We have alerted clients to the many changes the Illinois Legislature has made to employment law in the past year. While the pandemic has left many uncertain about the future, savvy business owners can use this time to evaluate whether or not they are compliant with new legislation and act accordingly.
Most importantly, the legislature has mandated annual discrimination and harassment training encompassing all forms of harassment and unlawful discrimination. Our firm can provide this training for you, which must be completed by December 31, 2020. Given the current environment, we can provide that training via Zoom.
Because of the legalization of cannabis in Illinois, we are also amending employers’ policies relating to drug testing.
Discrimination claims have been expanded to include discrimination based upon perceived status, i.e. what the person making the remark believe the other person’s status to be. This change has also led us to tweak employee policies.
Below, we break down each major piece of legislation passed by the Illinois Legislature and the key points you need to know. As always, please email Tom Gardiner at firstname.lastname@example.org or call us at (312) 362-0000 if you have any questions.
SB75: The Workplace Transparency Act
Limits contracts imposed as condition of employment
Such agreements are considered void if they prevent employee from making truthful statements about alleged unlawful employment practices or waive/arbitrate/otherwise diminish claims/rights/benefits regarding unlawful employment practices
Agreements otherwise void are valid if: 1) in writing; 2) demonstrates bargained-for consideration; and 3) acknowledges employee’s right to report/make truthful statements/participate in proceedings/seek or obtain legal advice
Annual Sexual Harassment Training
Applies to all employers
Must include: explanation of harassment; examples; summary of laws, remedies, and employer’s responsibility to prevent, investigate, and correct harassment
Has additional requirements for restaurants, bars, hotels, and casinos
Restricts settlement/termination agreements
May only include confidentiality related to unlawful employment practices if: is employee’s stated preference; is mutually beneficial; has written notice of right to counsel/review agreement before execution; confidentiality has bargained-for consideration; does not waive later-accruing claims; written notice of 21-days to consider; 7-day revocation period after execution, unless waived
May not unilaterally include clause prohibiting disclosure of unlawful employment practice
Restricts confidentiality provisions that limit disclosures of separation/settlement agreement
Cannot contract to prohibit, prevent, or otherwise restrict reporting of unlawful employment practices/testifying/etc.
Act does not restrict confidentiality provisions for people who receive or investigate complaints or privileged information
Applies to contracts “entered into, modified, or extended” on or after January 1, 2020—recommend not adjusting existing agreements
Only applies to final and non-appealable judgments and rulings starting July 1, 2020
Must disclose the following to the Illinois Department of Human Rights (IDHR): total number of adverse judgments/admin rulings during previous calendar year; if equitable relief granted; breakdown of judgments and rulings by protected category
Up to five-years of data may be requested only if IDHR investigating charge of discrimination against the employer
Limited to acts either in the workplace or by employees/executive
IDHR may not rely on settlement agreement to support a substantial evidence finding
Must not use victim’s name and information; this is exempt from FOIA
Public employers/lobbyists must provide expanded annual discrimination and harassment training encompassing all forms of harassment and unlawful discrimination
Also provides public employees with clearer statement of rights
Sexual Harassment Victim Representation Act
Meant to eliminate potential conflict of interest between victim and accused for union stewards; union must assign different reps for each
Illinois Human Rights Act
Expands protected classes to include: individual’s “actual or perceived” race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, and unfavorable military discharge.
Harassment definition now includes “unwelcome conduct on the basis of an individual’s actual or perceived [protected status] that has the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
Employer responsible for nonmanagerial and nonsupervisory employees’ conduct only if employer becomes aware of the conduct and fails to take reasonable corrective measures
Protections extend to nonemployees in the workplace
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