101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4083

 

Introduced 1/16/2020, by Rep. Allen Skillicorn

 

SYNOPSIS AS INTRODUCED:
 
775 ILCS 5/2-102  from Ch. 68, par. 2-102
820 ILCS 55/12

    Amends the Right to Privacy in the Workplace Act. Removes language making it a violation of the Act to: (i) use the Employment Eligibility Verification System to verify the employment eligibility of job applicants prior to hiring or to otherwise use the Employment Eligibility Verification System to screen individuals prior to hiring and prior to the completion of a Form I-9; or (ii) terminate an employee or take any other adverse employment action against an individual prior to receiving a final nonconfirmation notice from the Social Security Administration or the Department of Homeland Security. Removes language permitting any claim that an employer refused to hire or acted with respect to hiring, renewal of employment, or selection for training or apprenticeship without following the procedures of the Employment Eligibility Verification System, including the Basic Pilot and E-Verify programs, to be brought under the Illinois Human Rights Act. Makes conforming changes to the Illinois Human Rights Act.


LRB101 16058 KTG 65420 b

 

 

A BILL FOR

 

HB4083LRB101 16058 KTG 65420 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. The Illinois Human Rights Act is amended by
5changing Section 2-102 as follows:
 
6    (775 ILCS 5/2-102)  (from Ch. 68, par. 2-102)
7    Sec. 2-102. Civil rights violations - employment. It is a
8civil rights violation:
9        (A) Employers. For any employer to refuse to hire, to
10    segregate, to engage in harassment as defined in subsection
11    (E-1) of Section 2-101, or to act with respect to
12    recruitment, hiring, promotion, renewal of employment,
13    selection for training or apprenticeship, discharge,
14    discipline, tenure or terms, privileges or conditions of
15    employment on the basis of unlawful discrimination or
16    citizenship status. An employer is responsible for
17    harassment by the employer's nonmanagerial and
18    nonsupervisory employees only if the employer becomes
19    aware of the conduct and fails to take reasonable
20    corrective measures.
21        (A-5) Language. For an employer to impose a restriction
22    that has the effect of prohibiting a language from being
23    spoken by an employee in communications that are unrelated

 

 

HB4083- 2 -LRB101 16058 KTG 65420 b

1    to the employee's duties.
2        For the purposes of this subdivision (A-5), "language"
3    means a person's native tongue, such as Polish, Spanish, or
4    Chinese. "Language" does not include such things as slang,
5    jargon, profanity, or vulgarity.
6        (A-10) Harassment of nonemployees. For any employer,
7    employment agency, or labor organization to engage in
8    harassment of nonemployees in the workplace. An employer is
9    responsible for harassment of nonemployees by the
10    employer's nonmanagerial and nonsupervisory employees only
11    if the employer becomes aware of the conduct and fails to
12    take reasonable corrective measures. For the purposes of
13    this subdivision (A-10), "nonemployee" means a person who
14    is not otherwise an employee of the employer and is
15    directly performing services for the employer pursuant to a
16    contract with that employer. "Nonemployee" includes
17    contractors and consultants. This subdivision applies to
18    harassment occurring on or after the effective date of this
19    amendatory Act of the 101st General Assembly.
20        (B) Employment agency. For any employment agency to
21    fail or refuse to classify properly, accept applications
22    and register for employment referral or apprenticeship
23    referral, refer for employment, or refer for
24    apprenticeship on the basis of unlawful discrimination or
25    citizenship status or to accept from any person any job
26    order, requisition or request for referral of applicants

 

 

HB4083- 3 -LRB101 16058 KTG 65420 b

1    for employment or apprenticeship which makes or has the
2    effect of making unlawful discrimination or discrimination
3    on the basis of citizenship status a condition of referral.
4        (C) Labor organization. For any labor organization to
5    limit, segregate or classify its membership, or to limit
6    employment opportunities, selection and training for
7    apprenticeship in any trade or craft, or otherwise to take,
8    or fail to take, any action which affects adversely any
9    person's status as an employee or as an applicant for
10    employment or as an apprentice, or as an applicant for
11    apprenticeships, or wages, tenure, hours of employment or
12    apprenticeship conditions on the basis of unlawful
13    discrimination or citizenship status.
14        (D) Sexual harassment. For any employer, employee,
15    agent of any employer, employment agency or labor
16    organization to engage in sexual harassment; provided,
17    that an employer shall be responsible for sexual harassment
18    of the employer's employees by nonemployees or
19    nonmanagerial and nonsupervisory employees only if the
20    employer becomes aware of the conduct and fails to take
21    reasonable corrective measures.
22        (D-5) Sexual harassment of nonemployees. For any
23    employer, employee, agent of any employer, employment
24    agency, or labor organization to engage in sexual
25    harassment of nonemployees in the workplace. An employer is
26    responsible for sexual harassment of nonemployees by the

