Have 1 or more employees? You need to know these new changes to Illinois employment laws to steer clear of penalties AND there are extra requirements for bars and restaurants.
The Illinois Human Rights Act is the Illinois law dealing with employment issues like discrimination, retaliation and harassment. Employers need to be familiar with it. Especially now that two new public acts have broadened its scope and applicability for many infractions, and to include any employer employing one or more employees (it used to be 15 or more) (see Public Act 101-0221 and Public Act 101-0430).
So what’s new?
New Illinois Sexual Harassment Training Requirement.
Starting January 1 every employer (that’s you) is required to provide sexual harassment training to all employees ANNUALLY (yes, the amendments require that the sexual harassment training be given every year to every employee). The Illinois Department of Human Rights is tasked with putting together a model training program that can be used in addition to your current program (do you have one?) and has to include:
(1) an explanation of sexual harassment consistent with the Illinois Human Rights Act;
(2) examples of conduct that constitutes unlawful sexual harassment;
(3) a summary of relevant federal and State statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
(4) a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
If an employer chooses to implement their own training it must meet or exceed the Illinois Department of Human Rights training program.
Illinois Bars and Restaurants Have Additional Requirements.
In addition to the requirements for regular businesses, bars and restaurants have additional mandates for creating policies consistent with the Illinois Human Rights Act and ensuring employees understand other issues.
The Act now requires that every restaurant and bar operating in Illinois must have a sexual harassment policy provided to all employees, in writing, within the first calendar week of the employee’s employment.
Under the new law, the policy shall include:
(1) a prohibition on sexual harassment;
(2) the definition of sexual harassment under the Illinois Human Rights Act and Title VII of the Civil Rights Act of 1964;
(3) details on how an individual can report an allegation of sexual harassment internally, including options for making a confidential report to a manager, owner, corporate headquarters, human resources department, or other internal reporting mechanism that may be available;
(4) an explanation of the internal complaint process available to employees;
(5) how to contact and file a charge with the Illinois Department of Human Rights and United States Equal Employment Opportunity Commission;
(6) a prohibition on retaliation for reporting sexual harassment allegations; and
(7) a requirement that all employees participate in sexual harassment prevention training.
In addition to getting compliant in these aspects the new amendments also increase the requirements for settling and handling complaints, actions and lawsuits by doing things like broadening the definition of the “working environment” and prohibiting discrimination based on “percieved” categories as well as mandting reporting to the Illinois Department of Human Rights for things like settlements, lawsuits, and judgments.
In addition to expanding the requirements, the new amendments create a host of penalties giving the updated Act teeth. For instance, the failure to train can be a $500 to $1000 penalty depending on the number of employees you have. The failure to properly report to the Illinois Department of Human Rights can result in penalties from $500 to $5000.
Employment Agreements and Settlements Require More.
In addition to the changes to the Illinois Human Rights Act, the new law creates the Workplace Transparency Act which prohibits employers from having employment agreements that include including non-disclosure and non-disparagement clauses and this applies to contractors and consultants as well.
Under the Workplace Transparency Act settlement agreements also fall under greater scrutiny and are now subject to a host of restrictions and requirements such as:
(a) An employee, prospective employee, or former employee and an employer may enter into a valid and enforceable settlement or termination agreement that includes promises of confidentiality related to alleged unlawful employment practices, so long as:
(1) confidentiality is the documented preference of the employee, prospective employee, or former employee and is mutually beneficial to both parties;
(2) the employer notifies the employee, prospective employee, or former employee, in writing, of his or her right to have an attorney or representative of his or her choice review the settlement or termination agreement before it is executed;
(3) there is valid, bargained for consideration in exchange for the confidentiality;
(4) the settlement or termination agreement does not waive any claims of unlawful employment practices that accrue after the date of execution of the settlement or termination agreement;
(5) the settlement or termination agreement is provided, in writing, to the parties to the prospective agreement and the employee, prospective employee, or former employee is given a period of 21 calendar days to consider the agreement before execution, during which the employee, prospective employee, or former employee may sign the agreement at any time, knowingly and voluntarily waiving any further time for consideration; and
(6) unless knowingly and voluntarily waived by the employee, prospective employee, or former employee, he or she has 7 calendar days following the execution of the agreement to revoke the agreement and the agreement is not effective or enforceable until the revocation period has expired.
(b) An employer may not unilaterally include any clause in a settlement or termination agreement that prohibits the employee, prospective employee, or former employee from making truthful statements or disclosures regarding unlawful employment practices.
(c) Failure to comply with the provisions of this Section (of the Act) shall render any promise of confidentiality related to alleged unlawful employment practices against public policy void and severable from an otherwise valid and enforceable agreement.
(d) Nothing in this Section (of the Act) shall be construed to prevent a mutually agreed upon settlement or termination agreement from waiving or releasing the employee, prospective employee, or former employee’s right to seek or obtain any remedies relating to an unlawful employment practice claim that occurred before the date on which the agreement is executed.
The Act also mandates that employees have the ability to choose arbitration or a judicial forum when it comes to discrimiation or harassment issues but this may very well conflict with the Federal Arbitration Act. The arbitration provisions also impose rebuttable presumptions of unconscionability for things like punitive damages, excess fees and costs, shortened statutes of limitations, and waivers of rights.
Employers are now required to annually report to the Illinois Department of Human Rights information regarding the number of settlement agreements they enter into relating to harassment or discrimination, settlement agreement breakdowns by sex, religion, age, disability, military status – basically all categories protected by the Illinois Human Rights Act.
Worker Safety – and Leave.
The new laws also expand the rights for leave for those impacted by gender violence and sexual harassment and have mandates for hotels and casinos to protect guests and workers from harassment and assault.