Legal updates

June 20, 2021

           The Illinois General Assembly has made up for lost time by passing multiple labor and employment bills in 2021. If signed by Governor Pritzker, many of these bills will have a significant impact on Illinois public employers. This spate of legislation follows only a handful of new labor and employment laws that passed during the height of the 2020 COVID pandemic. A summary of some of the more significant bills that await Governor Pritzker’s signature include the following:

New Labor & Employment Bills Pending the Governor’s Signature

• Senate Bill 2486: Would amend the Illinois Personnel Record Review Act by allowing administrative complaints about the improper disclosure of an employee’s disciplinary records up to three (3) years after the date of disclosure.

• Senate Bill 2240: Would amend the Illinois Government Severance Pay Act by requiring all employment transition agreements for university presidents or chancellors to contain a provision clarifying to which department the president or chancellor is transitioning, and that the president or chancellor’s compensation shall not exceed the annual compensation of the highest paid employee in the department.

• Senate Bill 2150: would amend the firefighter hiring provisions of the Illinois Municipal Code and Fire Protection District Act by allowing entry level candidates to exceed 35 years of age if they have any amount of volunteer, paid-on-call or part-time firefighter experience (currently, such candidates must have at least 5 years of experience immediately preceding the time the municipality began using full-time firefighters).

• Senate Bill 0525: Would amend the Illinois Public Labor Relations Act in the following manner:

o  Clarify that confidential, managerial and supervisory employee status shall be based on actual employee job duties and not solely on written job descriptions.

o  Unit clarification procedures may be filed when (1) substantial changes occur in the duties and functions of an existing job title; (2) an existing job title that is logically encompassed within an existing unit was inadvertently excluded; (3) a newly created job title is logically encompassed in an existing unit; (4) a significant change occurs in statutory or case law that affects the bargaining rights of employees; (5) a determination needs to be made as to the unit placement of positions in dispute following a majority interest certification of representative; (6) a determination needs to be made about the unit placement of positions in dispute following a certification of representative issued following a direction of election; (7) the parties have agreed to eliminate a position because the employer no longer uses it; (8) the parties have agreed to exclude some of the positions in a job title from a bargaining unit; or (9) as otherwise prescribed in the Illinois Labor Relations Board’s rules.

o  No collective bargaining agreement may extend more than 12 months after the date on which the term of office of an Illinois executive branch constitutional officer begins.

• House Bill 3763: Would amend the Illinois Fire Protection District Act by requiring Fire Protection Districts which plan to close a fire station, disconnect territory or annex territory to first conduct a response-time study that shows estimated response times to the territory currently served and estimated response times to that territory after the closure, disconnection or annexation. 

• House Bill 3662: Would amend the Illinois Workers Compensation Act by creating a rebuttable presumption that contagious staph infections (including MSRA) contracted by firefighters and EMTs are work-related injuries.

• House Bill 3582: Would amend the Illinois Victims’ Economic Security and Safety Act by adding a new basis of protection for those employees who are victims of any “crime of violence,” and expanding the Act’s protections to family members such as civil union partners, grandparents, children, grandchildren, siblings or “any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee.” Employees also would no longer be required to provide certification of their eligibility for benefits under the Act more than once every 12 months. 

• House Bill 2568: Would amend the Public Safety Employee Benefits Act by defining a “health insurance plan” as including health insurance options that are codified in a collective bargaining agreement. If a collective bargaining agreement is silent on plan options, a health insurance plan for PSEBA purposes “shall be negotiated with the authorized representative and subject to the grievance process.”

• House Bill 2521: Would amend the Illinois Public Labor Relations Act and Illinois Educational Labor Relations Act in the following manner:

o  Showings of interest in the election and majority interest contexts could be established by electronic communications and signatures. The showing of interest would be valid only if signed within 12 months prior to the filing of the petition. 

o  Secret ballot elections could be conducted electronically using an electronic voting system.

o  A new unfair labor practice would be created that makes it illegal for public and educational employers to “promise, threaten, or take any action (i) to permanently replace employees who are participating a lawful strike; (ii) to discriminate against an employee who is working or has unconditionally offered to return to work for the employer because the employee supported or participated in a lawful strike; or (iii) to lockout, suspend or otherwise withhold employment from employees in order to influence the position of such employees or their unions in collective bargaining prior to a lawful strike.

• House Bill 1838: Would amend the Illinois Human Rights Act by expanding the definition of disability discrimination to include discrimination based on an individual’s association with a disabled person.

• House Bill 0351: Would amend the downstate firefighters Article of the Illinois Pension Code by requiring a firefighter’s secondary employer to report injuries, illnesses or exposures to both the primary employer’s pension fund as well as the Illinois Department of Insurance.

