New Amendments to Illinois Laws Keep Employers Busy
Labor & Employment Alert 11/12/18 Gary R. Clark and Matthew A. Sloan
Lactation Break Provisions Amended
On August 21, 2018, the Nursing Mothers in the Workplace Act (“the Act”) was amended to require paid breaks for nursing mothers. The Act previously required employers to provide employees that needed to express breast milk reasonable breaks to do so for one year after the child's birth, but did not require that the breaks be paid. The amendments now provide that the required break time cannot be unpaid or otherwise reduce the employee's compensation. The amendments do provide, however, that these required breaks may run concurrently with any paid break time already provided to employees. Stated another way, the employee is not entitled to the regular paid break time provided to all employees in addition to the time required by this Act.
The exception to the Act's requirements is when an employer can demonstrate that providing the requisite paid breaks would “create an undue hardship,” as defined under the Illinois Human Rights Act. 820 ILCS 260/10.
As a result of these amendments, Illinois employers should review and update their current lactation break policies and procedures to ensure compliance with the new amendments.
New Employee Reimbursement Law Effective January 1, 2019
One of the big changes in wage and hour law for Illinois employers is the recent amendment of the Illinois Wage Payment and Collection Act to require employers to reimburse employees for “all necessary expenses that are incurred by the employee within the employee’s scope of employment and that are directly related to services performed for the employer.” 820 ILCS 115/9.5(a). This change will go into effect on January 1, 2019.
While it is unclear at this time how broadly courts will interpret the "necessary expenses" and "directly related to services performed for the employer" provisions, some states have interpreted similar language to include expenses such as data plans, internet bills, and other computing expenses, regardless of the marginal cost to employees. Indeed, some states have read similar language to require reimbursing employees who use their cell phones for work-related calls, even if those employees have unlimited phone/data plans and incur no additional expenses as a result of the calls.
Illinois employers are not without protections, however, as the amendment requires that (1) the employer must have “authorized or required” the employee to incur the expense, (2) the expense request, along with appropriate documentation, must be submitted within 30 calendar days, unless a longer period is provided for under the employer’s expense reimbursement policy, and (3) the employee must provide a signed, written statement in lieu of a receipt when supporting documentation has been lost or does not exist. 820 ILCS 115/9.5(a)-(b).
The key exception, however, is that the amendment does not apply where an employer already has an established written expense reimbursement policy addressing the expense at issue. 820 ILCS 115/9.5(a). Similarly, if the written expense reimbursement policy establishes specifications or guidelines for necessary expenditures, the employer is not liable under this section for the portion of the expenditure amount that exceeds the specifications or guidelines of the policy, so long as the employer does not institute a policy that provides for no reimbursement or de minimis reimbursement.
The takeaway from these changes is that Illinois employers must evaluate their expense reimbursement policies and revise accordingly. In revising expense reimbursement policies, employers need to be specific regarding what expenses are reimbursable and in what amounts as well as providing for a preapproval process for expenses not specifically addressed in the policy. Revised policies should be in place before January 1, 2019 and include, at the very least:
- A list of expenses that are generally reimbursable;
- The amount or proportion of the expense eligible for reimbursement;
- A pre-approval process for expenses not listed in the policy and above a specific dollar amount;
- The type of documentary evidence (receipts, invoices, etc.) required for approval and/or reimbursement; and
- The deadline for seeking reimbursement.
For additional information, please call your local Quarles & Brady attorney or contact:
- Gary R. Clark: (312) 715-5040 / [email protected]
- Matthew A. Sloan: (312) 715-5223 / [email protected]
 To show undue hardship, an employer must demonstrate that providing the break would be “prohibitively expensive or disruptive” based on (1) the nature and cost of the accommodation needed; (2) the overall financial resources of, and number of people employed at, the facility, the effect on expenses and resources, or the impact otherwise of the accommodation upon the operation of the facility; (3) the overall financial resources and size of the employer, including the number of employees and the number, type, and location of its facilities; and (4) the nature of the operations of the employer, including the composition, structure, and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility in question to the employer.