Working drafts

Labor and employment experts break down three bills that could change how Illinois works

Labor and employment experts break down three bills that could change how Illinois works
April 2017
By Lauren P. Duncan
Chicago Lawyer correspondent

After labor and employment attorneys adapt to freshly minted laws enacted at the beginning of the year, they only get a short breather before lawmakers introduce a new smattering of proposals aimed at reshaping Illinois’ labor laws.

While political chess in Springfield makes for unpredictable outcomes, supporters of some of this year’s proposed changes, which range from paid sick leave to pro athlete injury claims, say if the measures don’t pass this session, they’re bound to resurface in years to come.

Paid family leave

The Family Leave Insurance Act, sponsored by Illinois Sen. Daniel Biss, D-Evanston, would create a special state fund that employees would be required to pay into that would allow both men and women to take up to 12 weeks during any two-year period to provide care for the birth or adoption of a child or care for a seriously ill family member.

The bill is similar to House Bill 2376, proposed by Rep. Mary Flowers, D-Chicago.

Biss’ proposal — Senate Bill 1721 — would require employers deduct 0.3 percent of employees’ wages to go toward a state benefits fund. Eligible employees would be able to be compensated for two-thirds of his or her average weekly wage, up to a certain cap, during their leave. The measure includes certain exceptions, including that many of a company’s top 10 percent of earners wouldn’t be entitled to the benefits.

This would cost Illinois workers an average of about $35 a year, Biss estimates.

Biss proposed a similar measure last session. It died in committee. He said he proposed it again because he thinks it addresses an important issue involving workers’ quality of life.

“For years and years people have accepted that this is the way things have to be, people have accepted that if you’re a low-wage worker who can’t afford to take an unpaid leave. A week after your child’s born you go back to work, but it doesn’t have to be that way,” he said. “It’s not that way in lots of countries and it’s not that way now in certain states either, and it doesn’t have to be that way in Illinois.”

The Illinois Chamber of Commerce opposes Biss’ bill on the grounds that it only affects Illinois employers.

“We are opposed to this legislation,” Tyler Diers, director of legislative relations for the Illinois Chamber of Commerce said in an e-mailed statement. “If there is to be a law, we prefer federal legislation that applies to employers equally across the country and does not create another issue putting Illinois at a competitive disadvantage.”

Bridget C. Duignan, a personal injury attorney with Latherow and Duignan, has been working with Biss to draft and promote the proposal. She said New York recently passed paid family leave and the state is working to implement the program beginning next year. California has offered a paid family leave program since 2004.

Duignan said one message she tries to get across when speaking about the bill is the idea that employers can benefit from such a measure through reduced turnover in staff. She said it’s also aimed at addressing the lack of a safeguard for firing women who go on maternity leave.

Issues Duignan has heard about the measure include how small businesses can afford to find temporary help for a time period as long as 12 weeks, which she said is a legitimate concern, as well as what would happen in the event there was a deficit in the fund. She said she’s also talked to insurance company representatives who have expressed interest in the private sector managing the fund so that it wouldn’t be subject to governmental “sweeps” wherein lawmakers dip into special funds to cover other costs.

“That’s a problem, and then the question becomes who do you trust to manage money: the state or insurance companies?” she said.

While the bill is subject to some revision, Duignan said this spring her top task has been “just getting people comfortable with the concept.”

“Women and men are obviously going to have families regardless of their employment, and so it becomes an issue as to if they are going to be paid and to what extent, and whether they can return to their jobs … because right now there are no protections in place,” she said. “This is essentially right to work here.”

Workers' comp for pro athletes

Senate Bill 12, sponsored by Senator Minority Leader Christine Radogno, R-Lemont, proposes several changes to the Illinois Workers’ Compensation Act, including one that quickly caught the attention of unions that represent professional athletes in Illinois.

That provision would cut off athletes’ wage differential benefits on their 36th birthday, unless they are able to prove they could have played beyond that age. Under current law, the state’s major- and minor-league athletes are able to seek the benefits up until age 67, the same as the rest of Illinois workers.