 

 

HB4083- 4 -LRB101 16058 KTG 65420 b

1    employer's nonmanagerial and nonsupervisory employees only
2    if the employer becomes aware of the conduct and fails to
3    take reasonable corrective measures. For the purposes of
4    this subdivision (D-5), "nonemployee" means a person who is
5    not otherwise an employee of the employer and is directly
6    performing services for the employer pursuant to a contract
7    with that employer. "Nonemployee" includes contractors and
8    consultants. This subdivision applies to sexual harassment
9    occurring on or after the effective date of this amendatory
10    Act of the 101st General Assembly.
11        (E) Public employers. For any public employer to refuse
12    to permit a public employee under its jurisdiction who
13    takes time off from work in order to practice his or her
14    religious beliefs to engage in work, during hours other
15    than such employee's regular working hours, consistent
16    with the operational needs of the employer and in order to
17    compensate for work time lost for such religious reasons.
18    Any employee who elects such deferred work shall be
19    compensated at the wage rate which he or she would have
20    earned during the originally scheduled work period. The
21    employer may require that an employee who plans to take
22    time off from work in order to practice his or her
23    religious beliefs provide the employer with a notice of his
24    or her intention to be absent from work not exceeding 5
25    days prior to the date of absence.
26        (E-5) Religious discrimination. For any employer to

 

 

HB4083- 5 -LRB101 16058 KTG 65420 b

1    impose upon a person as a condition of obtaining or
2    retaining employment, including opportunities for
3    promotion, advancement, or transfer, any terms or
4    conditions that would require such person to violate or
5    forgo a sincerely held practice of his or her religion
6    including, but not limited to, the wearing of any attire,
7    clothing, or facial hair in accordance with the
8    requirements of his or her religion, unless, after engaging
9    in a bona fide effort, the employer demonstrates that it is
10    unable to reasonably accommodate the employee's or
11    prospective employee's sincerely held religious belief,
12    practice, or observance without undue hardship on the
13    conduct of the employer's business.
14        Nothing in this Section prohibits an employer from
15    enacting a dress code or grooming policy that may include
16    restrictions on attire, clothing, or facial hair to
17    maintain workplace safety or food sanitation.
18        (F) Training and apprenticeship programs. For any
19    employer, employment agency or labor organization to
20    discriminate against a person on the basis of age in the
21    selection, referral for or conduct of apprenticeship or
22    training programs.
23        (G) Immigration-related practices.
24            (1) for an employer to request for purposes of
25        satisfying the requirements of Section 1324a(b) of
26        Title 8 of the United States Code, as now or hereafter

 

 

HB4083- 6 -LRB101 16058 KTG 65420 b

1        amended, more or different documents than are required
2        under such Section or to refuse to honor documents
3        tendered that on their face reasonably appear to be
4        genuine; or
5            (2) for an employer participating in the E-Verify
6        Program, as authorized by 8 U.S.C. 1324a, Notes, Pilot
7        Programs for Employment Eligibility Confirmation
8        (enacted by PL 104-208, div. C title IV, subtitle A) to
9        refuse to hire, to segregate, or to act with respect to
10        recruitment, hiring, promotion, renewal of employment,
11        selection for training or apprenticeship, discharge,
12        discipline, tenure or terms, privileges or conditions
13        of employment without following the procedures under
14        the E-Verify Program.
15        (H) (Blank).
16        (I) Pregnancy. For an employer to refuse to hire, to
17    segregate, or to act with respect to recruitment, hiring,
18    promotion, renewal of employment, selection for training
19    or apprenticeship, discharge, discipline, tenure or terms,
20    privileges or conditions of employment on the basis of
21    pregnancy, childbirth, or medical or common conditions
22    related to pregnancy or childbirth. Women affected by
23    pregnancy, childbirth, or medical or common conditions
24    related to pregnancy or childbirth shall be treated the
25    same for all employment-related purposes, including
26    receipt of benefits under fringe benefit programs, as other

