A Publication of WTVP

The New Year brings more than a calendar reset; it frequently marks the recognition of new legal rights and obligations. This year is no exception, and January 1, 2011, marks several significant changes for employers. One of the new laws will force many employers to change how they hire employees. The other extends leave rights to new categories of employees. A third law has been effective for several months, but warrants special New Year’s attention. Not-for-profit organizations are no exception and are covered by the new laws.

Employee Credit Privacy
The Illinois Employee Credit Privacy Act, effective January 1, 2011, will alter the way many Illinois employers, including not-for-profits, do background checks on potential employees. Employers will be prohibited from: (1) failing to hire, discharging or discriminating against an individual because of a credit history or a credit report; (2) inquiring about an applicant’s or employee’s credit history; and (3) ordering or obtaining an applicant’s or employee’s credit report from a consumer reporting agency. Employers are not prohibited from obtaining background or investigatory reports which do not contain credit histories. The Act prohibits retaliation or discrimination against a person who has: (1) filed a complaint under the Act; (2) testified, or participated in an investigation or action under the Act; or (3) opposed a violation of the Act. The Act provides employees a civil action for injunctive relief and damages, and the court is required to award reasonable attorney’s fees to a prevailing plaintiff.

Unlike many other laws that apply only to employers with 50 or more employees, the Act broadly defines “Employer” to include any individual or entity with one or more employees and agents of an employer. The agency element appears broad enough to include an employer’s managers, and to impose personal liability on hiring managers who violate the Act. Banks, their holding companies, savings and loans, credit unions, and similar financial institutions, insurance companies, law enforcement, certain agencies of state and local government, and debt collectors are excluded from the
Act’s restrictions.

The Act allows a credit inquiry if satisfactory credit history is an established bona fide occupational requirement for a position. However, at least one of the following circumstances must be present for a bona fide occupational requirement to exist:

  1. Either state or federal law requires bonding of the employee;
  2. The employee will have unsupervised access to cash, or assets worth $2,500 or more, or signatory power over assets worth $100 or more per transaction;
  3. The employee will be a manager involved in setting the direction or control of the business;
  4. The employee will have access to personal or confidential information, financial information, trade secrets, or state or national security information;
  5. The U.S. Department of Labor defines the position as one where credit history is a bona fide occupational requirement; or
  6. The employee’s credit history is otherwise required by state or federal law.

Although these provisions will ultimately be interpreted by the courts, it is likely that the exceptions will apply only to bonded employees, those with unsupervised access to company assets, or senior managers and others with access to sensitive information, such as a senior manager’s administrative assistant, and others with free access to such sensitive information.

Family Military Leave
The Illinois Family Military Leave Act provides leave for family members of service members called to active duty. Previously, leave was provided for spouses and parents of qualifying service members. Effective January 1, 2011, those leave rights are extended to include adult children and grandparents of such service members.

Also, if an employee takes leave under the federal Family and Medical Leave Act (FMLA) because of a qualifying service member’s “qualifying exigency,” leave rights under the Military Leave Act are reduced by the amount of leave taken under the FMLA.

Accommodating Breastfeeding Mothers  
The federal Patient Protection and Affordable Care Act (PPACA) was one of the most talked about pieces of legislation of the past decade. Buried inside that massive bill was a new requirement imposed on employers as of March 2010, but largely unrealized by employers. The PPACA amends the Fair Labor Standards Act (FLSA) and requires employers to allow nursing mothers a reasonable amount of unpaid break time to express breast milk, as frequently as needed by the nursing mother, for one year after the child’s birth. The PPACA applies to all employers, but allows for exemption of those with less than 50 employees where the PPACA imposes an undue hardship. Not-for-profit organizations with less than 50 employees may receive an exemption by demonstrating space or financial constraints.

The Illinois Nursing Mothers in the Workplace Act previously imposed similar obligations, but employers may need to modify their practices to reflect the new federal requirements. The Illinois law previously required nursing mothers to utilize their normal break time, but the PPACA now affords the mother broader discretion, and requires employers to accommodate her schedule. The time is unpaid, but employers must provide an appropriate, private space, other than a restroom, shielded from view, and free from intrusion. The PPACA applies only to employees not exempt from the FLSA’s overtime requirements, but Illinois law will still provide rights to all nursing mothers. Neither the PPACA nor Department of Labor’s publications provide guidance on the length of a “reasonable” break or application of the exemption to employers with more than 50 employees spread across many, small locations where such accommodations may present a hardship.

All employers, including not-for-profit organizations, should carefully review their policies and practices to make sure they are ready for the New Year’s changes. iBi