New Workplace Law in Illinois, Increased Obligations for Employers

Effective January 1, 2020, employers in Illinois will have new obligations and restrictions regarding their employee agreements under the Workplace Transparency Act (“WTA” or the “Act”). The WTA defines “unlawful employment practices” as acts of discrimination, harassment and retaliation.

New Limits On Employment Agreements, Including Separation Agreements

• Prohibits employment agreements – including separation agreements – that contain confidentiality clauses preventing an employee from reporting truthful information to federal, state, or local authorities about alleged criminal conduct or an unlawful employment practice.
• Prohibits employment agreements that require an employee to waive, arbitrate, or diminish an existing or future claim related to an unlawful employment practice.
• Does NOT prohibit employers from entering into a MUTUAL confidentiality agreement IF:
  • the agreement is in writing;
  • there is actual consideration; and
  • the agreement states the employee’s right to report, make truthful statements, and participate in any proceeding about alleged criminal conduct or unlawful employment practices.
• Does NOT prohibit employers from including confidentiality clauses in separation agreements IF:
  • confidentiality is the documented preference of both employer and employee;
  • the employee has the right to have an attorney review the agreement before signing;
  • there is valid, bargained-for consideration in exchange for the confidentiality;
  • the employee has 21 days to review the agreement;
  • the employee has 7 days after signing to revoke the agreement; and
  • the waiver only applies to claims that accrued before the agreement is signed.
• Allows an employee to seek attorney’s fees and costs if the employee successfully challenges an agreement that violates the WTA.
• Does NOT prohibit employers from requiring confidentiality from employees or third parties who receive or investigate complaints of alleged unlawful employment practices, have access to confidential personnel information, or receive privileged communications.

Additionally, the WTA:

• Requires a past, current or prospective employee to testify in response to a court order, subpoena, or written request from an administrative agency or the legislature, even if the employee has waived his or her right to do so in an employment or separation agreement.
• Prohibits employers from unilaterally requiring arbitration of any claim arising under any law that is enforced by the Equal Employment Opportunity Commission (“EEOC”), including any claim of a violation of the WTA, that is, the arbitration of discrimination and harassment claims.

What Do Employers Need To Do To Comply With the WTA?

• Immediately review and modify employment agreements and separation agreements.
• Contact an attorney at Boodell & Domanskis, LLC to assist your company in reviewing and updating your employment agreements.
• Read our second blog that covers other requirements of the WTA.