 

 

HB4083- 7 -LRB101 16058 KTG 65420 b

1    persons not so affected but similar in their ability or
2    inability to work, regardless of the source of the
3    inability to work or employment classification or status.
4        (J) Pregnancy; reasonable accommodations.
5            (1) If after a job applicant or employee, including
6        a part-time, full-time, or probationary employee,
7        requests a reasonable accommodation, for an employer
8        to not make reasonable accommodations for any medical
9        or common condition of a job applicant or employee
10        related to pregnancy or childbirth, unless the
11        employer can demonstrate that the accommodation would
12        impose an undue hardship on the ordinary operation of
13        the business of the employer. The employer may request
14        documentation from the employee's health care provider
15        concerning the need for the requested reasonable
16        accommodation or accommodations to the same extent
17        documentation is requested for conditions related to
18        disability if the employer's request for documentation
19        is job-related and consistent with business necessity.
20        The employer may require only the medical
21        justification for the requested accommodation or
22        accommodations, a description of the reasonable
23        accommodation or accommodations medically advisable,
24        the date the reasonable accommodation or
25        accommodations became medically advisable, and the
26        probable duration of the reasonable accommodation or

 

 

HB4083- 8 -LRB101 16058 KTG 65420 b

1        accommodations. It is the duty of the individual
2        seeking a reasonable accommodation or accommodations
3        to submit to the employer any documentation that is
4        requested in accordance with this paragraph.
5        Notwithstanding the provisions of this paragraph, the
6        employer may require documentation by the employee's
7        health care provider to determine compliance with
8        other laws. The employee and employer shall engage in a
9        timely, good faith, and meaningful exchange to
10        determine effective reasonable accommodations.
11            (2) For an employer to deny employment
12        opportunities or benefits to or take adverse action
13        against an otherwise qualified job applicant or
14        employee, including a part-time, full-time, or
15        probationary employee, if the denial or adverse action
16        is based on the need of the employer to make reasonable
17        accommodations to the known medical or common
18        conditions related to the pregnancy or childbirth of
19        the applicant or employee.
20            (3) For an employer to require a job applicant or
21        employee, including a part-time, full-time, or
22        probationary employee, affected by pregnancy,
23        childbirth, or medical or common conditions related to
24        pregnancy or childbirth to accept an accommodation
25        when the applicant or employee did not request an
26        accommodation and the applicant or employee chooses

 

 

HB4083- 9 -LRB101 16058 KTG 65420 b

1        not to accept the employer's accommodation.
2            (4) For an employer to require an employee,
3        including a part-time, full-time, or probationary
4        employee, to take leave under any leave law or policy
5        of the employer if another reasonable accommodation
6        can be provided to the known medical or common
7        conditions related to the pregnancy or childbirth of an
8        employee. No employer shall fail or refuse to reinstate
9        the employee affected by pregnancy, childbirth, or
10        medical or common conditions related to pregnancy or
11        childbirth to her original job or to an equivalent
12        position with equivalent pay and accumulated
13        seniority, retirement, fringe benefits, and other
14        applicable service credits upon her signifying her
15        intent to return or when her need for reasonable
16        accommodation ceases, unless the employer can
17        demonstrate that the accommodation would impose an
18        undue hardship on the ordinary operation of the
19        business of the employer.
20        For the purposes of this subdivision (J), "reasonable
21    accommodations" means reasonable modifications or
22    adjustments to the job application process or work
23    environment, or to the manner or circumstances under which
24    the position desired or held is customarily performed, that
25    enable an applicant or employee affected by pregnancy,
26    childbirth, or medical or common conditions related to

 

 

HB4083- 10 -LRB101 16058 KTG 65420 b

1    pregnancy or childbirth to be considered for the position
2    the applicant desires or to perform the essential functions
3    of that position, and may include, but is not limited to:
4    more frequent or longer bathroom breaks, breaks for
5    increased water intake, and breaks for periodic rest;
6    private non-bathroom space for expressing breast milk and
7    breastfeeding; seating; assistance with manual labor;
8    light duty; temporary transfer to a less strenuous or
9    hazardous position; the provision of an accessible
10    worksite; acquisition or modification of equipment; job
11    restructuring; a part-time or modified work schedule;
12    appropriate adjustment or modifications of examinations,
13    training materials, or policies; reassignment to a vacant
14    position; time off to recover from conditions related to
15    childbirth; and leave necessitated by pregnancy,
16    childbirth, or medical or common conditions resulting from
17    pregnancy or childbirth.
18        For the purposes of this subdivision (J), "undue
19    hardship" means an action that is prohibitively expensive
20    or disruptive when considered in light of the following
21    factors: (i) the nature and cost of the accommodation
22    needed; (ii) the overall financial resources of the
23    facility or facilities involved in the provision of the
24    reasonable accommodation, the number of persons employed
25    at the facility, the effect on expenses and resources, or
26    the impact otherwise of the accommodation upon the

