Public employers are subject to statutory requirements regarding employment which have been established by the legislature. This chapter highlights some of the laws regulating public employment but is not intended to be an exhaustive list of all legislative requirements for public employers in Illinois.
Wage and hour rules
Federal, state and local government employees are covered by the Fair Labor Standards Act (FLSA) and must be paid at least the applicable minimum wage for all hours worked. Illinois’ minimum wage of $11.00 per hour is higher than the federal minimum wage and is effective January 1, 2021.
The FLSA divides all employees into two categories, exempt and nonexempt. An exempt employee is classified as such if the employee’s job duties are exempt from the overtime provisions of the FLSA, such as executive, professional or administrative positions and the employee is paid on a salaried or fee basis. A nonexempt employee is eligible for overtime pay at one and one-half times the employees’ regular rate of pay for all hours worked beyond 40 hours in a workweek. The FLSA regulations allow for work periods longer than one week and have higher thresholds than 40 hours for determining when overtime must be paid for law enforcement officers and firefighters.
State and local government employers may grant compensatory time (commonly referred to as “comp time") to nonexempt employees in lieu of immediate cash payment for overtime hours. An employee must receive one and one-half hours of compensatory time for each hour of overtime worked. There are limitations as to the formation of such an agreement and to the quantity of compensatory time-off that may be accrued. First, compensatory time may be provided pursuant to a collective bargaining agreement or an agreement or understanding between the employer and individual employee before the work is performed. The agreement does not have to be in writing however, a record of the agreement’s existence must be maintained by the employer. An employee’s decision to accept compensatory time-off in lieu of cash for overtime work must be made freely and without coercion or pressure.
Second, most public employees may not accrue more than 240 hours of compensatory time-off. However, an employee who accrues compensatory time-off because of work in one of the following areas may accrue up to 480 hours of compensatory time-off:
- public safety activity – generally refers to law enforcement officers and fire fighters
- emergency response activities – typically refers to the dispatch of emergency vehicles, rescue work and ambulance services
- seasonal activities – includes work during periods of increased demand, which are regular and recurring in nature.
An employee who accrues the maximum number of hours of compensatory time must be paid overtime compensation for additional overtime hours worked until the employee uses some compensatory time and reduces his or her compensatory time balance below the 240- or 480-hour maximum. If a state or local government fails to observe these limitations for compensatory time, it must pay overtime compensation to the employee at one and one-half times the employee’s regular rate of pay.
The employer must permit an employee who has accrued compensatory time to use the time within a reasonable period after the employee has requested to use it unless the use will unduly disrupt the operations of the government agency. Whether compensatory time is granted within a reasonable period of time will depend upon the government’s workload as well as the specific facts and circumstances of each case. The employer may refuse the employee’s request where it would place an unreasonable burden on the government’s ability to provide services of acceptable quality and quantity during the time requested. However, the employer cannot deny an employee’s request to use compensatory time merely because it is inconvenient.
Under the FLSA, public employers may also establish a “public accountability” policy. Such policies allow the public employer to make partial pay deductions from salaried employees if the employer provides some form of paid leave and the employee has exhausted leave, does not ask to use leave, or chooses leave without pay.
Required holidays to be observed each year
Illinois state law provides employees of state branches and agencies with the following list of paid holidays that must be observed every year.
- New Year’s Day
- Martin Luther King, Jr. Day
- Lincoln’s Birthday
- Washington’s Birthday (President’s Day)
- Memorial Day
- Independence Day
- Labor Day
- Columbus Day
- General Election Day
- Veterans’ Day
- Thanksgiving Day
- Friday after Thanksgiving
- Christmas Day
If any of these holidays falls on a Saturday, the preceding Friday must also be observed as a holiday. If any of these holidays falls on a Sunday, the following Monday must also be observed as a holiday.
Each full-time employee also is entitled to receive one paid personal holiday each year and part-time employees receive the same benefit calculated proportionately. Certain teaching and administrative positions are exempted from this benefit. Note that there are additional holidays, identified by state law, which are recognized by local municipalities each year.
There is no requirement for counties, municipal governments and other public employers to provide any particular list of paid holidays.
State, federal and local anti-discrimination laws
The State of Illinois, its agencies and officers are required to “ensure freedom from discrimination in employment” as provided in the Illinois Human Rights Act (IHRA). The IHRA prohibits discrimination against public employees on the basis of:
- national origin
- sexual harassment
- marital status
- order of protection status
- sexual orientation
- unfavorable military discharge
- arrest record
- citizenship status
- coercion/aiding and abetting (helping or forcing a person to commit unlawful discrimination).
The IHRA is patterned after and interpreted in the same manner as the federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).
Title VII of the Civil Rights Act (Title VII) prohibits discrimination on the basis of race, color, national origin, religion and sex (including pregnancy). This law is applicable to the State of Illinois and local public employers. The Equal Pay Act covers federal, state and local employers.
Title I of the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, and the Age Discrimination in Employment Act (ADEA), which prohibits discrimination on the basis of age, are applicable to the public employers. However, the U.S. Supreme Court has held that the Eleventh Amendment to the U.S. Constitution bars lawsuits in federal court by employees to recover money damages from the state (including state agencies and entities that function as an arm of the state) for violation of the ADA or ADEA. A state may still be sued by an employee for equitable relief (i.e., injunction, declaratory relief) under these laws. This ruling does not apply to counties, municipalities or other regional or local public entities.
State executive agencies and affirmative action
Each state executive agency is required to develop and implement an affirmative action plan with annual goals for increasing the percentage of women and minorities.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the federal law governing military leave for public and private employers. To the extent permitted by USERRA, Illinois courts may hear and decide cases involving the enforcement of all causes of action arising from the provisions of federal law regarding military leave and may award a remedy as provided in such laws.
Illinois National Guard
An employee of the state or of any county, school district, municipality or political subdivision who is a member of the Illinois State Militia or the National Guard is entitled to a leave of absence without loss of pay, time or efficiency rating on the days the employee is engaged in basic training, up to 60 days of special or advanced training and for any other training or duty required.