New Laws for 2022

Our legislature was extraordinarily busy this year, passing all sort of new laws that will likely have an impact on your business and personal life.  So, let’s take a look at some of those new laws that will become effective in 2022.

Restrictive Covenants.  A new amendment to the Illinois Freedom to Work Act will affect all employers and employees who execute non-competes or non-solicits in 2022. First, employers may not require that employees earning less than $75,000 per year execute non-competes.  Second, employers cannot require employees earning less than $45,000 a year to execute non-solicit agreements.  The thresholds for non-competes increase every five years by $5,000 until hitting $90,000 in 2037.  For non-solicits the thresholds increase by $2,500 every five years until hitting $52,500 in 2037.  The definition of earnings include what you might expect: salary, commissions, bonuses and any other compensation reported on a W-2.

Employers must now also advise employees to consult with an attorney before signing either kind of agreement, and employees must be given at least fourteen days to review and decide whether to sign.  The employee, of course, may opt to sign within that fourteen-day period.

Employers who let employees go due to Covid or circumstances similar to Covid may not require that employees sign either such agreement unless enforcement of the restrictive covenants includes paying the employee’s base salary during the enforcement period, less compensation earned through other employment during the enforcement period.

Finally, the Act codified some existing case law about consideration and the definition of legitimate business interests.  Restrictive covenants are enforceable only when the employee has two years of continuous employment or when separate and adequate consideration is paid.  Unfortunately, like the court cases, what this consists of was not specifically defined.  As to legitimate business interests, the amendment codified existing case law that they are to be defined under the “totality of the circumstances” test.

All employers should review their existing agreements to make sure they are compliant.  Importantly, however, note that the amendment does not apply retroactively.

Covid.  Although not currently effective until June 1, 2022, the Illinois Health Care Right of Conscience Act was amended to exclude Covid from its coverage.  And, although I don’t have a crystal ball, it seems likely that after the first of the year (when fewer votes are required to have the changes become effective immediately), that June date will be substantially advanced.  So things will be a bit muddled for a bit as to whether employees can opt out of Covid vaccine requirements under the Act.

HR/Benefits.  There were quite a few new laws in this area, including:

• Employers can no longer ask applicants about salary history.Discussion of an applicant’s expectations for the position sought are fair game.

• Employers relying solely on AI to decide who gets an in-person interview must gather and report to the State data about race and ethnicity for those who are/are not interviewed and for those who are/are not hired.

• Restaurant and truck-stop employees must undergo training to recognize human trafficking and standard to report any such observed activity.

• Discrimination based on disability now includes discrimination because of a person’s association with a person with a disability.

• Victims and family members of victims of violent crimes are entitled to unpaid leave.Victims of violent crime cannot be barred from receiving voluntary leave benefits.

Home Based Food Operators.  Currently, cottage food operators can only sell their products at farmer’s markets.  Thanks to amendments to the Home-to-Market Act, operators can sell directly (from their location, at community events, or online) directly to customers.  For those thinking about selling from “home,” keep in mind that you still have to observe all zoning laws and ordinances.

Miscellaneous.

• Public high schools must now teach a unit on “media literacy” that includes instruction on how to evaluate the truthfulness of on-line information, how media can trigger behavior, and about social responsibility.The State Board of Education is charged with developing the curriculum.

• Thanks to Hayli’s law, neither IDPH nor any local health department may regulate the sale of lemonade or non-alcoholic drinks by a person under 16.

• Public corporations will be required to report the self-identified sex and gender of its board of directors to the State.

• Students applying to Illinois public colleges will no longer be required to submit SAT or ACT scores as part of their applications.

• Students at both private and public schools will now be allowed, at their own expense, to modify athletic uniforms to conform to modesty, religion, or cultural preferences.

• Speed limit zones around schools will now begin at 6:30 am instead of 7:00 am.

This article is for informational and educational purposes only and does not constitute legal advice.