 

 

HB4083- 11 -LRB101 16058 KTG 65420 b

1    operation of the facility; (iii) the overall financial
2    resources of the employer, the overall size of the business
3    of the employer with respect to the number of its
4    employees, and the number, type, and location of its
5    facilities; and (iv) the type of operation or operations of
6    the employer, including the composition, structure, and
7    functions of the workforce of the employer, the geographic
8    separateness, administrative, or fiscal relationship of
9    the facility or facilities in question to the employer. The
10    employer has the burden of proving undue hardship. The fact
11    that the employer provides or would be required to provide
12    a similar accommodation to similarly situated employees
13    creates a rebuttable presumption that the accommodation
14    does not impose an undue hardship on the employer.
15        No employer is required by this subdivision (J) to
16    create additional employment that the employer would not
17    otherwise have created, unless the employer does so or
18    would do so for other classes of employees who need
19    accommodation. The employer is not required to discharge
20    any employee, transfer any employee with more seniority, or
21    promote any employee who is not qualified to perform the
22    job, unless the employer does so or would do so to
23    accommodate other classes of employees who need it.
24        (K) Notice.
25            (1) For an employer to fail to post or keep posted
26        in a conspicuous location on the premises of the

 

 

HB4083- 12 -LRB101 16058 KTG 65420 b

1        employer where notices to employees are customarily
2        posted, or fail to include in any employee handbook
3        information concerning an employee's rights under this
4        Article, a notice, to be prepared or approved by the
5        Department, summarizing the requirements of this
6        Article and information pertaining to the filing of a
7        charge, including the right to be free from unlawful
8        discrimination, the right to be free from sexual
9        harassment, and the right to certain reasonable
10        accommodations. The Department shall make the
11        documents required under this paragraph available for
12        retrieval from the Department's website.
13            (2) Upon notification of a violation of paragraph
14        (1) of this subdivision (K), the Department may launch
15        a preliminary investigation. If the Department finds a
16        violation, the Department may issue a notice to show
17        cause giving the employer 30 days to correct the
18        violation. If the violation is not corrected, the
19        Department may initiate a charge of a civil rights
20        violation.
21(Source: P.A. 100-100, eff. 8-11-17; 100-588, eff. 6-8-18;
22101-221, eff. 1-1-20.)
 
23    Section 5. The Right to Privacy in the Workplace Act is
24amended by changing Section 12 as follows:
 

 

 

HB4083- 13 -LRB101 16058 KTG 65420 b

1    (820 ILCS 55/12)
2    Sec. 12. Use of Employment Eligibility Verification
3Systems.
4    (a) Prior to choosing to voluntarily enroll in any
5Electronic Employment Verification System, including the
6E-Verify program and the Basic Pilot program, as authorized by
78 U.S.C. 1324a, Notes, Pilot Programs for Employment
8Eligibility Confirmation (enacted by P.L. 104-208, div. C,
9title IV, subtitle A), employers are urged to consult the
10Illinois Department of Labor's website for current information
11on the accuracy of E-Verify and to review and understand an
12employer's legal responsibilities relating to the use of the
13voluntary E-Verify program.
14    (a-1) The Illinois Department of Labor (IDOL) shall post on
15its website information or links to information from the United
16States Government Accountability Office, Westat, or a similar
17reliable source independent of the Department of Homeland
18Security regarding: (1) the accuracy of the E-Verify databases;
19(2) the approximate financial burden and expenditure of time
20that use of E-Verify requires from employers; and (3) an
21overview of an employer's responsibilities under federal and
22state law relating to the use of E-Verify.
23    (b) Upon initial enrollment in an Employment Eligibility
24Verification System or within 30 days after the effective date
25of this amendatory Act of the 96th General Assembly, an
26employer enrolled in E-Verify or any other Employment

 

 

