non-disclosure agreements

By Latoya R. Laing and Erin Dougherty Foley

Seyfarth Synopsis: A number of changes have been made (and proposed amendments are being considered) to the Illinois Human Rights Act since the beginning of the year. Read on for further information.

Last June, we wrote about a series of amendments to the Illinois Human Rights Act. Since then, several of the amendments being considered back then have been signed into law. Last summer, Governor Bruce Rauner signed Public Acts 100-1066 and 100-0588, which extended the statute of limitations for filing, allows employees to opt-out of the IDHR investigative process, and reshaped the structure of the Illinois Human Rights Commission. One Bill, House Bill 4572, attempting to re-define the term “employer” under the act, didn’t make the cut.

Last year, the Illinois General Assembly proposed and passed numerous amendments to the Illinois Human Rights Act. Here’s what changed:

Employee Opt-Out

The first, and likely most notable change, is that employees who have filed a charge under the IHRA may now opt-out of the IDHR’s investigative process and proceed directly to Illinois state courts. The new amendment provides employees with the following timetable:

  • 10 Days: Within 10 days of receiving an employee’s filed charge, the IDHR must send an employee notice of their right to opt-out of the department’s investigation procedures and proceed to state court.
  • 60 Days: Within 60 days of receiving the notice, an employee must submit a written request to opt out of the investigative process.
  • 10 Days: The IDHR must respond to the employees request within 10 days, and notify the employer that the employee has opted out.
  • 90 Days: The employee must commence an action in circuit court within 90 days of the IDHR’s response. 775 ILCS 5/7A-102(B)

Statute of Limitations

Employees now have up to 300 days following an alleged discriminatory incident to file a claim under the IHRA. The Illinois statute now mirrors the Equal Employment Opportunity’s 300-day filing period. 775 ILCS 5/7A-102(A).

Notice Requirement

The IHRA requires employers to post a notice informing employees of their right to be free from unlawful discrimination and sexual harassment. The Act also requires that the same information be provided in employee handbooks.

The Illinois Human Rights Commission

The amendments also changed the structure of the Illinois Human Rights Commission and how it handles the existing backlog of claims. The changes include:

  • Decreasing the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
  • Each commissioner will be provided one staff attorney.
  • Created training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners was created to specifically address the backlog of charges and requests for review. The panel also has one staff attorney to assist them in addressing the backlog.

Charge Proceedings

In an effort to create more transparency in Commission and IDHR proceedings the statute provides new requirements for how claims are processed, litigated, decided, and ultimately published.

  • If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
  • The statute now requires that Commission decisions are based on neutral interpretation of the law and the facts.
  • The IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
  • The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
  • The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
  • Each Commission decision must be published within 180 days of the decision.

775 ILCS 5/7-109.1 – 5/8B-103

Employers Covered under the Act

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. In 2018, House Bill 4572 proposed an amendment to the IHRA to allow employers of any size to be liable under the IHRA. On May 18, 2018, the bill passed through both chambers of the Assembly passing the House 64-37 and the Senate 33-13. However, on August 13, 2018, Governor Rauner vetoed HB 4572.

More recently, a similar bill was proposed. On January 9, 2019 House Bill 252 was introduced to the Assembly. Like House Bill 4572, the bill seeks to change the covered employer standard from 15 employees to 1. On January 29, 2019 the bill was assigned to the Labor & Commerce Committee for further review. Employers should stay alert for additional developments.

Still have Questions?

Consider signing up for the March 14, 2019 “What’s Happening in Illinois” Breakfast Briefing that will be conducted at Seyfarth’s Chicago office.

In the meantime, for more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

 

By Anne R. DanaNila Merola, and Robert S. Whitman

Seyfarth Synopsis: In compliance with legislation passed earlier this year, New York State has released the final model sexual harassment policy and complaint form, the model training materials, and FAQs, which provide further guidance regarding the legislation. Two significant clarifications to the draft guidance issued several weeks ago are (1) the deadline for completion of employee anti-harassment training is October 2019, not January 2019, and (2) new employees must receive training “as soon as possible,” rather than within 30 days of hire.

