Alerts

Nov 19, 2019

Mandatory high impact changes to Illinois employment law

● 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.  


● 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.