2018 Employment Law Update

September 2018

Employment Law Legislative Update

Illinois Governor Bruce Rauner recently signed off on two new legislative amendments of which employers in Illinois should be aware. The first is an amendment to the Illinois Wage Payment and Collection Act, 820 ILCS 260/10, which requires employers to reimburse employees for all necessary expenses incurred which are directly related to services performed for the employer. The second is an amendment to the Nursing Mothers in the Workplace Act, 820 ILCS 115/9.5, under which Illinois employers will now be required to provide nursing mothers with paid breaks to nurse or express breastmilk. These important amendments, and their impact on Illinois employers, are discussed below.

Illinois Wage Payment and Collection Act

The recent amendment to the Illinois Wage Payment and Collection Act, which becomes effective on January 1, 2019, will require Illinois 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." Under the new law, "necessary expenditures" means "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." The employee has 30 days to submit a request for reimbursement with supporting documentation. While most employers reimburse employees for necessary business expenses, this new statute could capture expenses incurred by employees not contemplated by employers such as cell phone data charges for work-related calls and expenses incurred by remote employees for home internet access and related equipment.

Fortunately, the new statute gives Illinois employers the ability set clear guidelines for expense reimbursement. Employees are not entitled to expense reimbursement if the employer has an established written expense reimbursement policy and the employee failed to comply with the written policy. Further, employers are not liable for expense reimbursement unless the employer authorized or required the employee to incur the necessary expenditure. Employers should adopt written expense reimbursement policies, or review existing policies, to ensure clear procedures and guidelines are in place prior to the effective date of this statute on January 1, 2019.

Nursing Mothers in the Workplace Act

The recent amendment to the Nursing Mothers in the Workplace Act, which became effective on August 21, 2018, now requires Illinois employers to provide nursing mothers with paid breaks to breastfeed or express milk. Previously, the statute required employers to provide reasonable unpaid break time. The amendment also requires breaks "each time the employee has the need to express milk for one year after the child's birth." While break time "may" run concurrently with any break time already provided to the employee, the employer may not reduce an employee's compensation for time used for the purpose of expressing milk or nursing a baby. Finally, the only valid basis for not providing reasonable break time needed by the employee would be under circumstances which would create an undue hardship for the employer as defined under the Illinois Human Rights Act, a very onerous standard. Previously, the statute only required the employer to demonstrate a break would "unduly disrupt the employer's operation."

As amended, employers can still require employees to use regular unpaid break time (which the employer grants generally to employees) concurrently for breastfeeding or expressing milk. However, for the additional reasonable break periods, the employee must be paid. While these additional breaks must be paid, the new legislation provides a clear limit on the length of time such breaks must be provided – one year from the child's birth. Employers should review their break policies for nursing mothers to ensure compliance with this new law.