The Workplace Transparency Act
Updated: Oct 12, 2021
Legislation Impacting Employee Rights in the Workplace
By: Megan Lopp Mathias, Founding Partner and Johnny Schroeder, Intern
Not only is transparency in leadership important, but it also has a clear positive effect on employee productivity and performance. Businesses that foster advocacy and safe space environments see highly engaged employees who are consistently more productive. Lopp Mathias Law is here to remind you about the importance of transparency in leadership and the Workplace Transparency Act.
Governor J. B. Pritzker and the Illinois General Assembly enacted legislation called the Workplace Transparency Act which took effect on January 1, 2020. The Act aims to bolster employee rights and bargaining power when entering an employment contract and takes measures to ensure that all workplaces are free of unlawful employment practices such as discrimination and harassment.
The key provisions secure employees’ right to seek remedies in a court of law for illegal conduct or unlawful employment practices at work, increase employees’ bargaining power over unilateral conditions of employment, and mandate employers to administer annual sexual harassment prevention training for all employees.
The Workplace Transparency Act declares that unilateral terms of employment (non-negotiable terms of employment) are against public policy and are severable from an otherwise enforceable contract. These non-negotiable terms take form in waiver of claims clauses, arbitration clauses, non-disclosure clauses, and non-compete clauses. The Act acknowledges individuals’ right to contract over any terms of employment and requires specific criteria for unilateral terms of employment to be legally enforceable.
Unilateral conditions are enforceable, “only if the agreement, clause, covenant, or waiver is in writing, demonstrates actual, knowing, and bargained for consideration from both parties, and acknowledges the right of the employee to:
Report any good faith allegation of unlawful employment practices to any appropriate federal, State, or local government agency enforcing discrimination laws;
Report any good faith allegation of criminal conduct to any appropriate federal, State, or local official;
Participate in a proceeding with any appropriate federal, State, or local government agency enforcing discrimination laws;
Make any truthful statements or disclosures required by law, regulation, or legal process; and
Request or receive confidential legal advice”.
(2019 ILL. ALS 221, 2019 Ill. Laws 221, 2019 ILL. P.A. 221, 2019 Ill. SB 75)
The Act’s requirements ensure that federal, State, or local officials have a transparent view into employment practices that require legal intervention. Prior to the Act, the disparity of bargaining power often allowed employer bad actors to shelter claims of illegality from legal recourse and inhibit past employees from future work via overbroad non-compete and non-disclosure terms. The new requirements strengthen employee negotiation power by assuring that employees understand what they are signing, that they have bargained for and negotiated the unilateral terms, and by securing their right to legal advice before entering an agreement with an employer.
The stated purpose of the Act was to make the workplace more equitable and even the bargaining power. In providing a non-waivable path to legal recourse against their employers, the Act motivates employers to eliminate discrimination and harassment in the workplace. Further, the Act requires that all employers provide annual employee training on sexual harassment prevention. The Illinois Department of Human Rights is released a model training module for employers.
Ultimately, the Workplace Transparency Act increases the negotiation power of employees, protects employees’ rights to legal recourse for certain conduct and unlawful employment practices, and works to promote a workplace free of discrimination and harassment. Employers now have the responsibility to review their employment agreements and workplace policies to ensure they comply with Illinois law.
Is your business performing in line with the Workplace Transparency Act? Megan Lopp Mathias and the team at Lopp Mathias Law can help make sure that you are. We provide more than just legal services...
With LEGAL+ ACCELERATE we provide beyond legal services for your business. At the same time we make sure that your practices are sound and up-to-date, we can also take a look at your financial, strategic, operational, and organizational needs. We combine a fundamental understanding of the big picture with your business goals to provide proactive solutions to solve your business' unique challenges. Our attorneys are continually involved in innovative, sophisticated, and complex legal and business issues.
Lopp Mathias Law can help you with:
Sexual harassment training
Employee handbooks, documentation, and contracts
Document review and audit
Vendor and supplier contracts and agreements
Trade secret litigation and protection of confidential information
Internet and cyber claims (i.e., Biometric Privacy Act)
Complex commercial contract disputes
and that's just to name a few. See our full suite of services, here.