By KERRY SMITH
Jackson Lewis P.C. Principal Thomas E. Berry Jr. says several employer-centric issues – both on the state and federal level – will likely be back front and center during 2019.
On the state level and on the heels of Missouri’s Nov. 6 passage of Proposition B that authorized an increase in the Show Me State’s minimum wage (from $7.85 to $8.60 in 2019 and ultimately to $12 over the next four years), Illinois will face similar discussion in Springfield. Illinois’ minimum wage is currently $8.25 in all but Chicago, where it is $12 per hour. Berry said although Gov. Bruce Rauner vetoed a House and Senate proposal to up the minimum wage to $15 by 2022, the topic will undoubtedly return early on in Gov.-elect J.B. Pritzker’s term.
“Illinois is heading toward increasing the minimum wage next year, but it will be somewhat symbolic since the market is already paying above minimum wage,” said Berry. “Particularly for employers in our region, it will become increasingly even more competitive to attract and retain workers when an applicant can drive 20 miles across the state line to earn a few dollars more per hour.”
And with regard to addressing gender-based wage disparities in Illinois, Rauner’s veto of two bills over the last two years that would have prohibited employers from asking applicants’ wage histories (HB 4163 in 2018 and HB 2462 in 2017) will likely spur renewed discussion in both houses during 2019 on this topic, according to Berry.
“Legislation to address wage inequality that still exists between men’s and women’s salaries will surely be a topic on the state level in the new calendar year,” Berry said. “A number of other bills seeking to address wage inequality on racial demographics are also likely to be introduced in 2019.”
In addition to enacting legislation that Rauner vetoed, Pritzker will also be able to affect employers in Illinois in 2019 with individuals that he will appoint to key agency positions including the Illinois Department of Labor, the Illinois Department of Human Rights and the Illinois Human Rights Commission, which Berry said will see a number of structural changes arising from SB 20 that was signed into law this year.
At the federal level, the salary rule for “white collar” exempt employees is sure to dominate a good portion of discussion during 2019, Berry said. “The Trump Department of Labor says it intends to issue a new salary rule by March 2019,” said Berry. “Whatever amount the Administration sets, it will certainly be applicable by Summer 2019 or by Fall 2019 at the latest. Right now, the minimum salary level is $23,660 annually. A lot of people are guessing it will wind up in the mid-$30,000s. Employers need to start looking at their labor budgets now for exempt executive, administrative and professional employees to anticipate what effect an increased minimum salary level may have on their bottom lines in 2019,” he added.
Cases headed to the U.S. Supreme Court from the U.S. Department of Justice and the Equal Employment Opportunity Commission – each representing an opposing view – will be watched closely by employers nationwide during 2019, Berry said.
“Right now, the EEOC is arguing that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation while the DOJ argues that it does not,” he said, “and the EEOC’s stance is that such discrimination constitutes a type of sex discrimination. Cases are going to the Supreme Court with the federal government essentially arguing both sides.”
Berry added that with new U.S. Supreme Court Justice Brett Kavanaugh added to the bench, there is a greater chance that the Court will rule that Title VII, as enacted in 1964, does not include sexual orientation.
In Illinois, workers are already protected against discrimination based upon sexual orientation and have been since 2004, when then-state Sen. Barack Obama introduced a bill that ultimately amended the Illinois Human Rights Act, granting such protection, Berry said.
Portions of the Patient Protection and Affordable Care Act that govern employer wellness initiatives will again be discussed by the EEOC in 2019, Berry said. A federal court ruling made one year ago that takes effect Jan. 1, 2019 invalidates the EEOC’s rule that limited employer wellness incentives and penalties to 30 percent of group health plan premiums. “This is an ACA incentive that employers will definitely want to be aware of,” said Berry. “It allows employers to more aggressively push wellness initiatives as a way of stemming their increased medical issues and related insurance costs. That being said, the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act, both of which are enforced by the EEOC, strictly prohibit making employment decisions based upon an employee’s medical situation. Once again, we’re seeing dueling federal stances on this issue, with the EEOC taking a narrow view through the ADA/GINA and being at odds with the Affordable Care Act.”
Jackson Lewis P.C. serves clients across nation in premier workplace law representation to management. The firm has a robust presence in Southwestern Illinois and across the Greater St. Louis region.
By KERRY SMITH