PUBLICATIONS

This Alert reviews changes imposed by Illinois’ New Workplace Transparency Act and Key Changes to:

• Illinois Human Rights Act
• Victims Economic Security and Safety Act
• Illinois Equal Pay Act
• Hotel and Casino Employee Safety Act

On August 9, 2019, Illinois Governor J.B. Pritzker enacted sweeping changes to the landscape of employment law in Illinois. See Public Act 101-0221, http://www.ilga.gov/legislation/publicacts/101/101-0221.htm. Among other changes, the amendments create the Workplace Transparency Act (WTA), which limits employers’ abilities to restrict certain employee rights with regard to allegations of unlawful conduct. The amendments also significantly modify the Illinois Human Rights Act (IHRA) and the Illinois Victims Economic Security and Safety Act (VESSA). The provisions of the amendments discussed below will go into effect on January 1, 2020. Finally, in a separate action, the Governor also amended the Illinois Equal Pay Act, with important changes effective on September 29, 2019. Due to the extensive nature of these changes, we have prepared a detailed review of the key provisions with recommendations on how employers should prepare to deal with the changes in a separate document, which can be accessed here. Below is a brief summary of the changes that are discussed in the separate article.

Workplace Transparency Act (WTA)

The WTA, effective January 1, 2020:

• Prohibits employers from preventing employees or prospective employees from making truthful statements or disclosures about alleged unlawful employment practices or criminal activity.
• Prohibits employers from requiring employees to waive, arbitrate or diminish an existing or future claim related to an unlawful employment practice.
• Does NOT prohibit employers and employees from bargaining for certain waivers if the agreement is in writing and contains various disclaimers.
• Prohibits unilateral confidentiality agreements in settlement or termination agreements, but does NOT prohibit mutual confidentiality agreements IF:
  • If confidentiality is the documented preference of and mutually beneficial to both parties;
  • The employee is notified of his or her right to have an attorney review the agreement;
  • The employee is given 21 days to consider the agreement with a seven- day revocation period;
  • The waiver is knowing and voluntary;
  • There is valid, bargained-for consideration in exchange for the confidentiality; and
  • The agreement does not require the employee to waive claims of unlawful employment practices that accrue after the date of execution of the settlement or termination agreement.

Illinois Human Rights Act

• Definition of “Employer” - While not a part of PA 101-0221, in a separate bill, which passed both houses on June 27, 2019 and is awaiting Governor Pritzker’s signature, House Bill 0252 would expand the definition of “employer” to include any entity that employs one or more persons (instead of the current 15 employee requirement for most protected categories). The new definition will take effect July 1, 2020, if the Governor signs the bill.
• Expanded Definition of “Unlawful Discrimination” – The amendments expand the definition of “unlawful discrimination to include discrimination against a person because of his or her “actual or perceived” race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from the military (previously, the concept of “perceived” discrimination only applied in the disability and sexual orientation contexts).
• New Definition of “Harassment” – “Harassment” is now defined as “unwelcome conduct” on the basis of a person’s “actual or perceived” race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from the military, that “has purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” “Working environment” is not limited to a physical location an employee is assigned to perform his or her duties and can thus occur outside the office.
• Harassment of Non-Employees - The IHRA now prohibits harassment (including sexual harassment) by an employer against non-employees, including contractors, consultants, and anyone else “directly performing services for the employer pursuant to a contract with that employer.”
• Employer Disclosure Requirements – Under the new law, beginning July 1, 2020, employers will be required to disclose on an annual basis (every July 1) to the Illinois Department of Human Rights (IDHR) any adverse judgement or administrative ruling against them in the preceding calendar year. The employer may be required to disclose information on settlements of any sexual harassment or unlawful discrimination claims, but only if the IDHR is investigating a charge filed under the IHRA and makes the request.
• Sexual Harassment Prevention Training – Every employer “with employees working in” Illinois will need to provide sexual harassment prevention training on an annual basis. The law directs the IDHR to establish a model training program that will be made available to employers and the public online at no cost. Employers will be able to use the model program or create its own program that, at minimum, complies with the model program.
• Sexual Harassment Prevention for Restaurants and Bars – The amendments impose additional sexual harassment prevention requirements on restaurants and bars. “Restaurant” includes, but is not limited to, coffee shops, cafeterias, and catering facilities. Restaurants and bars will be required to provide a written sexual harassment policy to all employees within the first calendar week of the employee’s employment. (The IDHR will also be required to develop a supplemental model training program specific to restaurants and bars.)