Athletes’ unions have said it would essentially separate workers in an injury-prone industry from the rest of Illinois’ working population. NFL Players Association head DeMaurice Smith went so far as to say he would try to dissuade free agents from joining the Bears if the bill passes.

“This is, to me, an act of greed in a sense,” said Sen. Napoleon Harris, D-Harvey, a former NFL linebacker who played for the Oakland Raiders, Minnesota Vikings and Kansas City Chiefs. “I think it unfairly limits the ability of any professional athlete in the state of Illinois to receive the same workers’ comps benefits as every other citizen in Illinois and to be honest there’s really no reason to treat professional athletes differently from employees at other jobs.”

Some team attorneys have argued that the age change is fair because players don’t generally play beyond age 35.

“The big issue is getting out the assumption that you could play until age 67. That’s ridiculous,” White Sox Senior Executive Vice President and licensed attorney Howard Pizer said. “That’s what it’s about. The plaintiffs’ lawyers have tried to portray it differently and the NFL players’ union tried to portray it differently … but what they’re saying is simply not true.”

The wage differential allows an employees to receive 66 percent of the difference between the amount of money they were making before an injury and what they make in their new job, post-injury. The state caps the amount Illinoisans can receive in weekly wage differential benefits at just over $1,000 a week or about $55,000 a year.

The White Sox, Bears, Bulls, Cubs and Blackhawks together signed a letter supporting the bill.

The Chicago Fire wasn’t among the teams that formally supported the legislation, but the team’s counsel, James C. Vlahakis, a partner at Hinshaw & Culbertson, said the change could affect players with the Major League Soccer team who seek benefits.

The MLS players’ union, like the NFL union, has said it would tell players not to go to Chicago if the bill becomes law. Vlahakis called it a “hollow threat” since the league only allows a small minority of players to choose the team they’ll play for.

“It’s a fallacy for the Major League Soccer’s union leader to suggest that players shouldn’t choose to go there. Many players don’t have the right,” he said.

The teams argue that Illinois’ wage differentials should be adjusted to fall in line with laws in some other states that reflect that professional athletes retire from sports at a much younger age than the average worker in other careers.

The teams emphasized in their letter that the proposal wouldn’t affect players’ abilities to seek compensation for permanent and partial disabilities or medical benefits.

Pizer, however, emphasized the teams’ findings that Illinois is one of the more “generous” states when it comes to wage differentials. In its letter, the teams cited Florida, Texas and Missouri as states that have special provisions for professional athletes’ workers’ compensation claims and Michigan restricts them from collecting any wage differential benefits at all.

The way the law is currently framed, athletes from other states are also able to “forum shop” in Illinois, where a player from another state who is injured in Illinois can seek claims here. That means a player who never lived or worked beyond playing games in Illinois could potentially tap into the benefits for decades after an injury.

An additional issue the teams see as a problem with Illinois’ current setup is that “the total and average workers’ comp payout in Illinois far exceeds the amount in any other state,” the letter states.

“We feel it’s kind of a common sense change that we, if passed, would still treat Illinois athletes better than most of the country,” Pizer said.

Vlahakis questions why 35 was chosen as the cutoff age, as soccer players have been known to play past that age.

“Because [some players] are getting paid a tremendous amount of money for a short playing career, I see the argument in support of this because the average Joe steelworker who may be working until they’re 45, 50 who gets injured is probably more deserving of getting what their salary is because they could have worked longer,” he said.

Vlahakis said he can also see the argument that players who put their bodies on the line for a team’s profit are entitled to the benefits.

“It’s a hot-button issue that’s singling out professional athletes who are making a ton of money for their clubs and their owners,” he said.

Harris questioned the proposal’s inclusion as a part of the larger “grand bargain” designed to bust Springfield’s budget deadlock.

“This would just impact a small group of individual businesses, which happens to be wealthy professional football teams, and to me that’s just not right,” Harris said.