• House Bill 0118: Would amend the Illinois Wage Payment and Collection Act by increasing the monthly penalty for underpayments from 2% of such underpayments to 5% of such underpayments.

• House Bill 0121: Would amend the Illinois Human Rights Act by adding a new protected category called “work authorization” status, which prohibits discrimination based on an individual’s status of being a person born outside the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States.

• Senate Bill 1965 (signed by Governor Pritzker on June 16): Amends the State Commemorative Dates Act, the Illinois School Code and several related statutes by adding “Juneteenth National Freedom Day” as a state holiday, to be recognized on June 19^th of each year. 

Law Enforcement Reform Law Trailer Bill

A so-called “trailer bill” (House Bill 3443) also passed the legislature, which would modify various provisions of the Police Reform Law that passed earlier this year, including but not limited to the following:

• The amendments to the Illinois Public Labor Relations Act that make police residency a permissive subject of bargaining for municipalities with populations over 100,000 would not take effect until July 1, 2022.

• The State Police Act, Municipal Code and Counties Code definition of “grenade launcher” and “tracked armored vehicle” would be modified for purposes of the military equipment surplus program.

• The Illinois Police Training Act would be amended by requiring the 3-year training cycle on constitutional law and proper use of law enforcement authority to consist of at least 30 hours every 3 years. The amendments also clarify that the training should be provided at no cost to employees, and employees shall be paid for their attendance at such training. These requirements will take effect on January 1, 2022.

• The Law-Enforcement Officer-Worn Body Camera Act would be amended to clarify that all State agencies with law enforcement officers (not just the State Police) shall implement body cameras by January 1, 2025. The bill would also clarify that body cameras are not required for court security officers, State’s Attorney investigators, and Attorney General investigators. The bill would also be amended to allow body cameras to be turned off inside courthouses. The bill would also clarify that police officers are prohibited from viewing body camera footage before completing an incident report only when:

o  The officer has been involved in or is a witness to an officer-involved shooting, use of deadly force incident, or use of force incidents resulting in great bodily harm; or

o  Is ordered to write a report in response to or during the investigation of a misconduct complaint against the officer.

The bill would also amend the Act to allow for the destruction of body camera recordings that were made for a non-law enforcement related activity or encounter. Reporting provisions would also be created if a body camera recording has been altered, erased or destroyed prior to the expiration of the 90-day storage period.

• The Uniform Crime Reporting Act would be amended to clarify a “mental health crisis” for purposes of a law enforcement agency’s monthly reporting requirements for those officers dispatched to deal with a person experiencing a mental health crisis or incident.

• The Criminal Code’s definition of a peace officer’s use of force in making arrests would be modified, including clarifying when deadly force is permitted. Limitations would also be placed on the use of electric weapons and chemical agents. Clarifications would also be made to the definition of the crime of “law enforcement officer misconduct.”

For Now, the “Company Officer” Supervisory Definition Remains the Same

One notable bill that did not pass the General Assembly was Senate Bill 220, which would have eliminated the so-called “company officer” test for determining a firefighter’s supervisory status. As a result, the Illinois Public Labor Relations Act still provides that in new firefighter units, employees shall consist of firefighters of the rank of company officers and below. In essence, this means that firefighter ranks above that of a company officer (which is commonly considered someone in charge of a vehicle) automatically qualify as “supervisors.” If Senate Bill 220 ever becomes law, however, public employers would have to prove that ranks above a company officer are “supervisors” using the more traditional four-part supervisory test, which includes a more difficult “preponderance of time” requirement.

Could Collective Bargaining Become a State Constitutional Right in 2022?

In another significant development, the General Assembly approved the submission of a proposed constitutional amendment to Illinois voters. Specifically, Senate Joint Resolution 11 allows Illinois voters in the 2022 November election to add the following provision to the Illinois Constitution:

Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.

While the second sentence appears to ban the enactment of so-called “right-to-work” ordinances at the municipal level, the potential ramifications of the first sentence are much broader, especially for Illinois public employers. Illinois public employers could conceivably run afoul of the first sentence if their actions are perceived to violate an employee’s “fundamental right to organize and to bargain collectively.” In turn, aggrieved unions and employees could attempt to sue a public employer in state or federal court for a constitutional violation, in addition to filing unfair labor practice charges with the Illinois Labor Relations Board or the Illinois Educational Labor Relations Board. If such civil actions are pursued, public employers could be exposed to demands attorneys’ fees if a constitutional violation was ever proven (whereas such remedies usually are unavailable in labor board proceedings).

Clark Baird Smith LLP will closely monitor these and other legislative developments in the coming months. In the meantime, now is the time for public employers to share any concerns about these pending bills with the Governor’s Office. Alternatively, public employers should consider revisiting their internal employment policies and procedures, especially those provisions that may be affected by some of the pending bills.

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