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Governor Pritzker signed the Workplace Transparency Act in August of 2019 and this January, the new law went into effect. While many people, business owners and employees alike, welcomed the law as appropriate in the #MeToo era, employers are grappling with how to adapt to the new regulations.

The law makes sweeping changes to the Illinois Human Rights Act, providing greater protections for workers and introducing new requirements for employers including mandatory sexual harassment training and changes to confidentiality agreements and arbitration agreements. But while the law is a big deal, it is by no means a threat to Illinois employers. With just a few smart policy changes you can not only ensure compliance, but also make your business run smoother than ever.

Let’s take a look at what the new requirements are and how you can adapt to them easily and effectively, including:

  • What the Workplace Transparency Act means for employers
  • How to meet the new training requirements
  • Navigating other compliance issues from the new law
  • Best practices to protect your brand and your workplace culture

What the Sexual Harassment Training Requirements Mean for Businesses

What does the new law entail? Broadly speaking, the Workplace Transparency Act and its impact on employers can be broken down into two parts: how companies train their employees and how they treat their employees.

The first part is the biggest one for most employers. All Illinois businesses are now required to conduct sexual harassment training on an annual basis. The law also establishes standards for sexual harassment training programs. Companies must now implement an approved training program or develop their own program that meets the minimum standards. Key standards include:

  • An explanation of sexual harassment consistent with the definition outlined in the IHRA
  • Examples of conduct that constitutes unlawful workplace harassment
  • A summary of relevant statutory provisions concerning sexual harassment including remedies available to victims of harassment
  • A summary of the employers’ responsibilities for preventing, investigating, and correcting workplace harassment

But the changes to the IHRA are not limited to training. The new law also bans companies from requiring employees to sign confidentiality agreements and from enforcing mandatory arbitration agreements. It also changes how confidentiality agreements are handled and requires employers to report any adverse findings of workplace harassment to the Illinois Department of Human Rights. And the law extends sexual harassment protections to independent contractors and consultants, a move with significant ramifications for the growing gig economy.

Violating the law comes with serious consequences for employers. In addition to damaging your employer brand and workplace, you will face up to a $1,000 fine for the first offense and $5,000 fines for each subsequent violation.

How to Comply with the Sexual Harassment Training Requirements

How can you create an effective sexual harassment training program or modify your existing training to ensure compliance? The good news is that the best practices for bringing your training into compliance are also great ways to build a safer, more productive workplace.

Beyond the four bullet-points outlined in the previous section, it’s important to be as explicit and comprehensive as possible regarding what does and does not constitute workplace harassment, what employees can do to prevent and address harassment, what promises and obligations you have regarding workplace harassment including any and all official company policies, and what employees can and should do if they are harassed.

It can be especially useful to clarify who can be a harasser or harassed (pro-tip: it’s anyone) and to examine power dynamics and unconscious biases that can cause or worsen harassment. Outline specific best-practices for employees to prevent inadvertent workplace harassment and provide clear and helpful guidelines for reporting harassment.

When creating your training program, don’t overlook your managers. You do not want to end up in noncompliance, damage your company culture and employer brand, or lose valuable employees because a manager mishandles harassment on their team. Implement specialized manager training to educate your management team on their responsibilities to protect employees and take action to address workplace harassment, the liability that they can cause if they do not follow proper procedure, how to avoid harassment allegations against themselves, and what to do if a complaint is filed against them.

Other Workplace Harassment Compliance Considerations: Confidentiality Agreements and More

In addition to the training requirement, the new law makes significant changes to how employers can create and enforce confidentiality agreements and arbitration agreements. But while there are new limitations, these are still viable tools to protect your company and its brand. You just need to be more careful about how you use them.

For both types of agreements, the law is focused on making sure that the agreements are consensual. Specifically, confidentiality in a severance agreement or settlement is only valid if the employer takes extra steps to ensure that the employee enters the confidentiality agreement freely and fully informed. So, employees must be able to show the agreement to an attorney of their choice, have 21 days to decide whether or not to sign the agreement and be able to revoke their signature for 7 days after signing. So long as a confidentiality agreement meets those standards, it is valid under the new law. And while employees may subsequently report the unlawful harassment to a government agency, they may be required to wave monetary compensation as a result.

