Effective January 1, 2026, the Illinois Workplace Transparency Act (“IWTA” or “the Act”) will be amended to further expand its scope of workplace protections, beyond those already covering harassment and discrimination. The amendments include new protections for “concerted activity” and prohibitions against one-sided contract provisions that benefit employers, marking a significant “pro-employee” turn since the IWTA was first enacted in 2019. There are six key amendments that employers should be aware of.
- Expanded Definition of “Unlawful Employment Practices”
The IWTA bars any employment or separation agreement from prohibiting, preventing, or otherwise restricting a current or former employee from reporting allegations of unlawful conduct, including criminal conduct or unlawful employment practices.
The previous definition of “unlawful employment practices” was limited to “unlawful discrimination, harassment, or retaliation.” These practices are unlawful under the Illinois Human Rights Act (“IHRA”) and Title VII, a federal law. Under the Act’s amendments, the definition of “unlawful employment practices” was expanded to include any activity that is made unlawful under the IHRA and Title VII, so that the full scope of both laws was incorporated into the IWTA.
Further, the definition now encompasses unlawful activity under any other state or federal rule or law governing employment, including those that are enforced by the Illinois Department of Human Rights, the Illinois Labor Relations Board, the Equal Employment Opportunity Commission, the U.S. Department of Labor, the Occupational Safety and Health Administration, and the National Labor Relations Board.
This expanded definition is noteworthy in that it can apply to wage claims, safety issues, and collective bargaining matters that go beyond claims of discrimination, harassment, or retaliation.
- New Protections for “Concerted Activity”
Section 1-20 of the Act has been amended to explicitly protect an employee’s right to engage in “concerted activity,” meaning employment contracts are barred from prohibiting or restricting such activity.
“Concerted activity” is defined as "activities engaged in for the purpose of collective bargaining or other mutual aid or protection as provided in the National Labor Relations Act.” This term includes attempts at organizing a labor union, engaging in negotiations with an employer alongside one’s coworkers, and discussing wages and conditions of employment with other employees.
- Expansion of Prohibited Unilateral Contract Terms
In the context of the IWTA, a “unilateral agreement” is a non-negotiable contract, including clauses and waivers, that employees or prospective employees are required to accept in order to obtain or retain employment. Section 1-25 of the Act formerly contained a prohibition against any unilateral agreement preventing an employee from making truthful statements or disclosures about unlawful employment practices.
Now this section has been expanded to prohibit “any unilateral agreement with the purpose or effect of preventing an employee from engaging in concerted activity,” which, as mentioned above, can include union organizing and discussing wages with coworkers. Additionally, employers may not unilaterally shorten statutes of limitation, apply non-Illinois law to Illinois employees, or require adjudication outside of Illinois.
- Requirements for Exceptions to Public Policy
Although contracts generally cannot include provisions that would otherwise contravene public policy, certain statutes have carved out exceptions, including the IWTA. A new amendment adds two additions to the conditions that must be met for a contract to violate what is otherwise a public policy.
First, the contract must explicitly confirm the employee’s right to “participate in a proceeding related to unlawful employment practices, including any litigation brought by any federal, state, or local government agency or any other person who alleges that the employer has violated any state, federal, or local law, regulation or rule.” The clause must further include acknowledgement of the employee’s right to “engage in concerted activity to address work-related issues.”
- New Confidentiality Requirements in Separation/Settlement Agreements
For employee separation and settlement agreements, employers are now required to (1) provide consideration for confidentiality provisions separately from any consideration provided for general release claims, and (2) document that confidentiality is the employer’s preference without doing so unilaterally by including a clause in the contract. The amendment also provides that employers are not permitted to contract for confidentiality regarding future concerted activity related to workplace conditions.
- Expansion of Recoverable Damages
The amendments also provide for an expansion of recoverable damages for current, former, or applicant employees who decide to pursue litigation. Reasonable attorney’s fees were recoverable previously, and now consequential damages are also available. Employees are also able to recover these damages if they are defending against a suit from an employer for breach of confidentiality.
What Do These Amendments Mean for Employers?
These changes and expansions to employee protections warrant a review, and perhaps a revision, of all employment agreements. All employee handbooks, offer letters, confidentiality agreements, restrictive covenant agreements, and other employment contracts should be evaluated to ensure they comply with the new IWTA.
Specifically, it is important for employers to do their homework on what may constitute “unlawful conduct” outside of the traditional employment examples such as harassment and discrimination. Workplace safety, wage and compensation matters, and labor rights and collective activity issues are a few examples of things that can fall into the new and expansive definition of “unlawful activity.”
In fact, there is a heightened focus on protecting collective action, or “concerted activity,” as it is referred to in the statute. Employers must ensure all their contracts and covenants are in accordance with the National Labor Relations Act, while also having an enhanced awareness of their duty to allow union organizing. Any contract that deters or prohibits this type of conduct will likely invalidate the contract and leave the employer vulnerable to an increase in potential damages.
Broadly speaking, these new amendments are extremely critical of unilateral agreements. The amendments will place general releases and broad contract provisions under an intense microscope that is no longer narrowly focused on stopping employers from discouraging their employees from reporting workplace discrimination or harassment. Because so many more activities are protected, employers should do their best to avoid “take it or leave it” provisions entirely, and instead make sure that every contract is mutual and voluntary.