The Illinois Workplace Transparency Act (the Act), which passed the Illinois legislature in May and is effective January 1, 2020, amends the Illinois Human Rights Act in numerous ways with the goal of strengthening employee protections against workplace harassment. The Act includes, among other things, the following key features:
- It limits the ability of employers to require employees to keep the circumstances of any workplace harassment issue confidential as part of a settlement or separation agreement. Although the Act does not interfere with the ability of employers to require confidentiality with respect to the amount of a settlement (or the amount of a severance package to a terminated employee), the Act prohibits confidentiality of the facts surrounding workplace harassment allegations except where the employee has agreed to such confidentiality after being provided 21 days to consider it and seven days to revoke the agreement.
- The Act prohibits any employment contracts or policies that restrain employees from reporting unlawful conduct (such as workplace harassment) to federal, state, or local officials.
It requires all employers in the state to conduct annual harassment training for all employees. The training must meet specific requirements promulgated by the Illinois Department of Human Rights. Those requirements are expected to be issued late this year.
- The Act expands the coverage of the Illinois Human Rights Act to all employers in the state with one or more employees. Previously, most aspects of the Human Rights Act applied only to employers with 15 or more employees.
- The new Act expands the protections of the Illinois Human Rights Act to independent contractors. An independent contractor who experiences harassment while performing work now can bring a harassment claim against the entity that contracted with him or her.
- The Act limits the ability of employers to insist upon arbitration of harassment claims, except where the employee’s agreement to arbitrate meets certain specific criteria set forth in the Act. Notably, the Act does not impact arbitration under a collective bargaining agreement. Employers should note that the Act’s restrictions on arbitration may be preempted by the Federal Arbitration Act, which prohibits states from enforcing laws that treat arbitration agreements differently than other contracts.