This Week in Springfield – 100-13

COMPENSATION HISTORY
PROMPT PAYMENT
CARRYOUT BAG FEES
CATFISH
FOOD HANDLING

This Week In Springfield negotiations in the Senate over a “grand bargain” continued while non-budget proposals continued to be debated.

COMPENSATION HISTORY

 

The Senate Labor Committee passed HB 2462 (Rep. Anna Moeller, D-Elgin/Sen. Daniel Biss, D-Skokie) by a partisan vote of 10-5 that would prohibit a business from viewing, asking about or requesting the previous salary, wage, benefits or other compensation of any applicant for employment.  This is intended to address the concern that gender discrimination is continuously perpetuated by businesses based on salary history. The initiative was drafted and introduced by Women Employed and the Sargent Shriver National Center on Poverty Law.  The Illinois Department of Labor demonstrated that while unequal pay claims do occur they are not as prevalent as the proponents claim.  The proponents blame the lack of claims on current business “loopholes” in the current unequal pay statute. These “loopholes” are completely non-discriminatory factors in determining possible reasonable differences in wages such as merit or seniority that are used and shared in every state.  In order to address these alleged loopholes, the legislation includes a vague two prong ‘differential’ test and alternative employment practice standard—meaning if an employee can show an alternative practice exits anywhere in the United States for a similar job an employer may not use factors such as seniority or merit system to apply a wage offer defense. These are only a few of the many issues presented in the legislation.

HB 2094 (Rep. Norine Hammod, R-Macomb) and SB 1039 (Sen. Mike Connelly, R-Naperville) are supported by the business community and prohibits an employer from asking about previous wage and salary, unless the salary is public knowledge, the prospective employee is a current employee of the hiring employer, and the prospective employee voluntary provides his/her salary. The legislation also incentives employers to review all of their hiring practices and make reasonable progress towards eliminating pay differentials. Despite addressing the core concern of the proponents of HB 2462 and including reasonable exceptions and incentivizing elimination pay differentials, both HB 2094 and SB 1039 have been disregarded.

Regardless, there are some outstanding legal questions regarding the issues surrounding prohibiting an employer from asking a prospective employee about previous wage and salary.  The City of Philadelphia passed an ordinance with similar language that prohibits an employer from asking a prospective employee about their previous wage and salary. Subsequent to passage, a lawsuit was filed in federal court on the grounds that the ordinance violates the First Amendment and the Commerce Clause of the United States Constitution.  If adopted, the Illinois statue would face the same deficiencies.  The statute prohibits a business from asking a simple question which in of itself does not discriminate or harm an individual so would not rise to the time, place, manner analysis which must be content-neutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication.  Additionally, the statute impacts commerce that takes place outside of Illinois boundaries. For instance, if a Missouri resident is interviewed in Missouri for a job in Illinois, does the statue apply? Or vice-versa, if an Illinois resident is interviewed in Illinois for a job in Missouri does the statute apply? If the answer is yes, then the statute arguably attempts to control activity outside of Illinois’ border and is subject to a federal Commerce Clause analysis. Additionally, this week the 9th U.S. Circuit Court of Appeals in California cited a 1982 ruling by the court that said employers could use previous salary information as long as they applied it reasonably and had a business policy that justified it.

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PROMPT PAYMENT

Ideally, entities providing services to the state (e.g. Medicaid providers, medical providers serving state employees under the state health insurance program, etc.) would be paid in 30-days or less. It is not unreasonable for a vendor to be paid promptly for the services they render. As this is written, the State of Illinois owes its vendors nearly $13 billion and that total is growing at over $8,000 per minute.

When the State of Illinois fails to pay its vendors ‘promptly’ (i.e. within 90-days), the state begins to incur interest at the rate of 1% per month or 12% a year if debt reaches that maturity. The State Prompt Payment Act is designed to ensure the state’s vendors are not abused. The Act is supposed to provide a serious financial incentive to the state to be a good partner.

SB 2202 (Sen. Dan McConchie, R-Lake Zurich) proposes to reduce the current prompt payment interest by two-thirds. While it would not take effect until July 1, 2018, it would have the perverse effect of encouraging the state to abuse their vendors through non-payment and encourage additional fiscal mismanagement.

IRMA testified in opposition to the proposal which was narrowly held in the Senate Executive Committee.

