HB3763 103RD GENERAL ASSEMBLY

LRB103 30532 DTM 56965 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3763

Introduced 2/17/2023, by Rep. Will Guzzardi

SYNOPSIS AS INTRODUCED:

820 ILCS 40/2	from Ch. 48, par. 2002
820 ILCS 40/3	from Ch. 48, par. 2003
820 ILCS 40/9	from Ch. 48, par. 2009
820 ILCS 40/12	from Ch. 48, par. 2012
820 ILCS 40/5 rep.

Amends the Personnel Record Review Act. Provides for specific documents that every employee has a legal right to inspect and copy. Provides that an employer shall not include the imputed costs of time spent duplicating the information, purchasing or renting a copying machine, purchasing or renting computer equipment, or purchasing, renting, or licensing software in a fee for providing a copy of the documents. Provides that an employee may bring an action in circuit court regardless of whether that employee has filed a complaint concerning the same violation with the Department of Labor. Authorizes an employee to file a complaint with the Department regardless of whether the employee pursued or is pursuing an action for the same violation in circuit court. Repeals provisions concerning personnel record inspections by representatives of the employee.

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Personnel Record Review Act is amended by changing Sections 2, 3, 9, and 12 as follows:

(820 ILCS 40/2) (from Ch. 48, par. 2002)

Sec. 2. Open Records.

(a) Every employee has a legal right under this Act to inspect, copy, and receive copies of the following documents: employer shall, upon an employee's request which the employer may require be in writing on a form supplied by the employer, permit the employee to inspect

(1) any personnel documents which are, have been or are intended to be used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, benefits, perquisites, discharge, or other disciplinary action, except as provided in Section 10;

(2) any contracts or agreements that the employee signed or that the employer maintains the manifested intent of the employee to be bound or that the employer maintains are legally binding on the employee;

(3) job descriptions for any position held by the employee or any position for which the employee applied;

(4) any employee handbooks that the employer made available to the employee or that the employee acknowledged recovery;

(5) any employer policies or procedures that the employer contends the employee was subject to and that concern qualifications for employment, promotion, transfer, compensation, benefits, perquisites, discharge, or other disciplinary action;

(6) press releases, announcements, internet postings, or social-media posts about or concerning the employee; and

(7) reports by or concerning the employee alleging harassment or discrimination related to a protected class as defined by the Illinois Human Rights Act; retaliation under State, federal, or local law; failure to pay wages or other compensation under the Illinois Wage Payment and Collection Act; ethical violations; any code of conduct violation; any violation of the rules or standards of any professional organization, self-regulatory organization, accrediting organization, or certifying organization; and any violation of any federal, State, local, or foreign law, ordinance, rule, or regulation.

The inspection right encompasses personnel documents in the possession of a person, corporation, partnership, or other association having a contractual agreement with the employer to keep or supply a personnel record. An employee does not have a legal right under this Act to the documents categorized may request all or any part of his or her records, except as provided in Section 10.

(b) The employer shall, upon an employee's request, grant at least 2 inspection requests by an employee in a calendar year to inspect, copy, and receive copies of records to which that employee has a legal right under this Act. Requests must be when requests are made at reasonable intervals, unless otherwise provided in a collective bargaining agreement. The employer may require the request to be in writing. Electronic communications such as email and text messages suffice as written requests under this subsection. The written request need only apprise a reasonable employer that the employee is requesting some or all of the employee's records. The employee may specify in the employee's request if the employee is requesting to inspect, to copy, or to receive copies of the records. The employee may request that copies be provided in hardcopy or in a reasonable and commercially available electronic format. The employee may request that the inspection, copying, or receipt of copies be performed by that employee's representative, including, but not limited to, family members, clergy, accountants, lawyers, union stewards, other union officials, translators, representatives of workers' centers, or members of the press. The employer shall comply with the employee's request provide the employee with the inspection opportunity within 7 working days after the employee makes the request or if the employer can reasonably show that such deadline cannot be met, the employer shall have an additional 7 days to comply. Any in-person The inspection shall take place at a location reasonably near the employee's place of employment and during normal working hours. The employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place would be more convenient for the employee. Nothing in this Act shall be construed as a requirement that an employee be permitted to remove any part of such personnel records or any part of such records from the place on the employer's premises where it is made available for inspection. Each employer shall retain the right to protect his records from loss, damage, or alteration to insure the integrity of the records. If an employee demonstrates that he or she is unable to review his or her personnel record at the employing unit, the employer shall, upon the employee's written request, mail a copy of the requested record to the employee.

(Source: P.A. 83-1362.)

(820 ILCS 40/3) (from Ch. 48, par. 2003)

Sec. 3. Copies. After the review time provided in Section 2, an employee may obtain a copy of the information or part of the information contained in the employee's personnel record. An employer may charge a fee for providing a copy of the such information requested by the employee. The fee shall be limited to the actual cost of duplicating the information and shall not include the imputed costs of time spent duplicating the information, purchasing or renting a copying machine, purchasing or renting computer equipment, or purchasing, renting, or licensing software.

(Source: P.A. 83-1104.)

(820 ILCS 40/9) (from Ch. 48, par. 2009)

Sec. 9. An employer shall not gather or keep a record of an employee's associations, political activities, publications, communications or nonemployment activities, unless the employee submits the information in writing or gives authorizes the employer express, written consent when the employer keeps or gathers in writing to keep or gather the information. This prohibition shall not apply to (i) activities or associations with individuals or groups involved in the physical, sexual, or other exploitation of a minor or (ii) the activities that occur on the employer's premises or during the employee's working hours with that employer which interfere with the performance of the employee's duties or the duties of other employees or activities, regardless of when and where occurring, which constitute criminal conduct or may reasonably be expected to harm the employer's property, operations or business, or could by the employee's action cause the employer financial liability. A record which is kept by the employer as permitted under this Section shall be part of the personnel record.

(Source: P.A. 101-531, eff. 8-23-19.)

(820 ILCS 40/12) (from Ch. 48, par. 2012)

Sec. 12. Administration and enforcement of Act.

(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 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, 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 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, in which the complainant is employed, or in which the personnel record is maintained shall have jurisdiction in such actions.

(c) If an employer violates this Act, an employee 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 complaint concerning such violation by conference, conciliation or persuasion pursuant to subsection (b) have failed and the Department has not commenced an action in circuit court to redress such violation. The circuit court for the county in which the complainant resides, in which the complainant is employed, or in which the personnel record is maintained shall have jurisdiction in such actions. An employee may bring an action in circuit court regardless of whether that employee has filed a complaint concerning the same violation with the Department and an employee may file a complaint with the Department regardless of whether the employee pursued or is pursuing an action for the same violation in circuit court.

(d) Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award an employee prevailing in an action pursuant to 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.

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

(3) Reasonable attorney's fees and costs.

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

(Source: P.A. 84-525.)

(820 ILCS 40/5 rep.)

Section 10. The Personnel Record Review Act is amended by repealing Section 5.