Arbitration agreements are similarly affected rather than prevented by the new law. Employers are no longer allowed to make hiring decisions contingent on signing the agreements and must take steps to make sure that they are consensual. But the requirements are even less stringent than for confidentiality agreements. If employers give employees a brief opt-out period, odds are the arbitration agreements will be considered valid under the new legislation.

Finally, employers should include contractors in their sexual harassment training and policies. It should be clear to employees, managers, and the contractors themselves that contractors are now protected by the law and by company policies.

Workplace Harassment Best Practices to Protect Your Brand and Culture

In addition to requiring companies to conduct sexual harassment training and report violations, and reducing companies’ ability to limit employees’ speech and methods of recourse, the new law makes it more important than ever to prevent and properly address workplace harassment. It represents and reinforces a culture that will not tolerate harassment in the workplace. That means that failing to properly handle any cases of harassment at your company or to foster a company culture that discourages harassment and encourages equality will hurt your ability to attract, engage, and retain the talent you need to succeed.

So, it’s important to do more than follow the letter of the law when it comes to the Workplace Transparency Act and the Illinois Human Rights Act. Unchecked workplace harassment can cause a toxic workplace culture that undermines your employer brand and decreases employee productivity, creativity, and diversity. And it’s not just your employer brand at stake – as companies like Uber, Guess, and Google can attest. If customers find out about workplace harassment at your company, you can see your corporate brand take a hit as well.

Beyond taking employee and manager training seriously, companies should establish firm and comprehensive guidelines for workplace harassment investigations and remedial action. Your employees should know that you are on their side and will take allegations seriously while also providing a fair and transparent evaluation process for those accused.

Once an employee reports workplace harassment, you should start a serious investigation at once, whether they request one or not. Interview both the accuser and accused, as well as any witnesses as necessary, and document all responses thoroughly. If the accused is in a position of power, take steps to keep them out of the decision-making process during the investigation and prevent them from taking retaliatory actions against the employee who made the allegations.

Depending on the results of your findings, it’s important to take prompt remedial actions. Even if you have not found evidence of true misconduct worthy of disciplinary action, you should address areas of concern to ensure that all employees are comfortable in the workplace. But whatever you do, do not transfer the accuser unless they explicitly ask to be transferred. Transfers are often seen as disciplinary or retaliatory towards the accuser.

When determining how to punish misconduct after concluding your investigations, it’s important to consider several factors, including:

  • Extent and severity of the misconduct
  • Relative positions of the harasser and complainant
  • Previous allegations or findings against the harasser
  • Requested punishment by the complainant and previous punishments for the same behavior

Creating a positive, inclusive culture can go a long way towards preventing incidences and allegations of harassment. But it is equally important to take any allegations seriously, establish standardized approaches towards handling cases when they come up, and to take swift and meaningful action.

Find Out More at Our Comprehensive Webinar

Few issues employers face are as nuanced and potentially damaging as sexual harassment. Especially in light of the new law and changing culture, it’s important to get every aspect of your workplace harassment policy and procedures exactly right. Needless to say, we can’t cover it all in one blog article.

That is why we are holding a free and informative webinar on March 31st to educate employers and HR professionals about how to ensure compliance in light of the new laws. Our first panelist is Heather Bailey, a partner at SmithAmundsen’s Labor and Employment Group and an expert in discrimination, employment, and labor lawsuits, negotiations, and mediation. Heather will be joined by Launchways’ own HR Client Manager and expert in all things human resources, Karina Castaneda.

Heather and Karina will outline how to create an effective and compliant training program and adapt to the other clauses of the Workplace Transparency Act. The presentation will be followed by an in-depth Q&A so Heather and Karina can help you address your specific challenges and concerns.

Save your seat at the webinar today!

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