Thursday, October 24, 2019

What's New for HR in Illinois - 2019

Yesterday I did a report for one of my clients.  Today, I have been asked to talk to a networking group about What's New in HR.  In three weeks I have been asked to talk at a local Chamber of Commerce luncheon about What's Hot in HR.  So whether it new, hot or trending, I though I'd just jot down some thoughts I and several #HR friends had from a crowdsourcing post.

Let's start out with what is top of mind for me and my clients:

  1. SALARY HISTORY BAN: Don’t Ask for the Salary History of ANY applicant for employment of any position in Illinois effective last month.  This affects all employers regardless of size and if you decide not to follow the law then an applicant can come after you for up to 10k for damages.  Why? Asking perpetuates an already unequal pay issue for women who currently make 78 cents to every man's dollar or the same job with the same qualifications.
  2. SEXUAL HARASSMENT TRAINING FOR ALL EMPLOYEES IN ILLINOIS. Every employer in the state of Illinois will have to train all their employees annually  on sexual harassment prevention starting 1/1/20.  Specifically, the training must cover the following and if they do not there could be civil penalties up to $5k per offense.
    • Define sexual harassment;
    • Provide examples of prohibited conduct;
    • State that it is the employer’s responsibility to prevent, investigate and address sexual harassment; and
    • Summarize federal and state laws addressing sexual harassment, and available remedies for violation thereof.
  3. MINIMUM WAGE x3 IN ONE YEAR.  Next years double increase of minimum wage is going to hit employers not once but twice.  January 1 the minimum wage increases from 8.25 to 9.25 ($1) and in July it goes up another 75cents to $10 per hour.  Not to mention in six more months one year from the first increase it goes up another dollar to $11.  This puts Illinois among the 10 highest minimum wage states in the country.  That is an increase of $2.75 all in one years time.  Have you thought about how this is going to affect the rest of your staff and what type of compression pay issues it will cause? 
  4. POSITIVE FOR MARIJUANA DOES NOT = RESCINDED OFFER OF EMPLOYMENT: Don’t Test for Marijuana for hire effective 1/1/20 because your wasting your money if you do and you can't use it as a reason not to hire or affect any other condition of employment once hired.  However, you can maintain a drug free workplace which means that after someone is hired and are suspected of being under the influence at work they can be tested.  Of course, all this is up for debate at the upcoming IL Veto Session to be held soon in Springfield.  There are many conflicts with federal DOT and protective services testing requirements.  So while it may on the surface seem to apply to all there are some issues to be resolved.I'd wait till after that session to know for sure what is going to STICK.  
  5. DOL INCREASES EXEMPTION THRESHOLD FOR LOW AND HIGH PAID OVERTIME EXEMPT EMPLOYEES. No position paid less than $35, 568 (plus duties test) can be exempt from making overtime.  This is equivalent to $684 a week (previously $455 a week or $23,660 a year). Conversely, you can exempt any position paid over $107,432 a year (previously $100k a year) and they do not have to pass a duties test.  These totals are without regard to nondiscretionary bonuses or incentive payments.
  6. EXEMPTION DUTIES AUDIT. Just because the salary basis may have been or will be corrected based on #4 above doesn't mean the people you have as exempt (aka salaried) should actually be categories that way.  There is a lot more to salary basis to make a position exempt (see  https://www.dol.gov/whd/overtime/fs17a_overview.pdf). Typically, I find positions in the administrative and professional exemption category incorrect.  It's often based on the perception of what a professional or administrative job is and not based on the facts related to the duties.  The problem with this that an incorrect classification can lead to up to three years back pay for overtime not paid to someone who should have originally been classified as hourly or non-exempt.
  7. W2 EMPLOYEE VS 1099 INDEPENDENT CONTRACTOR MISCLASSIFICATIONS: Both IRS & IL Unemployment have a vested financial interest in whether or not employer classify positions correctly.  Most importantly the employee themselves has the most to loose aside paying their own taxes they could be earning benefits.  Like exemption misclassifications above an employer could be required to go back three years to pay salary and benefits.  I have some clients who are paying employees a stipend that does not even cover minimum wage for employees using their offices, computers, vehicles, etc. and have required hours.  That alone would not pass the 20 question IRS employee vs contractor test: https://www.irs.gov/newsroom/employee-or-independent-contractor-know-the-rules
Others within my network suggested the following which I plan to expand on soon.
  • Artificial Intelligence hot in recruiting -Chatbots
  • Cybersecurity in HR
  • Employee Engagement: Tenure & Peer2Peer Based Recognition
  • Employee Retention
  • Workplace Flexibility
  • Retaliation & Age Discrimination High on EEOC

Tuesday, October 1, 2019

ISERRA Requires Public Employers to PAY for Military Leave

It is important for public employers to understand the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) and how it impacts their obligation to employees who are on a military leave of absence.  ISERRA consolidated the state’s Military Leave of Absence Act, Public Employee Armed Services Rights Act, Municipal Employees Military Active Duty Act, and the Local Government Employee Benefits Continuation Act. 
Much of ISSERA is modeled after the federal Uniformed Serivces Employment and Reemployment Rights Act (USSERA).  However, there are important differences.
Who Is Protected?
  1. All members of the Armed Forces whether active duty, inactive duty or reserve, including the National Guard when performing state duty.
  2. All members of Military Auxiliary Radio System, United States Coast Guard Reserve, Civil Air Patrol and the Merchant Marines when performing official duties in support of an emergency.
  3. Members who are released from military duty with follow-on care by the Department of Defense.
What are Employers Obligations under ISSERA?
1.       During periods of military leave for annual training for employees who are members of a reserve component, public employers must continue to pay full compensation (concurrent compensation) for up to 30 days per calendar year.
2.       During periods of military leave for active service, a public employer must provide differential compensation, subject to the following:
  • Public employees can choose to use their accrued vacation leave with pay in lieu of differential compensation.
  • Differential compensation for voluntary active service is limited to 60 work days.
  • Public employees who have exhausted concurrent compensation in a calendar year must be given differential compensation.
The method for calculating differential compensation is covered in Section 5-10 of the Act.
3.       Employer provided health care must continue to be provided.
4.       A service member who is absent on military leave must be credited with the average of his or her evaluations received over the last three years preceding the leave.  This rating may not be less than the rating that the employee received for the last rating period preceding his or her leave.
Questions about this law and its impact on units of local government can be directed to the Attorney General’s ISERRA Advocate, Thomas Banning at 1-800-382-3000.