HB5574ham001 102ND GENERAL ASSEMBLY

Rep. Denyse Wang Stoneback

Filed: 3/1/2022

10200HB5574ham001 LRB102 25102 SPS 37060 a

AMENDMENT TO HOUSE BILL 5574

AMENDMENT NO. ______. Amend House Bill 5574 by replacing everything after the enacting clause with the following:

"Section 5. The Workplace Transparency Act is amended by changing Sections 1-15 and 1-30 as follows:

(820 ILCS 96/1-15)

Sec. 1-15. Definitions. As used in this Act:

"Confidentiality provision" means a provision in an agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, harassment, sexual harassment, or sexual assault brought by the employee subject to the agreement.

"Employee" has the same meaning as set forth in Section 2-101 of the Illinois Human Rights Act. "Employee" includes "nonemployees" as defined in Section 2-102 of the Illinois Human Rights Act.

"Employer" has the same meaning as set forth in Section 2-101 of the Illinois Human Rights Act.

"Mutual condition of employment or continued employment" means any contract, agreement, clause, covenant, or waiver negotiated between an employer and an employee or prospective employee in good faith for consideration in order to obtain or retain employment.

"Prospective employee" means a person seeking to enter an employment contract with an employer.

"Settlement agreement" means an agreement, contract, or clause within an agreement or contract entered into between an employee, prospective employee, or former employee and an employer to resolve a dispute or legal claim between the parties that arose or accrued before the settlement agreement was executed.

"Termination agreement" means a contract or agreement between an employee and an employer terminating the employment relationship.

"Unlawful employment practice" means any form of unlawful discrimination, harassment, sexual harassment, or retaliation that is actionable under Article 2 of the Illinois Human Rights Act, Title VII of the Civil Rights Act of 1964, or any other related State or federal rule or law that is enforced by the Illinois Department of Human Rights or the Equal Employment Opportunity Commission.

"Unilateral condition of employment or continued employment" means any contract, agreement, clause, covenant, or waiver an employer requires an employee or prospective employee to accept as a non-negotiable material term in order to obtain or retain employment.

(Source: P.A. 101-221, eff. 1-1-20.)

(820 ILCS 96/1-30)

Sec. 1-30. Settlement or termination agreements.

(a) An employer may not require a prospective, current, or former employee to sign a confidentiality provision of a settlement agreement or termination agreement relating to a claim of discrimination, retaliation, harassment, sexual harassment, or sexual assault in the workplace brought by the employee or prevent the employee from disclosing a claim of discrimination, retaliation, harassment, sexual harassment, or sexual assault occurring in the workplace or at a work-related event coordinated by or through the employer.

(a-5) This Section does not prohibit a settlement agreement or termination agreement relating to a claim alleging discrimination, retaliation, harassment, sexual harassment, or sexual assault in the workplace between an employer and an employee or former employee from containing confidentiality provisions as provided in this subsection. A confidentiality provision is permissible when:

(1) it relates to the monetary amount of a settlement; or

(2) at the employee's request, it prohibits disclosure of facts that could lead to the identification of the employee.

If the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable, then the confidentiality provision shall also be unenforceable against the employer.

Every settlement agreement or termination agreement resolving a discrimination, retaliation, harassment, sexual harassment, or sexual assault claim by an employee against an employer shall include a bold, prominently placed notice that although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.

(a-10) An employee, prospective employee, or former employee and an employer may enter into a valid and enforceable settlement or termination agreement that includes promises of confidentiality related to the monetary amount of the settlement or facts that could lead to the identification of the employee as described in subsection (a-5) alleged unlawful employment practices, so long as:

(1) confidentiality is the documented preference of the employee, prospective employee, or former employee and is mutually beneficial to both parties;

(2) the employer notifies the employee, prospective employee, or former employee, in writing, of his or her right to have an attorney or representative of his or her choice review the settlement or termination agreement before it is executed;

(3) there is valid, bargained for consideration in exchange for the confidentiality;

(4) the settlement or termination agreement does not waive any claims of unlawful employment practices that accrue after the date of execution of the settlement or termination agreement;

(5) the settlement or termination agreement is provided, in writing, to the parties to the prospective agreement and the employee, prospective employee, or former employee is given a period of 21 calendar days to consider the agreement before execution, during which the employee, prospective employee, or former employee may sign the agreement at any time, knowingly and voluntarily waiving any further time for consideration; and

(6) unless knowingly and voluntarily waived by the employee, prospective employee, or former employee, he or she has 7 calendar days following the execution of the agreement to revoke the agreement and the agreement is not effective or enforceable until the revocation period has expired.

(b) An employer may not unilaterally include any clause in a settlement or termination agreement that prohibits the employee, prospective employee, or former employee from making truthful statements or disclosures regarding unlawful employment practices.

(c) Failure to comply with the provisions of this Section shall render any promise of confidentiality related to alleged unlawful employment practices against public policy void and severable from an otherwise valid and enforceable agreement.

(d) Nothing in this Section shall be construed to prevent a mutually agreed upon settlement or termination agreement from waiving or releasing the employee, prospective employee, or former employee's right to seek or obtain any remedies relating to an unlawful employment practice claim that occurred before the date on which the agreement is executed.

(e) The provisions of this amendatory Act of the 102nd General Assembly apply to agreements entered into on or after the effective date of this amendatory Act of the 102nd General Assembly.

(Source: P.A. 101-221, eff. 1-1-20.)

Section 99. Effective date. This Act takes effect January 1, 2023.".