It is a busy time for employment-related legal updates in Illinois, with Governor J.B. Pritzker recently approving various laws that expand employee protections and add new obligations for employers.
This Client Alert is part of a seven-part series discussing laws Illinois employers need to consider as we move toward 2025. Those laws include:
- amendments to the Illinois Day and Temporary Labor Services Act, which modify and build on 2023 amendments regarding equal pay and benefits for temporary workers (effective 8/9/24) (Client Alert here);
- amendments to the Illinois Human Rights Act expanding the statute of limitations to 2 years and adding new protected classes (effective 1/1/25) (Client Alert here);
- amendments to the Illinois Human Rights Act, which prohibit the discriminatory use of artificial intelligence and require employer notice of AI use in the workplace (effective 1/1/26) (Client Alert here);
- amendments to the Illinois Equal Pay Act governing pay transparency in job postings (effective 1/1/25) (Client Alert here);
- amendments to the Illinois Wage Payment and Collection Act, which expand pay stub requirements (effective 1/1/25);
- expanded scope of documents and protections under the Illinois Personnel Records Review Act (effective 1/1/25);
- a new Illinois Worker Freedom of Speech Act, which protects employees who decline to participate in certain employer-sponsored meetings on religious or political matters (effective 1/1/25) (the following alert);
- amendments to the Illinois Biometric Information Privacy Act, which limit damages for BIPA violations, among other things (effective 8/2/24) (Client Alert here); and
- amendments to the Illinois Right to Privacy in the Workplace Act, which regulate employer use of E-Verify and similar systems (effective 1/1/25).
Stay tuned as other alerts are released in the coming weeks regarding the above updates.
Illinois' New Worker Freedom of Speech Act
The Illinois Worker Freedom of Speech Act (Public Act 103-0722) (“Act”) will take effect January 1, 2025. This new law is similar to the laws in a handful of other states that restrict an employer’s ability to mandate employee attendance at “captive audience” meetings (i.e., mandatory, employer-sponsored meetings that are designed that to communicate an employer’s position on certain topics, particularly unionization). In Illinois, the Act specifically protects employees who choose to opt out of such meetings and other communications regarding the employer’s position on various topics, including political matters, religious matters, public policy proposals, and the decision to join or support a union or other organizations.
Employee Protections and Prohibited Employer Actions
The Act applies to any employer and employee covered by the Illinois Wage Payment and Collection Act, which means nearly all private and public employers with an employee based in Illinois will need to comply with the Act’s requirements for their Illinois employees.
The Act prohibits employers (as well as their agents, representatives, and designees) from discharging, disciplining, penalizing, threatening, or taking any adverse employment action against an employee under any of the following circumstances:
- because the employee declines to attend or participate in an employer-sponsored meeting or declines to receive or listen to communications from the employer… if the meeting or communication is to communicate the opinion of the employer about religious matters or political matters;
- as a means of inducing an employee to attend or participate in meetings or receive or listen to communications described in paragraph (1); or
- because the employee, or a person acting on behalf of the employee, makes a good faith report, orally or in writing, of a suspected violation of this Act.
Similar to other laws restricting captive audience meetings, the Act broadly defines “political matters” as those “relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civil, community, fraternal, or labor organization.” As a result, employers will need to consider how this new law may impact their communications with employees regarding union and other labor matters, including during any union organizing campaign.
The Act also broadly defines “religious matters” as those relating to “religious belief, affiliation, and practice and the decision to join or support any religious organization or association.” The full scope of this definition in uncertain, as the Act does not define or explain what is considered “religious” or a “religious organization or association.”
Exceptions to the Act
The Act includes the following exceptions:
- communications or information that employers are required by law to communicate to employees (but only to the extent of the lawful requirement);
- meetings and communications where the employee’s attendance or participation is voluntary;
- communications or information that is needed for employees to perform their job duties;
- training sessions intended to foster a respectful workplace or to prevent workplace discrimination and harassment; and
- other limited exceptions specific to institutions of higher education, certain political-based and non-profit organizations (not including §501(c)(3) non-profit organizations), the General Assembly, state and local legislative and regulatory bodies, and religious organizations.
Posting Requirement
By the end of January 2025, employers with Illinois-based employees must begin posting a notice describing the “employee rights” included in the Act. Although the Act does not explain what specific information must be included in the required notice, we assume the Illinois Department of Labor (IDOL) will include that information in an updated version of its “Your Rights Under Illinois Employment Laws” poster (which already includes notice requirements for other Illinois laws regarding employees’ wages, welfare, and working conditions).
Private Cause of Action and Other Enforcement Provisions
The Act provides employees with the right to bring a private civil action within one year after the date of an alleged violation. In addition, the Act provides enforcement mechanisms that can be used by the Illinois Department of Labor (IDOL) and “interested parties.” The Act vaguely defines “interested parties” as meaning “an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements.”
In particular, the Act requires the IDOL to investigate any alleged violations of the Act brought to its attention by an “interested party” and empowers the IDOL to institute actions to enforce the provisions in the Act. The IDOL may seek the relief available to employees in a private cause of action, as well as a civil penalty payable to the IDOL of $1000 for each violation (with each employee subjected to a violation counting as a separate violation). Court actions brought by the IDOL under this provision must be made within three years after the alleged violation.
Interested parties also may bring an action for alleged violations of the Act and seek certain remedies after exhausting specified administrative remedies at the IDOL. Interested parties who prevail in such actions may obtain injunctive relief, recover their attorney’s fees and costs, and keep 10% of any statutory civil penalties assessed in the matter. Actions brought by interested parties under this provision must be made within three years after the alleged violation.
Pending Federal Court Challenge to the Act
On August 8, 2024, a complaint was filed in an Illinois federal court challenging the Act’s requirements. The complaint requests that the court (a) enter a judgment declaring that the Act is a content-based restriction on employers’ speech that violates the First Amendment to the United States Constitution; and (b) enjoin the IDOL from enforcing the Act. We will continue to monitor this case and any others addressing the Act and its impact on employers.
Takeaways
Employers will need to consider how the Act may impact its communications with Illinois employees regarding political matters, religious matters, unionization, public policy proposals, and other related topics. Employers also should plan to comply with the Act’s posting requirement by the end of January 2025.
For those employers most likely to be affected by the Act, now is the time to educate managers and supervisors about these changes and how to properly respond if an employee declines to attend a meeting or receive a communication regarding topics covered by the Act.
Please reach out to your MBF attorney for further guidance on this new law.