Undoubtedly, 2019 has been a year of change for Illinois employers, as businesses grapple with new minimum wages, legalized cannabis use, and a bevy of other legislative updates. Those changes are expected to continue, as the state legislature recently passed a comprehensive new anti-harassment bill, which is currently awaiting Governor J.B. Pritzker’s signature. SB 75 includes several impactful provisions, some of which are outlined below.
Yearly Sexual Harassment Training Requirements
The bill requires all employers to provide annual sexual harassment prevention training. The Illinois Department of Human Rights (IDHR) will be tasked with developing a model training program that employers can use. However, it remains unclear whether the model program will be a complete video-style seminar that employers can play for their staff, or something that will require additional effort on the part of employers. Employers who fail to provide the required training will be subject to civil penalties.
There are more stringent training requirements for bars and restaurants. Under the proposed statute, every restaurant and bar must provide a written sexual harassment policy to all employees, in both English and Spanish, within the first calendar week of employment. Bars and restaurants will also be obligated to provide additional yearly training, in both English and Spanish, specifically aimed at the prevention of sexual harassment in the restaurant and bar industry.
Expanding Unlawful Harassment for Nonemployees
The bill makes it unlawful for an employer to harass nonemployees in the workplace. As a result, even contractors and consultants may be able to bring harassment claims based on their sex, race, age, or any other status protected under state law.
Employment and Separation Agreements
SB 75 also addresses certain provisions commonly found in employment contracts and severance agreements.
Initially, the bill voids any clause that requires an employee to waive or arbitrate existing or future claims related to unlawful employment practices, where such waiver is a unilateral condition of employment. Likewise, it voids any agreement that has the purpose or effect of preventing an employee from making truthful statements about alleged unlawful employment practices. Notwithstanding these prohibitions, an employer may still enforce such provisions so long as they include specific language informing the employee of his or her rights.
Also, borrowing language from the federal Age Discrimination in Employment Act (ADEA), the bill incorporates a 21-day “consideration” period and a 7-day “revocation” period for all severance agreements. This means that employers will be required to give employees 21 days to consider a separation agreement, and employees will have up to 7 days after executing a separation agreement, to revoke their signature.
In a provision that potentially guts the usefulness of confidentiality provisions, the bill also prohibits employers from including any clause in a separation agreement that would prevent an employee from making truthful statements or disclosures regarding unlawful employment practices.
An employee who successfully challenges an agreement under the bill would be entitled to recover attorney fees, further raising the stakes for employers to comply with the new law.
Adverse Ruling Disclosure Requirements
Under the bill, beginning July 1, 2020, and on each July 1 thereafter, every employer that had an adverse judgment or administrative ruling against it in the preceding year must disclose such ruling to the IDHR. The IDHR will then publish a report that aggregates the data (though employer-specific information will not be released). Employers who fail to make the required disclosures may be subject to a civil penalty.
While not yet law, we do expect the bill to be signed by Governor Pritzker in the near future and we will keep you updated on any developments. With so many new changes afoot, employers must stay diligent to ensure compliance with the rapidly evolving legislative landscape in Illinois. Should you have any questions or if you would like to discuss how this new bill will impact your company, please contact your regular Saul Ewing Arnstein & Lehr LLP labor and employment attorney.