The Illinois legislature recently passed Senate Bill 0075 – a sweeping piece of legislation expected to significantly alter the employment landscape for Illinois employers in 2020. This massive bill, over 195 pages in length, creates the Illinois Workplace Transparency Act aimed at protecting both public and private sector employees from unlawful discrimination and harassment in the workplace. The bill was sent to Governor J.B. Pritzker on June 10, 2019, for his approval/signature. If the Governor signs the bill into law, the Illinois Workplace Transparency Act becomes effective on January 1, 2020.
This article highlights some of the new obligations for employers under the Illinois Workplace Transparency Act.
New Restrictions/Limitations on Contracts with Employees
The Illinois Workplace Transparency Act (the “Act”) imposes new restrictions on contracts with employees that are entered into, extended, or modified on or after January 1, 2020. 2019 IL S.B. 75. Some examples of these new restrictions include:
- Employment contracts cannot contain non-disclosure or non-disparagement clauses covering any form of unlawful discrimination or harassment.
- Separation or settlement agreements cannot include non-disclosure or non-disparagement clauses covering claims of unlawful discrimination or harassment unless certain requirements are met.
- Mandatory arbitration clauses in employment contracts must exclude discrimination and harassment claims.
The Act’s restrictions on contract terms are comprehensive and complex. This article highlights some of the general changes that employers need to make to their contracts under the Act; however, it does not cover all of the changes that need to be implemented.
New Reporting Requirements for Employers
Beginning July 1, 2020, the Act requires private and public sector employers to annually disclose to the Illinois Department of Human Rights (the “Department”) any adverse judgment or administrative ruling against the employer related to unlawful discrimination or harassment. 775 ILCS 5/2-108(B) (NEW). These annual disclosures must be reported to the Department no later than July 1st of each year. 775 ILCS 5/2-108(B)(NEW). This information is not subject to disclosure under the Illinois Freedom of Information Act.
Beginning July 1, 2020, if an employer is currently under investigation by the Department for alleged discrimination or sexual harassment, then the employer, at the request of the Department, must disclose the number of settlements from the preceding years related to allegations of unlawful discrimination or harassment. 775 ILCS 5/2-108(C) (NEW). This information is not subject to disclosure under the Illinois Freedom of Information Act.
Adoption of Sexual Harassment Prevention Training Program
Except for employers subject to Section 5-10.5 of Illinois State Officials and Employees Ethics Act, the Act requires employers to adopt a model sexual harassment prevention training program offered to employees at least once a year. 775 ILCS 5/2-109(C) (NEW). The purpose of this new mandate is to ensure that “workplaces are safe for employees to report concerns about sexual harassment without fear of retaliation, loss of status, or loss of promotional opportunities.” 775 ILCS 5/2-109(A)(NEW). The Department will publish a model sexual harassment prevention training program for employers to use in order to satisfy this new requirement. 775 ILCS 5/2-109(A)(NEW). Employers are also given the option to implement their own sexual harassment prevention training program so long as the program equals or exceeds the Act’s minimum requirements by including the following: 1) an explanation of sexual harassment consistent with this Act; (2) examples of conduct that constitutes unlawful sexual harassment; (3) a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and (4) a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment. 775 ILCS 5/2-109(B)(NEW).
Employers, including municipalities, special districts and other governmental units, have a lot of work ahead of them if the Governor signs the Illinois Workplace Transparency Act into law. Therefore, employers should begin reviewing their current employment policies and contracts and familiarize themselves with the requirements of the Act, so that they have ample time to implement the Act’s changes if need be. If you have any questions about complying with the new obligations under the Act, please contact your Tressler attorney.