AUTHORITY: Implementing and authorized by Sections 5, 10, 15 and 20 of the Illinois Right to Privacy in the Workplace Act (Ill. Rev. Stat. 1991, ch. 48, pars. 2855, 2860, 2865 and 2870).

SOURCE: Adopted at 16 Ill. Reg. 16586, effective October 20, 1992.

SUBPART A: GENERAL PROVISIONS

 

Section 360.100  Purpose and Scope

 

The Right to Privacy in the Workplace Act is designed to prohibit employers from discharging or otherwise retaliating against employees or prospective employees who use lawful products outside the workplace during nonworking hours and to prohibit employers from making inquiries regarding claims filed by prospective employees under the Worker's Compensation Act or the Worker's Occupational Diseases Act.

 

Section 360.110  Definitions

 

a)         "Act" means the Right to Privacy in the Workplace Act (Ill. Rev. Stat. 1991, ch. 48, pars. 2851 et seq.).

 

b)         "Department" means the Illinois Department of Labor, its director and his/her authorized representatives.

 

c)         "Director" means the Director of the Illinois Department of Labor.

 

d)         "Employer" includes any individual, partnership, association, corporation, business trust, enterprise or any person or group of persons for whom the employee is performing work with a reasonable expectation of compensation.

 

e)         "Hearing Officer" means an individual authorized by the Department to determine the merits of individual claims alleging violations of the Act.

 

f)         "Prospective employee" or "applicant for employment" means not only an individual applying for a job position, but also an individual to whom an offer of employment has been extended, but who has not yet begun working for the employer.

 

g)         "Lawful Products" shall include, but shall not be limited to, all tobacco products, all alcoholic beverages, all food products, all over-the-counter drugs, and any drugs lawfully prescribed by the employee's own physician. Provided however, that any use or overconsumption of these lawful products that directly impairs the performance of the employee at the workplace shall not be protected under this Act.

 

h)         "Workplace" is any location where work is performed for the benefit of the employer.

SUBPART B: INVESTIGATION OF CLAIMS UNDER THE ACT

 

Section 360.120  Filing of the Claim and the Employer's Response

 

a)         An employee may file a complaint with the Department alleging a violation of the Act by filling out and signing the claim form provided by the Department and submitting the form and any supporting documentation. Complaints shall be filed within 180 days after termination or the complained of incident.

 

b)         Complaints shall be reviewed to determine whether there is cause for investigation.

 

c)         When appropriate, the Department will notify the employer of the existence of the claim, and will include sufficient details of the complaint to enable a reasonable response.

 

d)         The employer's response must be filed with the Department within 10 days after notification.

 

e)         Upon receipt of an employer's response disputing the claim, the Department may, when appropriate, send a copy of the employer's response to the claimant.

 

f)         If the employee disagrees with the employer's response, he/she must submit a response to the Department within 10 days stating his/her reasons for the disagreement.  If the employee fails to submit a response, the Department shall dismiss the claim.

 

g)         If the employer fails to respond within the prescribed deadline, the Department shall review the information submitted by the employee in order to determine whether an investigative conference on the claim is warranted.

 

h)         The Department may consider untimely submissions by either party upon written request by the party within a reasonable period of time, if there is a showing that the delay was occasioned by good cause beyond the party's control.

 

Section 360.130  Scheduling and Notice of Informal Investigative Conference

 

a)         When the Department is unable to resolve a dispute upon review of the information submitted by the parties, the Department may schedule an informal investigative conference before a Hearing Officer.  The Department conducts conferences to obtain further information; to determine if there is a violation of the Act; and to attempt to resolve the matter equitably.

 

b)         A written notice of conference shall be sent to the parties not less than 10 days prior to the date of the conference.

 

Section 360.140  Issuance of Administrative Subpoena

 

The Department may issue an administrative subpoena to compel the attendance of a party or witness and/or the production of documents upon the Department's determination that the information to be produced by a subpoena is necessary and relevant to the Department's investigation and that the Department cannot obtain the information by any other reasonable means.

 

Section 360.150  Application of the Rules of Evidence, Pleading or Procedure in an Investigative Conference

 

When a Hearing Officer makes an investigation or conducts a conference, the Hearing Officer is not bound either by the rules of evidence or by any technical or formal rules of pleading or procedure.

 

Section 360.160  Attorneys and Witnesses in Investigative Conferences

 

A party may be accompanied at an investigative conference by his/her attorney, and by a translator, if necessary.  The parties may bring witnesses to the conference, but the Hearing Officer shall decide what witnesses shall be heard and in what order.  The Hearing Officer may exclude witnesses from the conference when they are not giving testimony.  The Hearing Officer shall conduct and control the proceedings.  No tape recordings, stenographic report or other verbatim record of the conference shall be made.

 

Section 360.170  Disruptive Conduct at Investigative Conferences

 

If any person becomes so disruptive or abusive that a full and fair conference cannot be conducted, the Hearing Officer shall exclude the person from the conference.  The Hearing Officer, in his/her discretion, may take any of the following actions: continue the conference without the participation of the excluded individual; render a decision based upon the evidence previously presented; dismiss the employee's claim, or strike the employer's response.

 

Section 360.180  Continuances

 

Parties shall be prepared to proceed at the conference.  A request by one party for a continuance will be granted prior to the conference only if the other party agrees and the Hearing Officer grants permission.  Otherwise, a request for a continuance must be made in person to the Hearing Officer at the time of the conference and will be granted only upon a showing of good cause.