New Laws Impacting Employment in 2020


The Workplace Transparency Act

The Workplace Transparency Act (“WTA”) (P.A. 101-0221) takes effect in Illinois on January 1, 2020 and its provisions will have an impact on employment agreements and separation agreements after its effective date. This means that current agreements covered under the WTA need to be reviewed and revised accordingly. As to employment agreements (such as contracts of employment):

  • Employers would be prohibited from preventing employees from making truthful statements or disclosures about unlawful employment practices or criminal activity;
  • Employers would be prohibited from requiring employees to arbitrate or waive future claims related to unlawful employment practices; and
  • However, the employer and employee can mutually agree to such conditions that would otherwise be prohibited if there is a knowing and bargained-for exchange between the parties. The WTA is trying to prevent employers from unilaterally imposing such terms on employees in “take-it-or-leave” contracts.

Separation/Severance Agreements

As for separation/severance agreements (used primarily in termination cases):

  • Confidentiality clauses are acceptable as long as the clause is mutually beneficial to both parties; the employee is allowed to have an attorney review the agreement; there is valid, bargained-for consideration; does not waive claims for unlawful employment practices that occurred before the execution of the agreement; the employee is given 21 days to consider the agreement; and the employee has 7 days to revoke the agreement after signing it.

Employee Handbooks

The WTA also amends the Illinois Human Rights Act (“IHRA”) which will require employers to ensure that their employee handbooks and policy statements are updated accordingly:

  • The definition of “unlawful discrimination” is now expanded by including the terms “actual” and “perceived” with respect to the protected classifications.
  • The IHRA now includes a definition for “harassment” that is similar to how courts have interpreted harassment under Title VII of the Civil Rights Act of 1964. The IHRA now makes it clear that all forms of “harassment” based on protected classifications are prohibited. The IHRA now makes an employer liable for harassment against nonemployees by non-managerial and non-supervisory employee if the employer becomes aware of the conduct and fails to take corrective action. A nonemployee is someone who is not an employee, but otherwise performs services for the employer and could include contractors and consultants. This will have an impact on companies that hire temporary workers from staffing companies.
  • All Illinois employers must now provide sexual harassment training on an annual basis. The Illinois Department of Human Rights (“IDHR”) will create an online training program at no cost that will satisfy compliance with the IHRA. Employers, however, can establish their own training program that meets or exceeds the IDHR’s program.

Gender Violence

The WTA also amends the Victims’ Economic Security and Safety Act by now including a definition for “gender violence” which means violence against a person based on actual or perceived sex or gender.

The Cannabis Regulation and Tax Act

The Cannabis Regulation and Tax Act (“CRTA”) also takes effect on January 1, 2020 and the CRTA has been subject to much debate by legal commentators. In its present form, employees can be subject to discipline if the employer has a good faith belief that the employee demonstrates articulable symptoms of cannabis impairment while working. This led to much confusion on employee drug testing and the effect of a failed drug test on whether an employee could be disciplined, including terminated. In an attempt to clarify this, Governor Pritzker signed into law Public Act 101-0593, which amends Section 10-50(e) of the CRTA to make it clear that an employee or applicant who fails a drug test would not have a cause of action against an employer if the employee was terminated, assuming the drug testing policy is reasonable and non-discriminatory. This would also include an applicant for employment who fails a post-offer drug test.

Employers should update their employee handbooks and policy statements based on the current form of the CRTA, but be mindful that more changes may be needed down the road if the amendment is signed into law.

If you need legal assistance on a specific matter or would like a review of your forms, policies, or company practices concerning any of the new laws or requirements, please contact Donald S. Rothschild or Brian M. Dougherty.

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The authors, publisher, and distributor of this GSRNH Legal Update are not rendering legal or other professional advice or opinions on specific facts or matters. Under applicable rule of professional conduct, this communication may constitute attorney advertising.

© Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd.

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