The Workplace Transparency Act (WTA) will affect nearly every employer in Illinois. It requires and restricts a number of new steps for employers.
Each month through June, Cramer Law will offer more detail about the WTA and what it means for employers throughout the state. It provides more protections for employees, and Cramer Law wants to be sure you understand them and that you are receiving all the protections the WTA offers.
The general areas affected by the WTA are:
- Nondisclosure and/or Nondisparagement Clauses
- Arbitration Agreements
- New Reporting Requirements to the Illinois Department of Human Rights
- Expanded Definition of Discrimination
- Additional Protections for Nonemployees, and
- Required Annual Sexual Harassment Prevention Training
The new law also includes additional requirements specific to restaurants, bars, hotels, and casinos. We will cover those in another blog post.
Nondisclosure and/or Nondisparagement Clauses
Under the WTA, employers are prohibited from entering into employment agreements that contain nondisclosure and/or nondisparagement clauses. However, employers may include a nondisclosure and/or nondisparagement clause in a separation or settlement agreement if:
- the claim arose before the agreement was executed;
- the nondisclosure and/or nondisparagement clause is the documented preference of the employee and is mutually beneficial to both parties;
- the employee is notified, in writing, of the right to have an attorney or representative review the agreement before it is executed;
- there is bargained for consideration in exchange for the confidentiality;
- the employee has 21 days to consider the agreement; and
- the employee has seven days following execution to revoke.
Arbitration Agreements
The WTA also requires employers that use arbitration agreements to exclude claims of harassment and discrimination from the arbitration requirements. “[A]n arbitration clause shall contain a written exception for claims of harassment or discrimination . . . and shall allow an employee or applicant to pursue such claims against the employer through either arbitral or judicial forums.”
Reporting Requirements
Under the new law, employers are now required to make the following disclosures to the Illinois Department of Human Rights (IDHR):
- The total number of settlements entered into by the employer in the preceding year based on claims of unlawful discrimination and/or harassment
- A breakdown of the type of claim and the protected characteristic of each claim settled
- The number of adverse judgments or administrative rulings rendered in the preceding year based on claims of unlawful discrimination and/or harassment
- A breakdown of the type of claim and the protected characteristic of each claim resulting in an adverse judgment
- Whether any equitable relief was ordered against the employer in an adverse judgment
These reporting requirements will begin on July 1, 2020.
Expanded Definition of Discrimination
The WTA also expands the definition of discrimination under the Illinois Human Rights Act (IHRA) to include both actual and perceived protected characteristics. Previously, the IHRA only allowed claims of discrimination based on perception for disability discrimination. Under the WTA, claims for discrimination will be allowed based on the perception of a claimant having a protected characteristic other than a disability, such as race or sexual orientation.
Protections for Nonemployees
These amendments to the IHRA also provide protections against discrimination and harassment to nonemployees, such as contractors and consultants. Therefore, employers may be liable for discrimination and/or harassment perpetrated by their employees that substantially interferes with the work of a contractor or consultant or creates a hostile working environment for them.
Sexual Harassment Prevention Training
Under the new law, Illinois joins California, New York Delaware, Connecticut, and Maine in requiring employers to hold annual sexual harassment training for all employees. The WTA requires the IDHR to produce a model sexual harassment prevention training program that will be made available to employers at no cost. At a minimum, this model program will include:
- An explanation of sexual harassment consistent with the IHRA;
- Examples of conduct that constitutes unlawful sexual harassment;
- A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
- A summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
