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New Illinois Workplace Transparency Law Limits Employers’ Ability to Stop Disclosure of Alleged Illegal Acts

New Illinois Workplace Transparency Law Limits Employers’ Ability to Stop Disclosure of Alleged Illegal Acts

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When signed into law last month, the new Illinois Workplace Transparency Act (WTA) included a variety of provisions creating substantial changes for employers and employees starting Jan. 1, 2020. We covered one of the provisions – mandatory annual sexual harassment prevention training – in our blog post here.

The WTA also includes new restrictions on how and whether employers can limit by contract an employee’s disclosure of the employer’s alleged unlawful conduct. The following FAQs address what employers should consider when reviewing their current policies and employment agreements in light of the new restrictions.

What restrictions does the Workplace Transparency Act address?

It limits an employer’s ability to restrict the disclosure of alleged unlawful conduct with respect to government reporting, employment agreements and post-employment agreements.

What if an employer is already subject to a collective bargaining agreement that conflicts with the law?

The WTA does not apply to any contracts that are entered into under and subject to the Illinois Public Labor Relations Act or the National Labor Relations Act.

When does the law apply? Can an employer prevent an employee from reporting alleged unlawful conduct to government authorities?

No. The WTA includes a blanket prohibition on any agreement, clause, covenant or waiver that prevents an employee (prospective, current or former) from reporting allegations of unlawful conduct to federal, state or local officials for investigation. Likewise, an employer cannot prohibit an employee from testifying in an administrative, legislative or judicial proceeding concerning alleged unlawful conduct.

What does “unlawful conduct” include?

Unlawful conduct includes:

Can an employer prevent an employee from disclosing alleged unlawful employment practices by use of an employment agreement?

Only if certain conditions are met. The general rule is that an employer cannot unilaterally require an employee or prospective employee to enter into an employment agreement that:

However, such provisions will not be void so long as the parties mutually enter into an employment agreement that:

Can an employer prevent an employee from disclosing alleged unlawful employment practices by use of a settlement or termination agreement post-employment?

Again, only if the agreement (often called a “separation” or “severance” agreement) includes certain provisions. The general rule is that agreements with departing employees that include “promises of confidentiality related to alleged unlawful employment practices” are void. However, such provisions will not be void if the agreement states that:

What are the consequences for violating WTA?

An employee who successfully challenges an agreement that violates the law is entitled to reasonable attorney’s fees and costs.

Are there situations when WTA does not apply?

Yes. An employer may still require an employee to maintain confidentiality of allegations of unlawful employment practices made by others under the following circumstances:

For additional information, please contact a member of Gould & Ratner’s Human Resources and Employment Law Practice.

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