HB4083- 14 -LRB101 16058 KTG 65420 b

1Eligibility Verification System must attest, under penalty of
2perjury, on a form prescribed by the IDOL available on the IDOL
3website:
4        (1) that the employer has received the Basic Pilot or
5    E-Verify training materials from the Department of
6    Homeland Security (DHS), and that all employees who will
7    administer the program have completed the Basic Pilot or
8    E-Verify Computer Based Tutorial (CBT); and
9        (2) that the employer has posted the notice from DHS
10    indicating that the employer is enrolled in the Basic Pilot
11    or E-Verify program and the anti-discrimination notice
12    issued by the Office of Special Counsel for
13    Immigration-Related Unfair Employment Practices (OSC),
14    Civil Rights Division, U.S. Department of Justice in a
15    prominent place that is clearly visible to both prospective
16    and current employees. The employer must maintain the
17    signed original of the attestation form prescribed by the
18    IDOL, as well as all CBT certificates of completion and
19    make them available for inspection or copying by the IDOL
20    at any reasonable time.
21    (c) It is a violation of this Act for an employer enrolled
22in an Employment Eligibility Verification System, including
23the E-Verify program and the Basic Pilot program:
24        (1) to fail to display the notices supplied by DHS and
25    OSC in a prominent place that is clearly visible to both
26    prospective and current employees;

 

 

HB4083- 15 -LRB101 16058 KTG 65420 b

1        (2) to allow any employee to use an Employment
2    Eligibility Verification System prior to having completed
3    CBT;
4        (3) to fail to take reasonable steps to prevent an
5    employee from circumventing the requirement to complete
6    the CBT by assuming another employee's E-Verify or Basic
7    Pilot user identification or password;
8        (4) (blank) to use the Employment Eligibility
9    Verification System to verify the employment eligibility
10    of job applicants prior to hiring or to otherwise use the
11    Employment Eligibility Verification System to screen
12    individuals prior to hiring and prior to the completion of
13    a Form I-9;
14        (5) (blank) to terminate an employee or take any other
15    adverse employment action against an individual prior to
16    receiving a final nonconfirmation notice from the Social
17    Security Administration or the Department of Homeland
18    Security;
19        (6) to fail to notify an individual, in writing, of the
20    employer's receipt of a tentative nonconfirmation notice,
21    of the individual's right to contest the tentative
22    nonconfirmation notice, and of the contact information for
23    the relevant government agency or agencies that the
24    individual must contact to resolve the tentative
25    nonconfirmation notice;
26        (7) to fail to safeguard the information contained in

 

 

HB4083- 16 -LRB101 16058 KTG 65420 b

1    the Employment Eligibility Verification System, and the
2    means of access to the system (such as passwords and other
3    privacy protections). An employer shall ensure that the
4    System is not used for any purpose other than employment
5    verification of newly hired employees and shall ensure that
6    the information contained in the System and the means of
7    access to the System are not disseminated to any person
8    other than employees who need such information and access
9    to perform the employer's employment verification
10    responsibilities.
11    (c-1) Any claim that an employer refused to hire,
12segregated, or acted with respect to recruitment, hiring,
13promotion, renewal or employment, selection for training or
14apprenticeship, discharge, discipline, tenure or terms,
15privileges, or conditions of employment without following the
16procedures of the Employment Eligibility Verification System,
17including the Basic Pilot and E-Verify programs, may be brought
18under paragraph (G)(2) of Section 2-102 of the Illinois Human
19Rights Act.
20    (c-2) It is a violation of this Section for an individual
21to falsely pose as an employer in order to enroll in an
22Employment Eligibility Verification System or for an employer
23to use an Employment Eligibility Verification System to access
24information regarding an individual who is not an employee of
25the employer.
26    (d) Preemption. Neither the State nor any of its political

 

 

HB4083- 17 -LRB101 16058 KTG 65420 b

1subdivisions, nor any unit of local government, including a
2home rule unit, may require any employer to use an Employment
3Eligibility Verification System, including under the following
4circumstances:
5        (1) as a condition of receiving a government contract;
6        (2) as a condition of receiving a business license; or
7        (3) as penalty for violating licensing or other similar
8    laws.
9    This subsection (d) is a denial and limitation of home rule
10powers and functions under subsection (h) of Section 6 of
11Article VII of the Illinois Constitution.
12(Source: P.A. 95-138, eff. 1-1-08; 96-623, eff. 1-1-10;
1396-1000, eff. 7-2-10.)