Illinois Department of Labor Issues Emergency Rules Under VESSA

Effective December 29, 2003, the Illinois Department of Labor adopted emergency rules establishing procedures for the administration and enforcement of the recently-enacted Illinois Victims' Economic Security and Safety Act, or "VESSA." Following a 45-day notice and comment period, the emergency rules become permanent.

VESSA Overview

Enacted on August 25, 2003, VESSA provides up to 12 weeks of unpaid leave in any 12-month period to a qualified employee (of a defined employer) who is a victim of domestic or sexual violence, or who has a family or household member who is a victim of such violence, to address issues arising from such violence. The law prohibits employers, including persons with more than 50 employees, the State of Illinois and any unit of local government and school districts from discharging, harassing or otherwise discriminating against any qualified employee. VESSA also requires employers to provide reasonable accommodations to affected employees.

Eligible employees must be provided leave, which may be on an intermittent basis or on a reduced work schedule, to enable them, their families or household members to: (1) seek medical attention for or recover from physical or psychological injuries caused by domestic or sexual violence; (2) obtain services from a victim's services organization; (3) obtain psychological or other counseling; (4) participate in safety planning, temporary or permanent relocation, or take other actions to increase their physical safety or economic security; or (5) seek legal assistance or remedies to ensure their health and safety.

VESSA does not provide additional time if the leave is also covered by the Family and Medical Leave Act.

The employer may require the employee to provide certification of the need for leave, including the employee's sworn statement ("within a reasonable period"); and, "upon obtaining such information," documentation from a victim's services organization, member of the clergy or medical professional from whom the employee or family or household member has sought assistance; a police report or court record; or "other corroborating evidence."

The IDOL is authorized to administer and enforce VESSA. Complaints may be filed with the IDOL within three years of any suspected violation. If an administrative hearing establishes a violation of VESSA, the employee could be awarded back pay and benefits, compensatory damages, equitable relief such as hiring or reinstatement, and attorneys' fees.

The Emergency Rules

The Emergency Rules provide little substantive interpretive guidance and are mainly procedural.

The Rules do clarify, however, that the certification an employer may request from an employee must contain both: (1) a sworn statement of the employee; and (2) other corroborating evidence, including without limitation, police or court records, or a statement from a victims services organization, a member of the clergy or a medical professional. Emergency Rule 280.110. The statute itself appeared to leave open the possibility that the second, "corroborating" component need not be supplied if it were never "obtained." P.A. 93-0591, Section 20(c)(2).

The Rules also make clear that VESSA only applies to conduct occurring on and after its effective date, August 25, 2003. Emergency Rule 280.400(a). Thus, although the statute permits aggrieved employees to file complaints with the IDOL within three years of an alleged violation, the Rules expressly provide that the IDOL may only review facts going back as far as August 2003.

Most of the Emergency Rules establish procedures for the filing and investigation of employee complaints. Complaints are to be made on forms supplied by the IDOL and filed by mail or personal delivery with the IDOL's Chicago office. Emergency Rule 280.210.

The IDOL has the power to conciliate, investigate and issue determinations with respect to alleged VESSA violations. See Emergency Rules 280.200 – 280.410. Initially, the IDOL may determine whether the allegations state a claim under VESSA or if it has jurisdiction under VESSA and, if not, deny the complaint. Emergency Rule 280.310. If jurisdiction exists and a claim is stated, the IDOL serves notice of the complaint by mail upon the respondent employer, which must file a written response within 21 days. [1] Emergency Rule 280.310(d). The employer's response is then forwarded to the complainant employee, who must submit a rebuttal within 21 days. Id. A party's failure to provide a response or rebuttal may result in a finding of a failure to cooperate or, in the case of the employee, a final order denying the complaint. Id.

The IDOL then proceeds to investigate the complaint, which may include witness interviews and in-person or telephone conferences. Emergency Rule 280.400. At the conclusion of the investigation, the IDOL investigator must make one of three findings: (1) that there is a probable VESSA violation; (2) that there is no probable VESSA violation; or (3) that one or both parties has failed to cooperate in the investigation and recommending any appropriate sanction. Emergency Rule 280.410(a). If the IDOL determines a violation occurred, it may either seek a consent order abating the unlawful practice and providing appropriate relief to the complainant or refer the matter for a formal administrative hearing under the IDOL's Rules of Procedure in Administrative Hearings, 56 Ill. Adm. Code 120. Emergency Rule 280.410(a)(1). If the IDOL determines no probable violation, the matter is also referred for an administrative hearing. Emergency Rule 280.410(b).

Administrative hearings are to be conducted pursuant to the Illinois Administrative Procedure Act, before administrative law judges. Emergency Rules 280.410(b), 500; 56 Ill. Adm. Code 120. In general, the Administrative Procedure Act permits written discovery and depositions for good cause shown, the issuance of subpoenas to compel the attendance of witnesses, and sets forth the procedure for public hearings. Other non-addressed discovery, evidentiary and procedural issues are determined by the Illinois Supreme Court Rules and the Illinois Code of Civil Procedure.

The Emergency Rules also impose recordkeeping requirements for employers. Those records, which are required to be maintained for at least three years, include:

  • basic employee identifying information, terms of compensation, daily and weekly hours worked and total compensation;
  • dates VESSA leave taken (and if less than a full day is taken, the time of day and number of hours taken);
  • copies of any written employee requests for leave and any written notices to the employee regarding VESSA;
  • documents describing policies and practices for paid and unpaid leave, and vacation, sick, personal or other paid time off, and accurate records of time earned and taken each year; and
  • records of any dispute with the employee regarding VESSA leave. Emergency Rule 280.140.

The Rules underscore that records relating to VESSA leave must be maintained in accordance with all applicable state and federal confidentiality requirements, including VESSA's own provisions regarding confidentiality of certification information. Emergency Rule 280.140(d); P.A. 93-0591, section 20(e)(2)(D).

[1] The Rules specifically require copies of any statutory, regulatory or case law authority cited in the employer's response to be attached. Emergency Rule 280.310(d).