributable to the employer’s negligence.

The statute does provide that employers can maintain their own written reimbursement policies and employees who do not comply with such policies are not entitled to reimbursement. Violation of the statute can lead companies to be liable for damages equal to the reimbursement amount and a 2 percent penalty for each month the expenses are not paid, as well as attorneys’ fees incurred by employees.

To manage these new requirements and to ensure compliance, Illinois employers should review and revise existing reimbursement policies to provide that expenses that were not previously covered are now reclassified if they are incurred for the primary benefit of the employer. Similarly, policies should set out specific submission deadlines and authorization requirements, whether expenses require supporting documentation, and the process for seeking reimbursement.

Paid nursing breaks: Effective Aug. 21, 2018, the Illinois Nursing Mothers in the Workplace Act requires employers to provide paid break time to mothers who need to express milk while at work. Notably, the law previously only required reasonable unpaid time for such breaks. The paid break time may run concurrently with any break time already scheduled, but the employer cannot reduce an employee’s compensation for time used for the purpose of expressing milk or nursing. Practically speaking, if a nursing mother needs more time throughout the day to express milk than what is already provided for in the schedule (including an unpaid meal break time and paid breaks), she should be provided with the additional break time and paid for it, as long as it is reasonable and does not cause an undue hardship as defined by the Illinois Human Rights Act (IHRA). The amendment provides that this accommodation is limited to one year after the child’s birth.

In working with a new mother to develop a workable plan, an employer should not be afraid to discuss what break time the employee will need, as well as production needs so that both parties understand the arrangements and needs going forward. Illinois employers should review current nursing/lactation break policies and practices to ensure compliance with the amendment.

Equal pay protections for African-Americans: The Illinois Equal Pay Act was amended to include protections for African-American employees, similar to the protections already provided to employees based on sex. Specifically, the statute provides that “No employer may discriminate between employees by paying wages to an African-American employee at a rate less than the rate at which the employer pays wages to another employee who is not African-American 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” (820 ILCS 112/10(a)).

There are a few exceptions, including when payment is made under:

  1. a seniority system;
  2. a merit system;
  3. a system that measures earnings by quantity or quality of production; or
  4. a differential based on any other factor other than race or a factor that would constitute unlawful discrimination under the Illinois Human Rights Act.

Accordingly, it is all the more important for employers to properly document expectations, performance and discipline to defend against allegations of unequal pay.

Illinois Human Rights Act Changes: The IHRA’s notice requirement has been updated to require a new notice to be included in Illinois employers’ handbooks, as well as posted onsite. The poster became available in September 2018 and can be found here. The poster explains that employees have the right to be free from job discrimination and sexual harassment and provides information on how to report discrimination, including contact information for the Illinois Department of Human Rights (IDHR) and the Illinois Sexual Harassment and Discrimination Helpline. The posting requirement is applicable to all employers in Illinois with one or more employees. Accordingly, employers should ensure that the proper notice is posted and included in their handbooks and policies.

Additionally, the IHRA now provides that individuals may opt out of the IDHR’s administrative investigation process and proceed directly to Illinois state court. The individual must still file a charge of discrimination with the IDHR but now may send notice of his or her intent to opt out of the IDHR investigation. Once the request is granted, the individual has 90 days to file suit in state court. The new language and procedural steps are incorporated into 775 ILCS 5/7A-102(B).

Finally, the IHRA also now provides an aggrieved party with 300 days to file a Charge of Discrimination from the date of the alleged discrimination with the IDHR. The act was amended to fall in line with the 300-day filing deadline for charges filed with the Equal Employment Opportunity Commission. The new language and procedural steps are incorporated into 775 ILCS 5/7A-102(A).

Illinois Service Member Employment and Reemployment Rights Act (ISERRA): Effective Jan. 1, 2019, ISERRA consolidates most existing Illinois employment statutes providing protections to service members and specifically repeals the Military Leave Absence Act, Public Employee Armed Services Rights Act, Municipal Employees Military Active Duty Act, and Local Government Employees Benefits Continuation Act. ISERRA incorporates the protections and benefits of the federal Uniform Services Employment and Reemployment Act (USERRA) and, thus, will allow Illinois courts to refer and rely on federal precedent when interpreting ISERRA. While there are several changes, the most prominent changes to existing law are to the definition of “military service,” leave protections and performance review treatment on reinstatement.

ISERRA expands USERRA’s definition of “military service” to include:

  1. service covered by the Illinois State Guard Act;
  2. a period during which service members are absent from employment for medical or dental treatment for a condition, illness or injury sustained or aggravated during a period of active service; and
  3. service in a federally recognized auxiliary of the U.S. Armed Forces when performing official duties in support of military or civilian authorities as a result of an emergency.

Under ISERRA, service members are not required to get permission for military leave but simply required to give employers advance notice of pending qualified service. Additionally, on reinstatement, service members must be credited with the average of performance ratings or evaluations received for the three years preceding the military leave, except when the average is less than the rating on the evaluation just prior to service.

ISERRA also creates an “ISERRA Advocate” in the Illinois Attorney General’s Office that will assist service members and employers with questions regarding the benefits of the statute. The statute contains a posting requirement, which can be downloaded from the Illinois Attorney General’s website. The Illinois legislature also gave ISERRA some teeth by providing a private cause of action to individual employee claimants and enforcement authority to the Illinois Attorney General. The law negates any statute of limitations to bring suit and authorizes the recovery of actual damages, attorneys’ fees and up to $50,000 in punitive damages.

Illinois employers should review existing policies and practices to ensure compliance with the new law and post the required notice of rights.

If you have questions about any of these Missouri and Illinois updates, or if you would like to discuss how your business may be affected, please contact any of the attorneys in our Employment & Labor Group. To read about national updates in 2018 and 2019 that may be relevant to your business, check out this post.

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