Right to Privacy in the Workplace Act.

  1. Law
  2. Illinois Compiled Statutes
  3. EMPLOYMENT
  4. Right to Privacy in the Workplace Act.

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(820 ILCS 55/1) (from Ch. 48, par. 2851)

Sec. 1. Short title. This Act may be cited as the Right to Privacy in the Workplace Act.

(Source: P.A. 87-807.)

 

(820 ILCS 55/5) (from Ch. 48, par. 2855)

Sec. 5. Discrimination for use of lawful products prohibited.

(a) Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. As used in this Section, "lawful products" means products that are legal under state law. For purposes of this Section, an employee is deemed on-call when the employee is scheduled with at least 24 hours' notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer's premises or other previously designated location by his or her employer or supervisor to perform a work-related task.

(b) This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. This Section does not apply to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties.

(c) It is not a violation of this Section for an employer to offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products provided that:

  • (1) differential premium rates charged employees reflect a differential cost to the employer; and
  • (2) employers provide employees with a statement delineating the differential rates used by insurance carriers.

(Source: P.A. 101-27, eff. 6-25-19.)

 

(820 ILCS 55/10) (from Ch. 48, par. 2860)

Sec. 10. Prohibited inquiries; online activities.

(a) It shall be unlawful for any employer to inquire, in a written application or in any other manner, of any prospective employee or of the prospective employee's previous employers, whether that prospective employee has ever filed a claim for benefits under the Workers' Compensation Act or Workers' Occupational Diseases Act or received benefits under these Acts.

(b)(1) Except as provided in this subsection, it shall be unlawful for any employer or prospective employer to:

  • (A) request, require, or coerce any employee or prospective employee to provide a user name and password or any password or other related account information in order to gain access to the employee's or prospective employee's personal online account or to demand access in any manner to an employee's or prospective employee's personal online account;
  • (B) request, require, or coerce an employee or applicant to authenticate or access a personal online account in the presence of the employer;
  • (C) require or coerce an employee or applicant to invite the employer to join a group affiliated with any personal online account of the employee or applicant;
  • (D) require or coerce an employee or applicant to join an online account established by the employer or add the employer or an employment agency to the employee's or applicant's list of contacts that enable the contacts to access the employee or applicant's personal online account;
  • (E) discharge, discipline, discriminate against, retaliate against, or otherwise penalize an employee for (i) refusing or declining to provide the employer with a user name and password, password, or any other authentication means for accessing his or her personal online account, (ii) refusing or declining to authenticate or access a personal online account in the presence of the employer, (iii) refusing to invite the employer to join a group affiliated with any personal online account of the employee, (iv) refusing to join an online account established by the employer, or (v) filing or causing to be filed any complaint, whether orally or in writing, with a public or private body or court concerning the employer's violation of this subsection; or
  • (F) fail or refuse to hire an applicant as a result of his or her refusal to (i) provide the employer with a user name and password, password, or any other authentication means for accessing a personal online account, (ii) authenticate or access a personal online account in the presence of the employer, or (iii) invite the employer to join a group affiliated with a personal online account of the applicant.

(2) Nothing in this subsection shall limit an employer's right to:

  • (A) promulgate and maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use; or
  • (B) monitor usage of the employer's electronic equipment and the employer's electronic mail without requesting or using any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's personal online account.

(3) Nothing in this subsection shall prohibit an employer from:

  • (A) obtaining about a prospective employee or an employee information that is in the public domain or that is otherwise obtained in compliance with this amendatory Act of the 97th General Assembly;
  • (B) complying with State and federal laws, rules, and regulations and the rules of self-regulatory organizations created pursuant to federal or State law when applicable;
  • (C) requesting or requiring an employee or applicant to share specific content that has been reported to the employer, without requesting or requiring an employee or applicant to provide a user name and password, password, or other means of authentication that provides access to an employee's or applicant's personal online account, for the purpose of:
    • (i) ensuring compliance with applicable laws or regulatory requirements;
    • (ii) investigating an allegation, based on receipt of specific information, of the unauthorized transfer of an employer's proprietary or confidential information or financial data to an employee or applicant's personal account;
    • (iii) investigating an allegation, based on receipt of specific information, of a violation of applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct;
    • (iv) prohibiting an employee from using a personal online account for business purposes; or
    • (v) prohibiting an employee or applicant from accessing or operating a personal online account during business hours, while on business property, while using an electronic communication device supplied by, or paid for by, the employer, or while using the employer's network or resources, to the extent permissible under applicable laws.