Earlier this year, New York State enacted comprehensive legislation targeting workplace sexual harassment. Our previous Management Alerts outlining the various requirements under the law are linked here and here. On August 23, 2018, Governor Andrew Cuomo released a draft model policy and draft model internal complaint form, a draft training script, and draft FAQs. All of those draft documents were subject to public comment. On October 1, 2018, the State issued the final documents. This Alert highlights the key differences between the drafts and the final versions and consolidates the new requirements under the State law in one place.

As background, the law requires the Department of Labor and Division of Human Rights to create a model sexual harassment prevention policy and a model sexual harassment prevention training program. Those agencies have now done so: the model policy and the model training program is available here. Employers must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models. The sexual harassment policy must also include a complaint form for employees to report internally alleged incidents of sexual harassment (the model is available here). Below are further details about these requirements.

Policy and Complaint Form

Beginning on October 9, 2018, all employers must distribute to all New York State employees a sexual harassment prevention policy and a complaint form that employees can use to report inappropriate conduct.

For employers that opt to create their own policies, the policy must: (1) prohibit sexual harassment consistent with guidance issued by New York State; (2) provide examples of conduct that constitutes sexual harassment; (3) clearly state that sexual harassment is considered a form of employee misconduct and that disciplinary action will be taken against individuals engaging in sexual harassment and against supervisors or managers who knowingly allow such behavior to continue; (4) clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful; (5) include an internal complaint form that employees can use to report conduct that they believe is sexual harassment; (6) explain that complaints of sexual harassment will be investigated promptly and that the investigations will be as confidential as possible and that the rights and interests of all parties will be protected; (7) include information concerning the federal and state laws that prohibit sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws; and (8) inform employees of their right to file a complaint with the New York State Division of Human Rights, the Equal Employment Opportunity Commission, federal or state court, or a local police department.

The final FAQs (available here) offer additional guidance for employers. Specifically,

  • Distribution: The policy must be provided to employees in writing or electronically. If the policy is made available on a work computer, employees must be able to print a copy.
  • Contractors & Non-Employees: The policy does not have to be distributed to contractors and other non-employees. However, because the State Human Rights Law has been extended to cover non-employees who bring sexual harassment claims, employers are “encouraged” to provide the policy to non-employees and anyone providing services in the workplace.
  • Complaint Form: The complaint form does not need to be included in full in the policy, but the policy should be clear about where the form may be found (g., on an internal website).
  • Investigation Procedure: The policy must describe the employer’s internal investigation procedure. The investigation procedure does not, however, have to be identical to the investigation procedure set forth in the State’s model policy.
  • Acknowledgment of Receipt: Employers are not required to obtain or keep a signed acknowledgment that an employee has read the policy, but are encouraged to do so.
  • Languages: The policy must be provided to employees “in the language spoken by their employees.” The State will publish additional model policy and complaint forms in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with an English version.
  • New Employees: New employees should receive a copy of the policy prior to commencing work.
  • Optional Poster: The State also issued an optional Sexual Harassment Prevention Policy Notice, which is a poster that employers may display in the workplace. The poster simply directs employees and non-employees to the employer’s sexual harassment prevention policy. Posting the State’s Notice is optional. A Microsoft Word version is available here.

Training

The New York State law also requires employers to provide all employees with annual, interactive sexual harassment prevention training. In a key difference between the draft and the final FAQs, the deadline for complying with the training requirement has been extended to October 9, 2019 (previously, it was January 1, 2019). Moreover, employers are no longer required to train new employees within 30 days of hire, but rather are encouraged to provide training “as soon as possible.” The practical effect of these changes is that many employers will likely want to wait to conduct sexual harassment training until after the New York City law goes into effect on April 1, 2019. Our prior Alerts on the New York City law are available here and here.

For employers that choose to create their own training rather than adopt the State’s model, the training must be interactive and include all of the following: (1) an explanation of sexual harassment consistent with State guidance; (2) examples of conduct that is considered unlawful sexual harassment; (3) information about federal and state laws covering sexual harassment and available remedies; (4) information regarding the employer’s procedure for the timely and confidential investigation of complaints, including the specific name(s) of appropriate personnel and location to submit complaints; (5) information addressing supervisor conduct and additional responsibilities of supervisors; (6) an explanation of how to raise sexual harassment complaints with government agencies and courts; and (7) prohibitions on retaliation with examples.

