Public Act 101-0221 is an important piece of legislation that set to make major changes to Illinois employment law next year. Some of the key provisions involve the creation of the Workplace Transparency Act (which effects all sorts of employment agreements such as non-competes, confidentiality provisions, and settlements) and the Hotel and Casino Employee Safety Act, and amendments to the Illinois Human Rights Act. The majority of these changes go into effect immediately at the start of the new year on January 1, 2020, but some of them are not effective until July.
HOW WILL THE NEW ILLINOIS LAWS AFFECT YOUR BUSINESS?
The Workplace Transparency Act (WTA)
If you haven’t heard about the WTA yet, now is the time to sit down and grapple with it because it will undoubtedly affect several of the contracts you have with your employees. The WTA governs contracts regarding conditions of continued employment as well as settlement and termination agreements.
Agreements with your current employees that are unilateral cannot have the purpose or effect of preventing any current or prospective employee from making truthful statements about alleged unlawful employment practices. Nor can such agreements require them to waive, arbitrate or diminish any claims or benefits they are entitled to as a result of an unlawful employment practice. What this means for your business is that any contracts you require your employees to sign without consideration (like employee handbooks or confidentiality agreements) cannot (1) prevent them from making truthful statements alleging that your business did something illegal or (2) make them give up any claims or benefits they are entitled to under law from that illegal activity.
Agreements that are mutual conditions of employment – meaning consideration is present – can include provisions that would otherwise be prohibited because of the above rules, if certain conditions are met:
- The agreement is in writing
- It demonstrates actual, knowing, and bargained-for consideration from both parties
- It acknowledges the employee/prospective employee’s right to report good faith allegations of unlawful employment practices or criminal activity, participate in a related proceeding, make truthful statements required by law, and request/receive legal advice
THE “WTA” AFFECTS CONFIDENTIALITY AGREEMENTS AND CLAUSES
The WTA also has a provision specifically related to termination and settlement agreements. Employers are prohibited from unilaterally prohibiting any prospective, current, or former employee from truthfully talking about unlawful employment practices. For termination and settlement agreements, employers can require confidentiality related to alleged unlawful employment practices, but only if the agreements meet the following conditions:
- Confidentiality is the documented preference of the employee and is beneficial to both parties
- The employer notifies the employee in writing of his/her right to have an attorney or representative review the agreement before execution
- There is valid, bargained for consideration in exchange for the confidentiality
- The agreement does not waive any future claims of unlawful employment practices that arise after the date of execution of the agreement
- The agreement is provided in writing to the parties and the employee is given 21 days to consider it before executing the document
Unless waived, the employee has 7 days to revoke, and the agreement is not effective or enforceable until the end of that period.
Employee handbooks, confidentiality agreements, NDAs, arbitration agreements, employment contracts, termination letters, settlement agreements – any contract between you and your employees that limits their ability to talk about the workplace or diminishes any claim they have under law regarding unlawful employment practices should be reviewed immediately. Not only will invalid provisions be considered void in court if an employee ever sues you, but you will also be liable for attorney’s fees and costs if the employee prevails.
The Illinois Human Rights Act (IHRA)
The IHRA is another massive piece of legislation that employers need to be aware of, and recent amendments to it will undoubtedly affect small business owners.
SMALL BUSINESSES WILL NOW BE LIABLE FOR EMPLOYMENT DISCRIMINATION
Starting January 1, 2020, all employers with at least one or more employees will be liable for employment discrimination under the IHRA. Prior to this amendment, employers with less than 15 employees only had to worry about sexual harassment and pregnancy and disability discrimination. Now, those same employers will be prohibited from discriminating on the basis of race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, military status, sexual orientation, and/or unfavorable discharge from military service.
Also, the IHRA now defines that discrimination and harassment occur on the basis of actual or perceived protected class status, so if an employer discriminates against an employee on the basis of something like race, it is irrelevant whether the employer was factually correct about that employee’s race.
The IHRA now defines harassment as being unwelcome conduct on the basis of a protected class status when the conduct substantially interferes with the employee’s work performance or creates a hostile working environment. It also clarifies that the working environment is not limited to the physical location wherein the employee works.
YOU MAY ALSO BE LIABLE FOR HARASSMENT OF NON-EMPLOYEES
In addition, non-employees in the workplace can now sue employers for harassment and sexual harassment. These would be people that work for an employer pursuant to a contract, such as consultants and contractors. Employers will be liable for harassment of non-employees by non-managerial/non-supervisory employees if the employer was aware of the harassment and failed to take corrective measures.
SEXUAL HARASSMENT TRAINING IS NOW MANDATORY FOR ALL EMPLOYERS
Employers are also required to provide employees with sexual harassment prevention training annually. Employers can use the model training provided by the State, or implement their own training program that satisfies specific criteria. Bars and restaurants will also have to provide their employees with a written sexual harassment policy within their first week of employment. And starting July 1, 2020, employers who have adverse judgments or administrative rulings against them from the preceding year must disclose statistical information about those judgments and rulings, such as how many there were total, and how many were related to sexual harassment, discrimination, or harassment on the basis of each of the protected classes. Employers might also have to disclose the number of settlements entered into that relate to those same categories. Failure to comply with training and reporting mandates will result in civil penalties, ranging from $500 to $5,000.
Hotel and Casino Employee Safety Act (HCESA)
The HCESA is a new act that goes into effect July 1, 2020. It mandates that hotel and casino employers provide employees with panic buttons when they are scheduled to work alone in places like hotel rooms or on the casino floor. Employers may not retaliate against an employee for using the panic button, either, or otherwise making a report or complaint under the HCESA. The Act also requires employers to provide employees with a written sexual harassment policy in English, Spanish, and any other language spoken predominantly by employees.
The Victim’s Economic Security and Safety Act (VESSA)
Prior to the amendment, employees could take extended leave under VESSA for reasons related to domestic or sexual violence and stalking. Now, the scope of VESSA has expanded to include leave taken due to gender violence, as well. VESSA defines gender violence as being (1) violence or aggression based on someone’s actual or perceived gender that constitutes a crime, (2) coercive physical intrusion/invasion of a sexual nature that constitutes a crime, or (3) the threat of either 1 or 2.
As you can see, the employment law landscape in Illinois is about to undergo a major change. We strongly encourage you to contact us before these new laws roll out in January so that all of your employment contracts and policies remain up-to-date and in compliance with current law.
Should you have questions regarding recent updates to Illinois employment law or other legal needs for your business or would like to schedule a no-charge initial consultation to discuss questions you have about your business, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.
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