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CARRYOUT BAG FEES

About 5 years ago, after months of discussions with the sponsor, Senator Terry Link (D-Gurnee) and the environmental community, IRMA and our industry partners agreed to support a bill that would have implemented a statewide plastic bags recycling mandate.  The bill would have required the plastic bag manufacturers to develop a recycling program throughout the most populous areas of the state that would have afforded customers easily accessible ways to recycle plastic carryout bags as well as plastic wrap instead of throwing these items into landfills or allowing them to become a nuisance.  The bill was passed by both chambers, but was vetoed by then Governor Pat Quinn.  At the time, the Governor, encouraged by a 10 year old student from the northern suburbs of Chicago, argued that the recycling mandate didn’t go far enough to address the waste and litter issue.  A later attempt to override the veto failed.

Last year, the parties were called together by the Senator Link to try again.  Considering the changing landscape of the price of oil, it was determined that a recycling mandate would be too expensive to run and would place an undue financial burden on the business community.  Moreover, the environmental community decided that plastic bag bans were actually not effective.  So, the business community placed another offer on the table.  This time, at the behest of the environmental community which was now in favor of fees for all non-reusable carryout bags,  business suggested that a fee be placed on plastic and paper bags with the fee split between the retailer and the local jurisdiction. The caveat was that the local jurisdiction would have to use their portion of the fee to support a household hazardous waste program (HHW).  The HHW would have a significant positive environmental impact in that it would allow communities to collect other hard to recycle products like latex paint, carpet and even mattresses.  The environmental community went silent on the proposal.

In the interim, the city of Chicago passed a 7-cent tax on all non-reusable bags which has now been in effect for almost 4 months.  Preliminary results from the tax have shown a significant reduction in the use of carryout bags by about 40%.  Now, Senator Link has asked the parties to talk again to see what can be agreed to this legislative session. After some brief discussion, he introduced SB 1597 Amendment #2 (Sen. Terry Link, D-Gurnee).  The bill creates a model ordinance that local jurisdictions can opt to adopt.  The ordinance would place a 5 cent fee on all non-reusable bags, prohibit local jurisdictions from further regulating auxiliary containers, allow a split of the fee with 3 cents going to the local jurisdiction to be used to fund the HHW and with 2 cents to go to the retailer.  It would not be a mandate as a local jurisdiction would have to pass an ordinance to adopt the fee, but it would create one standard way to address bags and other containers.  The environmental community testified against the measure as they like the concept but are concerned about the preemption on the further regulation of auxiliary containers.  Such a preemption can be found in a number of other states that have laws on bags.  The Senator agreed to keep working with both sides on an amendment to bring back to the committee for further consideration.

IRMA testified in support of the bill.  With the agreement to come to the committee with an additional amendment, the bill passed out of the Senate Environment and Conservation with a vote of 6-1-0.

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CATFISH

SB 312 Amendment #2 (Sen. Emil Jones, III, D-Chicago) will give the state Department of Public Health and local departments of public health the authority to check restaurant invoices to ensure that if catfish is featured on the restaurant’s menu, the restaurant can prove that it received catfish from a federally regulated processor or manufacturer.  The sponsor has concerns that catfish served in some fried fish restaurants and soul food restaurants around the state are selling Vietnamese catfish, which must be labeled “Swai” according to federal law, but are labeling it “Catfish” on the restaurant menu.  If a consumer complaint is filed with the Department of Public Health, the inspector will check the invoices of the restaurant to see if it can prove that it indeed purchased catfish.  If proof can’t be produced, then the restaurant will be given time to correct the menu.  If the restaurant fails a second inspection, then a fine will be issued.  Further violations could result in suspension of the restaurant’s license.

Since it is already federal law to label catfish products correctly, IRMA was able to negotiate the details of the bill with Sen. Jones.  The bill passed out of the Senate Agriculture Committee with a vote of 10-0-0.  It will now move to the Senate floor for further consideration.

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FOOD HANDLING

 

HB 3684 (Rep. Kelly Burke, D-Oak Lawn/Sen. David Koehler, D-Peoria) removes an obsolete fee paid by restaurant and grocery retail workers. It passed the Senate Public Health Committee by a vote of 6-0.  Illinois is one of only a few states that require a separate food handling certificate and fee in addition to the national food handling certificate. Currently, under Illinois law, an individual must complete an Illinois Department of Public Health (IPDH) approved training program and then pass an exam provided by an accredited exam provider. Once the individual pays for and passes the exam and receives the national certificate, he/she is required to electronically send the national certificate to the state and pay an additional $35 for a redundant Illinois-specific certificate. When the Food Handling Regulation Enforcement Act was initially implemented, Illinois drafted, maintained, amended, mailed and graded their own examination. As such, an administrative justification existed for an additional fee. This Illinois specific exam no longer exists, therefore the administrative expenses no longer exist.

The legislation now moves to the Senate floor for consideration.

IRMA would like to thank Sen. David Koehler and all the members of the Senate Public Health for supporting this initiative.

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