Other than a new state minimum wage ($11.15 per hour), 2022 is starting off quietly in Missouri. However, last year brought two major developments affecting employers that are summarized below. The COVID-19 Liability Shield is exactly as it sounds, providing protections for employers against suits by individuals who claim they were exposed to COVID-19. Similarly, the Domestic Violence Leave Law provides job-protected leave for individuals who need to address issues related to domestic violence.
COVID-19 Liability Shield
This statute, Mo. Rev. Stat. 537.1005, provides protections to Missouri businesses against civil actions related to COVID-19 exposures. Businesses are not liable in any COVID-19 exposure action unless the plaintiff proves by clear and convincing evidence that 1) the business engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19; and 2) the actual exposure to COVID-19 caused the plaintiff’s injury. Companies also benefit from a rebuttable presumption that the plaintiff assumed the risk of exposure if the business posts a warning. The exact language of the warning sign is provided in the language of the statute here.
The statute does not apply to actions by employees for work-related exposures since workers’ compensation is the sole remedy for those claims. However, any company that has clients, customers, or other visitors on site may benefit from the protections of the statute. The statute also excludes religious organizations unless the plaintiff can prove intentional misconduct.
Domestic Violence Leave Law
The Missouri legislature passed a new leave entitlement law, effective August 28, 2021, that requires employers with 20 or more employees to offer unpaid leave to an employee who needs to address legal and personal matters related to domestic violence. Employees may receive one or two weeks of leave per year (depending on how large the employer is) if they or their family member have been a victim of domestic or sexual violence and the employee needs time away from work as a result. Qualifying reasons for leave include seeking medical attention, obtaining victim services or counseling, participating in safety planning, or seeking legal assistance. Employers were required to provide employees with information regarding the statute by October 27, 2021.
As with most years, the Illinois legislature was active in 2021 with amendments to a number of statutes that impact employers. Below is a summary of the amendments to the Artificial Intelligence Video Interview Act, the Illinois Equal Pay Act, the Illinois Human Rights Act, the Illinois Victims’ Economic Security and Safety Act, the Personal Record Review Act, and the Illinois Freedom to Work Act. Check out our blog for updates regarding other issues that were addressed on the state and local levels last year.
Amendments to the Artificial Intelligence Video Interview Act
The Artificial Intelligence Video Interview Act was amended, effective January 1, 2022, to require employers who solely rely on artificial intelligence analysis of video interviews to determine which applicants receive in-person interviews to annually report certain data related to the race and ethnicity of applicants. These employers must report the race and ethnicity of 1) applicants who are and are not offered in-person interviews and 2) applicants who are ultimately hired. The data will be analyzed by the Illinois Department of Commerce and Economic Opportunity to determine whether the data reveals a racial bias in the use of artificial intelligence.
Amendments to the Illinois Equal Pay Act
The Illinois Equal Pay Act was amended to provide protections for employers who seek to verify certain compensation history information during the hiring process. The Illinois Equal Pay Act generally prohibits employers from seeking information about a job applicant’s wage or salary history from the applicant’s current or former employer. This prohibition is broad enough to cover inquiries about “benefits or other compensation.” Nonetheless, the Act contains language explicitly protecting an employer or employment agency’s ability to engage in “discussions with an applicant for employment about the applicant’s expectations with respect to wage or salary, benefits, and other compensation.”
Illinois HB 1207 takes effect January 1, 2022, and amends the Act to give employers the ability to verify applicants’ claims that they would forfeit unvested equity or deferred compensation by leaving a current job. The provision comes into play only if, during discussions about compensation expectations, the applicant “voluntarily and without prompting” discloses that they stand to forfeit unvested equity or deferred compensation by resigning from their current employer. In that circumstance, an employer may ask the applicant to request a verification letter from either the applicant’s current employer or the administrator of any relevant fund. The letter need only state the aggregate amount of all such unvested equity or deferred compensation, and the applicant may choose whether to request the letter from their employer or the plan administrator.
Amendments to the Illinois Human Rights Act
The Illinois Human Rights Act (IHRA) was amended by Illinois HB 1838 to prohibit employers from discriminating against individuals because of their association with others with disabilities.