Additional guidance as set forth in the final FAQs regarding sexual harassment training is as follows:

  • Annual: Employees must receive training annually, which can be based either on the calendar year, anniversary date of each employee’s start date, or any other date the employer chooses.
  • Who must be trained: All workers, regardless of immigration status, including exempt and non-exempt employees, part-time workers, seasonal workers, and temporary workers, must be trained. Non-employees, such as third-party vendors, contractors, volunteers, or consultants do not need to be trained. Employers may deem the training requirement satisfied for new employees who received compliant training from a prior employer in the past year if the new employee can verify completion through a previous employer or a temporary help firm.
  • Interactive: The FAQs offer the following examples of trainings that would meet the “interactive” requirement: (i) if the training is web-based, it has questions at the end of a section and the employee must select the right answer; (ii) if the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner; (iii) for in-person training, if the presenter asks the employees questions or gives them time throughout the presentation to ask questions; and (iv) the training provides a Feedback Survey for employees to turn in after they have completed the training. An training in which the individual only watches a video or reads a document, with no feedback mechanism or interaction, is not considered interactive.
  • Languages: Employers must provide training to employees “in the language spoken by their employees.” The State will publish model training materials in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with training in English.
  • Records: Employers are not required to maintain copies of training records, but are encouraged to do so.
  • Duration: There is no specific time requirement for the length of the training.
  • Time and Payment for Training: Any training time must be counted as regular work hours.

Non-Disclosure Agreements Involving Claims of Sexual Harassment

As of July 11, 2018, New York employers have been prohibited from including an NDA in any settlement of a claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment, unless the complainant requests confidentiality.

The final FAQs clarify that the law will not operate like the analogous provisions of the Older Workers Benefit Protection Act. Specifically, waivers cannot be included in settlement agreements that can be presented and executed on the spot in a single document. Rather, if the complainant requests confidentiality, the terms must first be provided to all parties; the complainant must have 21 days to consider the provision; and, after 21 days, if confidentiality is still the complainant’s preference, the provision must be memorialized in a separate agreement signed by all parties. The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires. The 21-day review period is not waivable, so it cannot be shortened, even if the complainant so desires. The FAQs also clarify that there must be two agreements: (1) an agreement that memorializes the preference of the person who complained, and (2) the settlement agreement itself.

As always, Seyfarth Shaw attorneys are available to assist with any questions or concerns you have regarding the New York State Sexual Harassment Laws.

By Andrew R. Cockroft

Seyfarth Synopsis: In May 2018, the Illinois General Assembly considered and also passed a series of measures aimed at changing existing employment discrimination law. On May 16, 2018, the Assembly passed House Bill 4572 which amends the Illinois Human Rights Act (IHRA) to allow employers of any size to be liable under the IHRA. On May 18, 2018, an extensive amendment was added to Senate Bill 577, seeking to expand employer liability as well as reporting and notice requirements for claims of sexual harassment. On May 30, 2018, both chambers of the Assembly unanimously passed Senate Bill 20. SB 20 amends the IHRA to provide new powers to complainants, allow complainants to wait longer to file their claims, and to make the Illinois Human Rights Commission more efficiently address the existing backlog of charges.

The month of May was a busy one for the Illinois General Assembly. Last month, the Assembly passed a series of bills that together greatly expand which employers may be held liable under the Illinois Human Rights Act, reshape the Illinois Human Rights Commission (the “Commission”) and Illinois Department of Human Rights (IDHR) in order to increase transparency and efficiency, and gives employees new powers in exercising their rights under the IHRA.

What’s more, the Illinois Senate is now considering another amendment to the IHRA which expands liability for claims of sexual harassment and further adds new employer reporting and notice requirements when incidents of sexual harassment occur.

