The #MeToo Impact in Illinois
By Karuna S. Brunk
The #MeToo Movement has gained traction in Illinois. Employers should take proactive steps to comply with the law and protect their businesses. There are far too many legal changes to detail every single one here, but we aim to give you a glimpse into some of the most relevant and impactful changes.
A. The Workplace Transparency Act
On August 9, 2019, Governor Pritzker signed the comprehensive Workplace Transparency Act (WTA), with an effective date of January 1, 2020. The WTA, as its name implies, is aimed at creating a more open and transparent workplace to encourage the disclosure of illegal harassment, discrimination, and retaliation. Among the many aspects of the WTA, it creates new limitations on employment contracts, including confidentiality agreements and non-disclosure agreements. Specifically, these limitations impact contractual agreements that employers frequently present to employees at the beginning of an employment relationship.
Under Section 1-25 of the WTA, a clause in an employment contract would be considered void if it “has the purpose or effect of preventing an employee or prospective employee from making truthful statements or disclosures about alleged unlawful employment practices” or if the clause “requires the employee or prospective employee to waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit related to an unlawful employment practice to which the employee would otherwise be entitled under any provision of state or federal law.” “Unlawful employment practice” includes discrimination, harassment, or retaliation. The WTA is written so broadly that a variety of common restrictive covenant language can and will be impacted by it, including arbitration agreements – a common tool in many employment agreements. There are certain exceptions within the WTA to these broad prohibitions based on employee specific assent to the contract language.
Section 1-30 of the WTA also imposes new restrictions on settlement and separation agreements. Similar to the prohibitions on restrictive covenants, the WTA prohibits an employer from including language in a settlement or separation agreement that would prevent an individual from making “truthful statements or disclosures regarding unlawful employment practices” – once again, this refers to harassment, discrimination, and retaliation.
Further, the WTA voids contracts that restrict an employee, prospective employee, or former employee from reporting allegations of unlawful conduct to federal, state, or local officials for investigation. This includes criminal conduct and unlawful employment practices – harassment, discrimination, and retaliation. Section 1-40 of the WTA also prohibits employment agreements that would restrict employees from testifying in an administrative, legislative, or judicial proceeding concerning criminal conduct or conduct amounting to harassment, discrimination, or retaliation. To an extent, employers could utilize boilerplate language in employment agreements to address these issues, but it is unclear whether courts will opt to simply enforce contracts with such boilerplate language.
B. Other Changes to the Illinois Human Rights Act
The Illinois Human Rights Act (IHRA) is the state law that prohibits discrimination, harassment, and retaliation by employers in the State of Illinois. This law is administered by the Illinois Department of Human Rights (IDHR) – the state counterpart to the Equal Employment Opportunity Commission. Several employee-friendly changes to the IHRA are on their way:
1. The IHRA will cover independent contractors, subcontractors, vendors, and consultants – previously only employees were protected by the IHRA.
2. The IHRA will cover employers with one or more employees – previously, following the guidance of federal law, the IHRA defined “covered employer” as an entity with 15 or more employees.
3. Following other states, including New York, pursuant to the WTA, Illinois will require all employers, regardless of their size or type, to provide sexual harassment training to all employees on an annual basis. The IHDR will list the requirements of such sexual harassment training protocols.
C. Equal Pay Requirements
Governor Pritzker also signed into law a prohibition on employers asking job applicants or their previous employers about salary and wage history. This new legislation is in an effort to narrow the wage gap between men and women.
D. Employer Takeaways
This article outlines the “tip of the iceberg” on the changes to Illinois law. It does not, in any way, provide a comprehensive overview of the changes. At the outset, employers should be prepared to take the following proactive measures to comply with the changes to the laws:
1. Thoroughly review and revise form employment agreements and existing employment agreements that may be modified or extended after the WTA goes into effect on January 1, 2020, including restrictive covenants, confidentiality agreements, arbitration clauses, and non-disclosure agreements – once again, the language of the WTA is extremely broad and will impact virtually every employment contract;
2. Review and revise employment policies and procedures, including employee handbooks – small businesses, in particular, may want to put in place harassment and discrimination policies to proactively comply with the requirements of the IHRA;
3. Introduce management training on the new Illinois legal requirements, including a review of the new equal pay law;
4. Take all complaints of harassment, discrimination, or retaliation seriously, including conducting thorough investigations and documenting all allegations and witness statements;
5. Continue to document any and all employee conduct and performance issues as a proactive measure against charges of discrimination under the IHRA; and
6. Institute sexual harassment training for employees and management – generally, we know that Illinois is following the State of New York in its requirements for mandatory sexual harassment trainings. As such, we have an understanding of what the IDHR will require in sexual harassment trainings.
Reach out to a qualified and experienced employment lawyer at Di Monte & Lizak for further information regarding the changes to Illinois law and for counsel on how best to protect your business – we strive to be your partner as you navigate current employment laws.
*Articles distributed by Di Monte & Lizak, LLC are advertisements and summaries for general information purposes only. They are not full analyses of the matters presented, legal or otherwise, and may not be relied upon as legal advice.