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EMPLOYMENT LAW DEVELOPMENTS

By: Margherita Albarello

Illinois Workplace Transparency Act, pending Senate Bill 30

This pending bill provides that employers of any size shall not require a current or prospective employee to sign a “nondisclosure agreement” that (1) limits the person’s right to disclose sexual harassment or any other form of workplace discrimination; or (2) forces the person to arbitrate such claims. The bill also provides that agreements containing such provisions that were entered into before the effective date of the Act are voidable. The backlash against mandatory arbitration and non-disparagement clauses stems from the social changes occurring through the #MeToo movement and other private and public initiatives regarding sexual assault and sexual harassment in the workplace.

Illinois Biometric Information Privacy Act (BIPA) – No actual harm required

Businesses use biometric identifiers like finger, hand, or facial scanning to track employee work time and customer sales transactions. Since 2017, over 100 class actions have been filed claiming that these employees and consumers are “aggrieved” under BIPA because they did not receive advance written notice and agree in writing to the scanning. In defense, businesses submitted that a person is “aggrieved” and may seek liquidated damages and other relief only if he suffered some actual injury apart from the technical violation of BIPA itself. Conflicting Illinois appellate court decisions on the statute’s definition of “aggrieved” followed, and in May 2018, the Illinois Supreme Court took the issue on appeal. On January 25, 2019, the Court unanimously ruled in Rosenbach v. Six Flags Entertainment Corp., that, a person need not suffer actual injury or adverse effect to bring a BIPA action.

Margherita Albarello can be reached at malbarello@dimontelaw.com.

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