The IHRA, which applies to all employers with at least one employee, broadly prohibits discrimination against persons with disabilities in employment. Previously, while the IHRA explicitly prohibited discrimination based on association with disabled persons in real estate, there was no explicit ban on associational disability discrimination in the employment context. The federal Americans with Disabilities Act (ADA), by contrast, has long prohibited employers from discriminating against individuals based on their association with people with disabilities.
Illinois HB 1838 takes effect January 1, 2022, and brings the IHRA in line with the ADA by banning discrimination in employment against individuals due to their association with a person with a disability.
Amendments to the Illinois Victims’ Economic Security and Safety Act
The Illinois legislature amended the Victims’ Economic Security and Safety Act (VESSA) with Illinois HB 3582, which took effect January 1, 2022. HB 3582 expands the types of crimes for which victims are entitled to take VESSA leave beyond those of sexual and domestic violence. Specifically, employees who are victims of (or whose family or household members are victims of) certain violent crimes, including but not limited to murder, sexual solicitation and abuse, harassing and obscene communications, terrorism and armed violence, are now entitled to take VESSA leave.
Since 2003, VESSA has required employers to grant unpaid leave to employees who are victims of domestic or sexual violence or who have family or household members who are victims of domestic or sexual violence. Employees taking VESSA leave could do so in order to, among other things, seek medical attention, obtain victim services or counseling, participate in safety planning, or obtain legal assistance. The amount of leave employees are entitled to depends on the size of the employer. Employers with one to 14 employees must grant four weeks of unpaid leave during any 12-month period; employers with 15 to 49 employees must grant eight weeks of unpaid leave during any 12-month period; and employers with 50 or more employees must grant 12 weeks of unpaid leave during any 12-month period.
Amendments to Personnel Record Review Act
The Illinois legislature amended the Personnel Record Review Act (PRRA) to provide aggrieved employees or former employees the right to file a complaint with the Illinois Department of Labor (IDOL) or bring a lawsuit for violations of the Act.
The PRRA requires employers to give written notice to an employee or former employee any time the employer discloses a disciplinary report to a third party, with limited exceptions. Previously, the PRRA provided no explicit remedy for employees whose disciplinary reports were disclosed without notice in violation of the PRRA.
SB 2486 took effect January 1, 2022, and amends the PRRA to give aggrieved employees the explicit right to file a complaint with the IDOL or a lawsuit for disclosure of a disciplinary report without the required notice. Any complaint or legal action must be filed within three years after the date of disclosure.
Amendments to the Illinois Freedom to Work Act
The Illinois legislature amended the Illinois Freedom to Work Act with SB 672, which took effect January 1, 2022 and limits the circumstances in which covenants not to compete and covenants not to solicit are valid.
Since 2017, the Illinois Freedom to Work Act has placed limitations on employers’ ability to enter into covenants not to compete and covenants not to solicit. The 2021 amendments represent a broad overhaul of the Act. Some of the most noteworthy changes are outlined below. For a more detailed summary, see here.
- Covenants are valid only if the employee receives “adequate consideration,” which the bill defines as “(1) the employee worked for the employer for at least 2 years after the employee signed an agreement containing a covenant not to compete or a covenant not to solicit or (2) the employer otherwise provided consideration adequate to support an agreement to not compete or to not solicit, which consideration can consist of a period of employment plus additional professional or financial benefits or merely professional or financial benefits adequate by themselves.”
- A covenant not to compete is not valid unless the employee earns at least $75,000 per year at an annualized rate. This threshold amount is set to increase by $5,000 every five years until 2037.
- A covenant not to solicit is not valid unless the employee earns at least $45,000 per year at an annualized rate. This threshold amount is set to increase by $2,500 every five years until 2037.
- Employers may not enter into a covenant not to compete or a covenant not to solicit when laying off or furloughing an employee due to the COVID-19 pandemic or under similar circumstances.
- Covenants not to compete and covenants not to solicit are deemed void and illegal with respect to certain public sector union employees and non-management construction employees.
- The bill prescribes a host of enforcement mechanisms, including the ability of prevailing employees to recover attorney’s fees, enforcement by the attorney general, and judicial reformation of offending covenants.
If you have questions or would like to discuss any of the issues outlined here, please contact an attorney in Greensfelder’s Employment & Labor Practice Group.