Victims’ Economic Security and Safety Act (VESSA)

• The new law has added a category of protection under VESSA (which allows unpaid protected leave to certain employees) and now includes victims of “gender violence,” in addition to the existing categories for victims of domestic violence, sexual assault, and stalking.

Hotel and Casino Employee Safety Act

• This new law requires hotels and casinos to equip employees who work alone in guest rooms, restrooms or casino floors, with a safety or notification device that will summon help if the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault, or other emergency is occurring in the employee’s presence.
• Each hotel and casino employer is also required to develop, maintain, and comply with a written anti-sexual harassment policy that contains certain details specified in the law.

IL Equal Pay Act

On July 31, 2019, Governor Pritzker signed into law Public Act 101-0177, which goes into effect on September 29, 2019. Key changes include the following:

• Compensation Inquiries - Employers and employment agencies are prohibited from requesting or requiring applicants to disclose prior wage, salary, benefit or other compensation history as a condition of an application process or of employment.
  • Employers may not refuse to hire an applicant or take adverse action against an employee for refusing to comply with any wage or salary history inquiry.
  • Employers MAY ask an applicant for his or her expectations with respect to wages and benefits.
• Discussion of Wages – Employers may not prohibit employees from discussing their wages, salary, benefits or other compensation with others (except that employers may still prohibit human resources employees, supervisors, and other employees who have access to wage or salary information from disclosing that information without the written consent of the employee whose information is sought or requested).
• Expanded Definition of Comparators - The IEPA has a new standard for comparator consideration that expands protection for employees. The IEPA will allow employees to look at jobs the performance of which requires “substantially similar” skill, effort, and responsibility, instead of “equal” skill, effort, and responsibility found in the previous version.
• Damages - Damages under the IEPA now include actual damages incurred, special damages up to $10,000, injunctive relief as may be appropriate, possibly punitive and compensatory damages, and costs and reasonable attorneys’ fees as necessary to make the employee whole. (Prior damages included only lost wages and attorneys’ fees and costs.)

Employers given a break on certain proposed changes

Importantly, although these changes are broad and employee-friendly, they could have been much worse for employers. The original proposal for the Workplace Transparency Act (WTA) was found in SB1829 and would have been broader in several key areas. Instead, the WTA was incorporated into SB0075 (which started out as the Hotel and Casino Employee Safety Act) in House Floor Amendment No. 1, but without several employee-friendly provisions.

First, the original WTA would have prohibited unilateral non-disparagement agreements, but the prohibition was left out of the final version. Second, the original version would have required employers to report all settlements of sexual harassment and other discrimination claims on an annual basis (in addition to the requirement to report adverse judgments and administrative rulings). The final version only requires disclosure of settlements to the IDHR when requested during an investigation of a charge of discrimination. Third, the original version of the changes to the IHRA would have included “vendors” and “subcontractors” in its definition of non-employees who are protected from sexual harassment and other discrimination. Finally, the original law would have changed VESSA to include “sexual harassment” as one of the categories for which employees would be entitled to take protected leave. The final version only added the category of “gender violence,” which is not significantly different from the existing categories.

These amendments are discussed in more detail here . If you have any questions regarding the impact of the newly enacted laws, please contact the author of this Alert, Kimberly Ross, kross@fordharrison.com, partner in our Chicago office. Of course, you may also contact the FordHarrison attorney with whom you usually work. 

Kimberly and Karen Milner, partner in our St. Louis office, will conduct a complimentary webinar discussing the new laws on September 11, 2019. Click here to register for the webinar.