Nov 19, 2019

Mandatory high impact changes to Illinois employment law

August 9, 2019, Illinois  Gov. J. B. Pritzker signed SB 75 which enacted the Workplace Transparency Act and amended nine Illinois statutes to make monumental changes to employment practices in Illinois. Most of the changes take effect Jan. 1, 2020. Employers with employees working in Illinois need to take action now to ensure that they are ready to comply with the new requirements.

To aid your business’ compliance, below is a high-level summary of the new law and the amendments to other laws.  
Workplace Transparency Act 
The Workplace Transparency Act (Act) was passed to “secure individuals’ freedom from unlawful discrimination and harassment in the workplace.” This new law does not apply to collective bargaining agreements. “Unlawful employment practice” is defined as any form of unlawful discrimination, harassment or retaliation that is presently actionable under the Illinois Human Rights Act, Title VII of the Civil Rights Act or any other related state or federal rule or law that is enforced by the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. 

Key provisions include:

● Employers may not restrict their employees, prospective employees and former employees (employees) by contract or policy from reporting any allegations of unlawful conduct to federal, state or local officials for investigation.

● Along the same lines, employers may not require their employees to waive, arbitrate or otherwise diminish any existing or future claims of unlawful employment practice except in writing and then only after providing bargained for consideration. Even in that situation, employees must be permitted to make truthful statements or disclosures required by law; to request or receive confidential legal advice; be permitted to make good faith, truthful reporting to appropriate federal, state or local government agencies enforcing discrimination laws; to report to government officials; and to participate in administrative and legal proceedings.

● Confidentiality provisions will be restricted in settlement and termination agreements. They will be permitted only when they are the documented preference of the employees and if confidentiality is mutually beneficial to both parties. Similar to provisions for age claims under the Age Discrimination in Employment Act and the Older Workers Benefit Protective Act, employers will be required to notify their employees of their right to have an attorney or representative review the agreement. The employees must receive valid, bargained for consideration in exchange for the confidentiality restrictions and the employees must be given 21 days to review the agreement and seven days to revoke their acceptance. Further, the confidentiality provisions cannot prohibit employees from testifying in administrative, legislative or judicial proceedings concerning alleged criminal conduct or alleged unlawful employment parties when the employee is subject to a court order, subpoena or written request from an administrative agency or the legislature.

● Notwithstanding the above changes, employers will be permitted to allow certain employees or individuals to maintain confidentiality of allegations of unlawful employment practices made by others (e.g., their human resources personnel, investigators and attorneys). 

● Adding teeth to the new law, the legislature includes a fee shifting provision that allows employees to recover their attorneys’ fees and costs when challenging a contract in violation of the Act.  

Illinois Human Rights Act (IHRA) (effective Jan. 1, 2020)
The amendments to the IHRA have brought about many of the changes in current practice. They include:  

● At a fundamental level, the protected categories of individuals who may not be discriminated against or harassed were enlarged to include those who are perceived to fall within the category as well as those that actually are in the category (e.g., perceived to be female and actually female).  

● In addition, the Act clarified the definition of an employee’s working environment to explain that it is expressly not limited to the physical location where the employee is assigned to perform duties.

● The legislature expressly incorporates the affirmative defense that allows employers to avoid strict liability for the discriminatory or harassing actions of their non-management and nonsupervisory employees where the employers failed to take corrective actions because they were unaware of the harassment or discrimination.

● The IHRA will be expanded to protect non-employee contractors and consultants from harassment when they directly perform services for the employer pursuant to a contract.  

● Starting on July 1, 2020, employers will be required to self-report the total number of adverse judgments or administrative rulings of sexual harassment or unlawful discrimination. The definition of “employer” for the disclosure requirement includes any person employing one or more employees within the state.

● Starting on July 1, 2020, if the Illinois Department of Human Rights requests this information, employers will be required to disclose for the prior five-year period all settlements involving sexual harassment or unlawful discrimination claims (but employers are not to disclose the names of the complaining individuals).

● Another key change is the requirement that all employers (even those with only one employee in Illinois) must annually provide mandatory sexual harassment prevention training. Employees may use their own programming but the Department of Human Rights will provide sample programming at no cost to employers.

● The legislature added civil penalties for failing to report adverse judgments and administrative rulings of sexual harassment or unlawful discrimination and for failing to provide mandatory training. For small employers with less than four employees, the fines start at $500 for a first offense and goes up to $3,000 for a third offense. For larger employees, the
fines start at $1,000 for a first offense and go to $5,000 for a third offense.

Special required training and policy requirements for restaurants and bars (effective Jan. 1, 2020)
Restaurants and bars will also be required to provide written sexual harassment policies to all their employees within the first week of their employment and are required to have special sexual harassment prevention training. The Department of Human Rights is developing programming for these employees, which will be made available at no cost.

Uniform Arbitration Act (effective Jan. 1, 2020)
This amendment provides that a written agreement to submit a dispute to arbitration is valid, except upon such grounds as exist for the revocation of any contract, including failure to comply with the Workplace Transparency Act.

Victims’ Economic Security and Safety Act (VESSA) (effective Jan. 1, 2020)
VESSA is amended to protect victims of gender violence in the same way it protects victims of sexual and domestic violence.

Sexual Harassment Victim Representation Act
 (effective Jan. 1, 2020)
Under this provision, the same union representative cannot represent both the victim and the alleged perpetrator in the same hearing. Dual representation is prohibited (which seems pretty self-evident).

Hotel and Casino Employee Safety Act 
(effective July 1, 2020)
This change seeks to protect employees assigned to work in guest rooms, restrooms or the casino floor from sexual assault or harassment by guests. Hotels and casinos will be required to equip their employees with a safety or notification device to allow them to summon help if needed. Hotels and casinos also will be required to develop policies to protect their employees from sexual assault and harassment by guests.

Freedom of Information Act (FOIA)
 (effective Jan. 1, 2020)
The amendment exempts from FOIA request the data employers now will be required to report regarding adverse judgments or administrative rulings of sexual harassment and unlawful discrimination.

Department of Professional Law of the Civil Administrative Act
 (effective Jan. 1, 2020)
This amendment authorizes the Department of Professional Regulation of the Department of Financial and Professional Regulation to exchange information with the Department of Human Rights regarding civil rights violations concerning a licensee or candidate for licensure.  

Lobbyist Registration Act
 (effective Jan. 1, 2020)
By this amendment, lobbyists will be required to complete sexual harassment prevention training.

Illinois Governmental Ethics Act 
(effective since August 9, 2019)
This amendment requires harassment and discrimination prevention training. It also expands the rights of complaining parties. Finally, it requires enhanced disclosure of economic interests to the Secretary of State and country clerks with the information to be compiled and made available for public inspection.

What should employers do?
Based on the large number of amendments and obligations imposed by the new law, employers are strongly encouraged to review carefully their existing employment handbooks, policies and agreements to ensure that they comply with Illinois’ new legal requirements. Also, employers should take special care to ensure that all settlements and severance agreements after Jan. 1, 2020, satisfy the new requirements regarding confidentiality, arbitration and the 21-day review and seven-day revocation periods.

As of the publication of this article, the Illinois Department of Human Rights still has not provided its model sexual harassment prevention training for employers, restaurants and bars in Illinois. Employers are wise to keep checking as the model programs will be provided free of charge and are expected to include all the required components.  

For more assistance or for answers to questions triggered by the new legal requirements, contact one of Chuhak & Tecson’s Employment attorneys.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by:
Jeralyn H. Baran, Principal