(4) If an employer inadvertently receives the username, password, or any other information that would enable the employer to gain access to the employee's or potential employee's personal online account through the use of an otherwise lawful technology that monitors the employer's network or employer-provided devices for network security or data confidentiality purposes, then the employer is not liable for having that information, unless the employer:

  • (A) uses that information, or enables a third party to use that information, to access the employee or potential employee's personal online account; or
  • (B) after the employer becomes aware that such information was received, does not delete the information as soon as is reasonably practicable, unless that information is being retained by the employer in connection with an ongoing investigation of an actual or suspected breach of computer, network, or data security. Where an employer knows or, through reasonable efforts, should be aware that its network monitoring technology is likely to inadvertently to receive such information, the employer shall make reasonable efforts to secure that information.

(5) Nothing in this subsection shall prohibit or restrict an employer from complying with a duty to screen employees or applicants prior to hiring or to monitor or retain employee communications as required under Illinois insurance laws or federal law or by a self-regulatory organization as defined in Section 3(A)(26) of the Securities Exchange Act of 1934, 15 U.S.C. 78(A)(26) provided that the password, account information, or access sought by the employer only relates to an online account that:

  • (A) an employer supplies or pays; or
  • (B) an employee creates or maintains on behalf of or under direction of an employer in connection with that employee's employment.

(6) For the purposes of this subsection:

  • (A) "Social networking website" means an Internet-based service that allows individuals to:
    • (i) construct a public or semi-public profile within a bounded system, created by the service;
    • (ii) create a list of other users with whom they share a connection within the system; and
    • (iii) view and navigate their list of connections and those made by others within the system.
  • "Social networking website" does not include electronic mail.
  • (B) "Personal online account" means an online account, that is used by a person primarily for personal purposes. "Personal online account" does not include an account created, maintained, used, or accessed by a person for a business purpose of the person's employer or prospective employer. (Source: P.A. 98-501, eff. 1-1-14; 99-610, eff. 1-1-17.)

 

(820 ILCS 55/12)

Sec. 12. Use of Employment Eligibility Verification Systems.

(a) Prior to choosing to voluntarily enroll in any Electronic Employment Verification System, including the E-Verify program and the Basic Pilot program, as authorized by 8 U.S.C. 1324a, Notes, Pilot Programs for Employment Eligibility Confirmation (enacted by P.L. 104-208, div. C, title IV, subtitle A), employers are urged to consult the Illinois Department of Labor's website for current information on the accuracy of E-Verify and to review and understand an employer's legal responsibilities relating to the use of the voluntary E-Verify program.

(a-1) The Illinois Department of Labor (IDOL) shall post on its website information or links to information from the United States Government Accountability Office, Westat, or a similar reliable source independent of the Department of Homeland Security regarding: (1) the accuracy of the E-Verify databases; (2) the approximate financial burden and expenditure of time that use of E-Verify requires from employers; and (3) an overview of an employer's responsibilities under federal and state law relating to the use of E-Verify.

(b) Upon initial enrollment in an Employment Eligibility Verification System or within 30 days after the effective date of this amendatory Act of the 96th General Assembly, an employer enrolled in E-Verify or any other Employment Eligibility Verification System must attest, under penalty of perjury, on a form prescribed by the IDOL available on the IDOL website:

  • (1) that the employer has received the Basic Pilot or E-Verify training materials from the Department of Homeland Security (DHS), and that all employees who will administer the program have completed the Basic Pilot or E-Verify Computer Based Tutorial (CBT); and
  • (2) that the employer has posted the notice from DHS indicating that the employer is enrolled in the Basic Pilot or E-Verify program and the anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice in a prominent place that is clearly visible to both prospective and current employees. The employer must maintain the signed original of the attestation form prescribed by the IDOL, as well as all CBT certificates of completion and make them available for inspection or copying by the IDOL at any reasonable time.

(c) It is a violation of this Act for an employer enrolled in an Employment Eligibility Verification System, including the E-Verify program and the Basic Pilot program:

  • (1) to fail to display the notices supplied by DHS and OSC in a prominent place that is clearly visible to both prospective and current employees;
  • (2) to allow any employee to use an Employment Eligibility Verification System prior to having completed CBT;
  • (3) to fail to take reasonable steps to prevent an employee from circumventing the requirement to complete the CBT by assuming another employee's E-Verify or Basic Pilot user identification or password;
  • (4) to use the Employment Eligibility Verification System to verify the employment eligibility of job applicants prior to hiring or to otherwise use the Employment Eligibility Verification System to screen individuals prior to hiring and prior to the completion of a Form I-9;
  • (5) to terminate an employee or take any other adverse employment action against an individual prior to receiving a final nonconfirmation notice from the Social Security Administration or the Department of Homeland Security;
  • (6) to fail to notify an individual, in writing, of the employer's receipt of a tentative nonconfirmation notice, of the individual's right to contest the tentative nonconfirmation notice, and of the contact information for the relevant government agency or agencies that the individual must contact to resolve the tentative nonconfirmation notice;
  • (7) to fail to safeguard the information contained in the Employment Eligibility Verification System, and the means of access to the system (such as passwords and other privacy protections). An employer shall ensure that the System is not used for any purpose other than employment verification of newly hired employees and shall ensure that the information contained in the System and the means of access to the System are not disseminated to any person other than employees who need such information and access to perform the employer's employment verification responsibilities.

(c-1) Any claim that an employer refused to hire, segregated, or acted with respect to recruitment, hiring, promotion, renewal or employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges, or conditions of employment without following the procedures of the Employment Eligibility Verification System, including the Basic Pilot and E-Verify programs, may be brought under paragraph (G)(2) of Section 2-102 of the Illinois Human Rights Act.

(c-2) It is a violation of this Section for an individual to falsely pose as an employer in order to enroll in an Employment Eligibility Verification System or for an employer to use an Employment Eligibility Verification System to access information regarding an individual who is not an employee of the employer.

(d) Preemption. Neither the State nor any of its political subdivisions, nor any unit of local government, including a home rule unit, may require any employer to use an Employment Eligibility Verification System, including under the following circumstances:

  • (1) as a condition of receiving a government contract;
  • (2) as a condition of receiving a business license; or
  • (3) as penalty for violating licensing or other similar laws.

This subsection (d) is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

(Source: P.A. 95-138, eff. 1-1-08; 96-623, eff. 1-1-10; 96-1000, eff. 7-2-10.)

 

(820 ILCS 55/15) (from Ch. 48, par. 2865)

Sec. 15. Administration and enforcement.

(a) The Director of Labor or his authorized representative shall administer and enforce the provisions of this Act. The Director of Labor may issue rules and regulations necessary to administer and enforce the provisions of this Act.

(b) If an employee or applicant for employment alleges that he or she has been denied his or her rights under this Act, he or she may file a complaint with the Department of Labor. The Department shall investigate the complaint and shall have authority to request the issuance of a search warrant or subpoena to inspect the files of the employer or prospective employer, if necessary. The Department shall attempt to resolve the complaint by conference, conciliation, or persuasion. If the complaint is not so resolved and the Department finds the employer or prospective employer has violated the Act, the Department may commence an action in the circuit court to enforce the provisions of this Act including an action to compel compliance. The circuit court for the county in which the complainant resides or in which the complainant is employed shall have jurisdiction in such actions.

(c) If an employer or prospective employer violates this Act, an employee or applicant for employment may commence an action in the circuit court to enforce the provisions of this Act, including actions to compel compliance, where efforts to resolve the employee's or applicant for employment's complaint concerning the violation by conference, conciliation or persuasion under subsection (b) have failed and the Department has not commenced an action in circuit court to redress the violation. The circuit court for the county in which the complainant resides or in which the complainant is employed shall have jurisdiction in such actions.

(d) Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award an employee or applicant for employment prevailing in an action under this Act the following damages:

  • (1) Actual damages plus costs.
  • (2) For a willful and knowing violation of this Act, $200 plus costs, reasonable attorney's fees, and actual damages.
  • (3) For a willful and knowing violation of Section 12(c) or Section 12(c-2) of this Act, $500 per affected employee plus costs, reasonable attorneys’ fees, and actual damages.

(e) Any employer or prospective employer or his agent who violates the provisions of this Act is guilty of a petty offense.

(f) Any employer or prospective employer, or the officer or agent of any employer or prospective employer, who discharges or in any other manner discriminates against any employee or applicant for employment because that employee or applicant for employment has made a complaint to his employer, or to the Director or his authorized representative, or because that employee or applicant for employment has caused to be instituted or is about to cause to be instituted any proceeding under or related to this Act, or because that employee or applicant for employment has testified or is about to testify in an investigation or proceeding under this Act, is guilty of a petty offense.

(Source: P.A. 96-623, eff. 1-1-10.)

 

(820 ILCS 55/20) (from Ch. 48, par. 2870)

Sec. 20. Dismissal of complaint. The Director or any court of competent jurisdiction shall summarily dismiss any complaint alleging a violation of this Act which states as the sole cause of the complaint that the employer offered a health, disability, or life insurance policy that makes a distinction between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products.

(Source: P.A. 87-807.)


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