Several changes to Illinois laws went into effect on January 1, 2020. This legislation affected many different areas of the criminal justice system, including employment law. Employers are required to follow certain rules and uphold standards in order to maintain a good business standing. Companies are regulated by the Fair Labor Standards Act (FLSA), which was passed in 1938 to improve workplace conditions. Since that time, there has been a much greater focus on sexual harassment prevention in the workplace. Signed into law by Governor J.B. Pritzker in 2019, the Workplace Transparency Act (WTA) was enacted at the first of the year and is intended to prevent workplace discrimination and harassment while providing greater protections for Illinois employees. Depending on the circumstances, some employers may need to revise certain policies, training, and reporting as they relate to their employees in order to comply with the WTA.
Upon their hiring, employees may be required to sign an employment contract that describes the terms of their employment and requires them to follow company policies. The WTA prohibits any contract or agreement that restricts an employee from reporting unlawful conduct or employment practices or testifying about alleged criminal conduct. In addition, the WTA limits the use of non-disclosure or arbitration clauses that would potentially require an employee to waive or mediate a current or future claim regarding an unlawful employment practice.
The WTA allows for confidentiality provisions in employment agreements with prospective and current employees if they comply with specific requirements. Provisions that would be considered against public policy may be included if the employer and the current or potential employee both agree to these terms in writing, and the agreement reflects “actual, knowing, and bargained-for consideration” from both parties. The agreement must also state that the employee has the right to:
Report a good-faith belief of criminal conduct or an illegal employment practice to the appropriate authorities.
Participate in governmental proceedings to enforce anti-discrimination laws.
Provide factual statements as required by law, regulation, or legal procedure.
Seek or receive professional legal counsel.
An employment termination agreement may also include confidentiality provisions, as long as this confidentiality is preferred by both parties and is agreed upon by both the employer and the employee. The employee must receive consideration in return for confidentiality, and he or she will have the right to have an attorney review the agreement. An agreement must be provided in writing, and an employee must be given 21 days to consider the agreement before signing it.
The Act also mandates that all Illinois employers provide annual anti-sexual harassment training to all employees starting in 2020. The WTA changes the current training obligations to widen the scope of training to include not only sexual harassment, but unlawful discrimination and harassment as classified according to the Illinois Human Rights Act. It is important to note that although the WTA covers almost all Illinois employers, it does not apply to employment contracts that are governed by the National Labor Relations Act or the Illinois Public Labor Relations Act.