Illinois: Workplace transparency and safety - strengthened protections and new rights

At a glance

• Illinois is reinforcing employee rights through expanded transparency, stricter contract limitations, and enhanced protections for victims of violence.
• Workplace Transparency Act: From January 1, 2026, employers cannot restrict employees from engaging in concerted activities or impose unilateral clauses that limit legal recourse or apply non-Illinois law.
• New rules require separate consideration for confidentiality in settlements and prohibit employers from unilaterally stating it reflects employee preference.
• Employees may be awarded consequential damages and legal fees for breaches or successful defences of confidentiality agreements.
• Employees can now participate in arbitral proceedings when formally requested, extending protections beyond court appearances.
• Victims' Economic Security and Safety Act: Effective January 1, 2026, employers cannot retaliate against employees who use work-issued devices to document incidents of domestic or gender-based violence and must grant access to related digital evidence.

Effective January 1, 2026, HB 3638 makes significant changes to the Workplace Transparency. Among other changes, amendments:

• Prohibit any agreement from restricting an employee, prospective employee, or former employee from engaging in 'concerted activities' to address work-related concerns. The bill defines 'concerted activities' as those engaged in for the purpose of collective bargaining or other mutual aid and protection as provided in the National Labor Relations Act as it stood on the last day of the Biden Administration, as well as under certain Illinois statutes.
• Restrict certain unilateral provisions imposed as a condition of employment, including those that shorten statutes of limitations, apply non-Illinois law to an Illinois employee's claims, or require non-Illinois venue for an Illinois employee's claim.
• Provide that certain agreements or clauses that would otherwise be against public policy are still permissible if they meet various conditions. The amendments make changes to the required acknowledgements.   
• Add new conditions for confidentiality clauses in settlement and termination agreements, including a requirement that consideration for a confidentiality provision must be separate from any consideration that is provided for in exchange for a release of claims. The amendments further provide that an employer cannot 'unilaterally' include any clauses that states that the promises of confidentiality are the preference of the employee.
• Provide for the award of consequential damages in addition to reasonable attorney’s fees and costs upon a final non-appealable action in favor of the employee and allow for the same remedies for successfully defending an action for breach of a confidentiality agreement.
• Expand the right to testify to include an employee’s right to participate in arbitral proceedings when the employee has been requested to attend a proceeding pursuant to a court order, subpoena or written request from an administrative agency or the legislature.

Effective January 1, 2026, Illinois HB 1278 adds a new provision to the Victims' Economic Security and Safety Act to prohibit employers from discriminating or retaliating against an employee who uses employer-issued equipment to document incidents of domestic violence, sexual violence, gender violence, or other crimes of violence committed against the employee or a family or household member. Employers cannot deprive an employee of equipment based solely on such use and must also grant employees access to any photos, videos, audio recordings, or digital documents stored on employer-issued devices that relate to the employee's domestic violence incident.