On April 11, 2019, the Illinois state Senate voted to pass Senate Bill 1829, also known as the Workplace Transparency Act (the “Act”).  If passed by the House of Representatives, the Act would impose new requirements and limitations on Illinois employers with respect to harassment and discrimination claims.  The following are the Act’s key features.

Limitations on Nondisclosure, Non-disparagement and Arbitration clauses

The Act would prevent employers from including in employment contracts nondisclosure and non-disparagement clauses which cover claims of sexual harassment.  In addition, employers that wish to include arbitration clauses in employment contracts would no longer be able to enforce them with respect to harassment or discrimination claims under the Illinois Human Rights Act (“IHRA”).  The Act would require arbitration clauses to include written exceptions for harassment and discrimination claims or otherwise be rendered unenforceable.

Though the Act still permits the use of nondisclosure and non-disparagement clauses within settlement agreements, certain limitations would be imposed with respect to harassment and discrimination claims.  Employers would only be able to include such clauses if: the claim arose prior to the execution of the agreement; the clauses are mutually agreed upon and operate to the benefit of both parties; the employee or applicant is given 21 days to review the terms of the agreement prior to its execution; and the employee or applicant must be afforded 7 days to revoke the agreement following execution, and the agreement would not be enforceable until that 7-day period had passed.

Mandatory Annual Disclosures

Any private or public employer, labor organization or party to a public contract that entered into a settlement or had an adverse judgment or administrative ruling entered against it with respect to a discrimination or harassment claim in the preceding year would be required to report those settlements or judgments to the Illinois Department of Human Rights (“IDHR”). Required disclosures would include the total number of settlements or judgments, the number of settlements or judgments based on each protected characteristic under the IHRA, and any equitable relief that was ordered against the employer.

The IDHR then would aggregate this data and publish an annual report without identifying any individual employer.  Nor would employers’ annual disclosures be subject to production in response to FOIA requests.  If an employer’s disclosures suggest a pattern and practice of unlawful discrimination, the IDHR may open a preliminary investigation, and could initiate a civil rights charge against that employer.

Failure to comply with these reporting requirements would result in financial penalties ranging from $500 to $5,000 per offense, depending on the size of the employer and whether it is the first violation or the latest in a string of violations.

Sexual Harassment Training

Employers would be required to provide sexual harassment prevention training on an annual basis.  These trainings would need to meet certain minimum criteria, including (but not limited to) an explanation of sexual harassment, examples of prohibited conduct, a summary of state and federal laws regarding sexual harassment, a summary of rights and remedies available to employees and a summary of the employer’s responsibilities with respect to preventing and investigating allegations of sexual harassment.  Failure to provide this required training would result in financial penalties.

Protections for Non-employees

The Act would extend IHRA protections to non-employees such as independent contractors, consultants and other contract workers.  Under this provision, employers could be held liable for harassing conduct that substantially interferes with a contractor’s work performance or creates an intimidating, hostile or offensive working environment based on a protected class.

Unpaid Leave for Treatment Following Sexual Harassment

The Act would amend the Victims’ Economic Security and Safety Act, which allows employees to take up to 12 weeks of unpaid leave for purposes of receiving medical, psychological or other services after experiencing domestic or sexual violence.  The Act would add sexual harassment to the list of bases for taking protected leave.

We will closely monitor the status of this bill and provide updates as they become available.

 

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Photo of Hannah Morris Hannah Morris

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers…

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers in counseling matters, such as drafting employment handbooks and researching workplace policies.

Hannah earned her J.D. from the University of Virginia School of Law. While in law school, she served as a Research Assistant for Professor Richard J. Bonnie working on matters related to juvenile justice. Additionally, she interned for the Office of the Public Defender for Arlington County and the City of Falls Church.

Prior to law school, Hannah was a Teach for America Corps member teaching Fourth Grade in Eastern North Carolina.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.