The proposal came not long after the U.S. Supreme Court left in place a settlement in December that will require the NFL to payout an estimated $1 billion to thousands of former player who have been diagnosed with brain-related diseases that could have resulted from concussions.

While there’s not a direct link between the proposal of limiting wage differentials and the issue of concussions in football, Harris said he thinks this could be one step teams are taking to try to protect themselves further in the case of injured players.

“They don’t want to be on the hook for more monetary payouts in the future through workers’ comp,” he said.

Although the measure faced significant opposition this session, Patty Schuh, a spokeswoman for the Illinois Senate Republicans, said it “remains a work in progress” and is a part of the larger piece of legislation that proposes retooling other parts of Illinois’ workers’ compensation laws.

“The components of this legislation was brought to Senator Radogno and to the body — the Senate as a whole has been discussing all of these various issues — by the professional sports teams that employ a great number of people in Illinois and bring a lot to the Illinois economy,” Schuh said. “They’re asking as an employer for a review of the component that most affects them on workers’ compensation and they’ve also indicated that there are athletes, or their attorneys, more likely, that have been venue shopping, and because they play in Soldier Field once a year they want to file in Illinois.”

Statewide paid sick leave

Despite its lack of passage in the past, Sen. Toi Hutchinson, D-Olympia Fields, said she will keep proposing an act that would mandate employers to offer seven paid sick days per year to all full-time and part-time employees until she sees it pass.

Hutchinson, who is also the director of community relations and social responsibility at Chapman and Cutler, has proposed the measure in the past unsuccessfully, but she’s hopeful this year’s proposal, Senate Bill 1296, called the Healthy Workplace Act, will gain more traction.

According to the act, more than 40 percent of Illinoisans working in the private sector have “no right to a paid sick day.”

Hutchinson said her measure, if passed, would prevent those employees from coming in to work sick, reducing the spread of disease.

She acknowledged that there are many hurdles in proposing a mandate that would impact a significant number of people and employers, but Hutchinson said her reasoning for continually pushing for the measure is that the United States falls behind other counties when it comes to quality of life benefits for workers.

Those it would largely benefit, Hutchinson said, are people who work multiple jobs to “cobble together enough income.”

“For that group of people, it’s significant when you’re making a choice about whether or not you can keep your job or if you can take care of yourself or your children or your parents,” she said. “It’s a ripple effect in the family.”

The act would require employers to provide employees with the sick days to be used for either their own illnesses or caring for a family member, attending a medical appointment, caring for a child due to a public health emergency, or if he or she or a family member is the victim of domestic violence.

Employees would accrue one hour of paid sick time for every 30 hours worked at the maximum of 56 hours of paid sick time a year.

One of the bill’s opponents is the Illinois Retail Merchants Association. The group, citing a Institute for Women’s Policy Research study of California communities with sick leave acts, estimates the mandate would cost Illinois’ employers between $208 million and $589 million annually.

“We’ve not seen any benefits that are outweighing the cost of these labor mandates that are coming to bear,” said Tanya Triche Dawood, vice president and general counsel at IRMA.

Employers, she said, would cover those costs by cutting hours or benefits elsewhere, Triche Dawood said.

However, the California study IRMA cited to obtain the employer cost figures praised the sick leave mandates it studied, reporting “Health care costs for employers and the public should have declined both because sick individuals and their children could get low-cost preventive care, and by reducing the spread of contagious illnesses in workplaces and schools.”

One concern of IRMA’s is that an Illinois-wide mandate could drive employers, particularly ones already leery of investing in a state going on two years without a budget, across state borders.

“When you look at other countries that have paid sick leave laws, they are done at their equivalent of the federal level. They’re not done city by city, county by county, state by state,” Triche Dawood said.

Hutchinson said she’s working to address concerns she’s heard about technical aspects, such as whether it could reduce the sick time of employees who already have access to it. Another issue involves how it would play out in Cook County and Chicago, which both enacted their own sick leave ordinances last year.

If it doesn’t pass this year, Hutchinson said, citizens can expect her to propose it again in the future.