House Bill 4572

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. The now passed House Bill 4572 amends the IHRA such that any employer who employs one or more employees for at least 20 weeks during the year may be held liable under the Act.

On May 18, 2018, the measure officially passed both chambers of the Assembly, passing the House 64-37 and the Senate 33-13.

The measure has yet to go before Governor Bruce Rauner, however, and a spokesperson for the Governor declined to comment on whether he would sign it.

With this new development, employers who employ fewer than 15 employees should familiarize themselves with the IHRA as well as Commission and IDHR proceedings.

Senate Bill 20

On May 30, 2018, Senate Bill 20 was unanimously passed by both chambers of the Assembly. The bill contains numerous revisions to the IHRA which greatly expand the powers of employees in litigating their claims:

  • Previously, a complainant could not opt out of an investigation once they initiated it. Under the new bill, a complainant may now opt out of an IDHR investigation within 60 days after filing a charge with IDHR to commence an action in Circuit Court.
  • Previously a complainant had to file their claim with the Commission within 180-days of the incident giving rise to the claim. SB 20 extends the statute of limitations to 300 days to be consistent with federal law and EEOC limits.

The bill also devotes vast, new resources to reshaping the Commission itself and how it handles the existing backlog of claims:

  • The bill decreases the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
  • Each commissioner will be provided one staff attorney.
  • The bill also creates training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners will be created to specifically address the backlog of charges and requests for review. The panel also will have one staff attorney to assist them in addressing the backlog.

Finally, SB 20 provides a series of new requirements for how claims are processed, litigated, decided, and ultimately published:

  • If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
  • The statute will now require that Commission decisions are based on neutral interpretation of the law and the facts.
  • IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • Additionally, the bill mandates that within 120 days of the effective date of SB 20, the Commission must adopt rules for minimum standards for the contents of requests for review including, but not limited to, statements of uncontested facts, proposed statements of the legal issues, and proposed orders.
  • The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
  • The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
  • The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
  • Each Commission decision must be published within 180 days of the decision.

The new provisions will hopefully create more transparency in Commission and IDHR proceedings and better allow employers to respond to claims of discrimination. Employers should keep track of any new Commission proposals in the event SB 20 is signed into law.

Senate Bill 577 – Amendment 1

A new proposed amendment to Senate Bill 577 seeks various changes to the IHRA.

First, the amendment expands what workers may bring claims of sexual harassment against an employer, what constitutes sexual harassment, and by when such a claim must be brought.

  • Independent contractors will become entitled to protections against harassment and discrimination under the IHRA.
  • The definition of sexual harassment is expanded to state that harassment on the basis of an individual’s actual or perceived sex or gender is prohibited.
  • Workers who experience harassment or discrimination will have two years to file a charge with the IDHR.

Additionally, the amendment creates new reporting and notice requirements for employers.

  • Public contractors and large employers must annually report to the IDHR on the number of settlements they enter into or adverse judgements against them related to sexual harassment or discrimination. This provision also allows the IDHR to initiate an investigation of repeat violators.
  • Employers will be required to post notice of an employee’s right to a workplace free from sexual harassment as well as the procedure for filing a charge.

The amendment also extends protections from the Victims’ Economic Security and Safety Act (VESSA) to cover claims of sexual harassment. VESSA provides an employee who is a victim of domestic or sexual violence, or an employee who has a family or household member who is a victim of domestic or sexual violence with up to 12 weeks of unpaid leave to address issues arising from domestic or sexual violence. This new amendment would, therefore, require an employer to provide 12 weeks of leave to any employee who makes a claim of sexual harassment.

Finally, the amendment also addresses the issue of non-disclosure agreements in the employment context. Employers would be prohibited from including nondisclosure clauses in settlements of sexual harassment allegations unless the employee alleging harassment chose to include such a provision. Even more, the amendment also prohibits an employer from entering into a nondisclosure agreement with any employee whose earnings do not exceed the federal, State, or local minimum wage law or who do not earn more than $13.00 an hour.

SB 577 has not passed either chamber of the Assembly. However, employers should note the Assembly’s increased focus on employment discrimination law and the myriad ways they seek to change it.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.