Time’s Up: Illinois Employers Are On The Clock To Provide Sexual Harassment Training

Late last year, we summarized the many new employment laws with which Illinois employers would have to comply in 2020, including the requirement to provide sexual harassment training by the end of the year.  Now that 2020 is not so new anymore, employers should begin preparations to comply, so they are not left scrambling later this year.  This article will summarize the key points you need to know to stay compliant.

• Does this law apply to me—what is the threshold for coverage?

One and done—in other words, if you have at least one employee, the law applies to your company and you must train that employee… presumably in a one-on-one session.

• What must we cover in the training session(s)?

Presently, we know that employer-provided training must cover, at a minimum, the following topics:

1. an explanation of sexual harassment consistent with the Illinois Human Rights Act (IHRA);
2. examples of conduct that constitutes unlawful sexual harassment;
3. a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
4. a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.

• Who must be trained and when?

The law went into effect on January 1, 2020, but employers have until the end of the year—December 31, 2020—to provide the required training to both employees and managers.  There is no exception for short-term or part-time employees—you must train them as well and you must train any interns.  While you are not required to train independent contractors, Illinois Department of Human Rights (IDHR) recommends that you do so if they are working on-site at your workplace or interact with your staff.

• How often must we provide this training?

The law requires that employers train their employees and managers annually.  So, once you complete training everyone in 2020, you will need to do it again in 2021, 2022, and so on.  BONUS TIP:  Do not commit a wage and hour violation in your efforts to comply with these training requirements.  If you require your employees to take the training outside of their regular hours – for example, on their personal phones or laptops before the start of a shift – they must be paid for their time.

• Can we rely on training provided by a prior employer?

Yes, but be careful.  While you may ask employees to provide documentation that they completed the necessary training elsewhere, you remain responsible for ensuring the that training received complies with the requirements of the law.  If you are unable to obtain the proper documentation, you must have the employee retrained.  Again, the employer is responsible for demonstrating all employees completed the annual training

• Do we have to provide training in a language other than English?

Quite possibly.  You must provide the training in a way that is accessible to your employees.  If you have employees with disabilities or who speak a language other than English, you must train them in a manner that is accessible to them.  For example, a deaf employee will most likely need training with a sign language interpreter or other means that enables them to understand everything being said during the session.

• What happens if we don’t comply?

First and foremost, IDHR will expect employers to retain their own records showing that all employees received the required sexual harassment prevention training.  As such, you should remember the adage, that if something is not documented, it did not happen.  Make sure you do not find yourself in a situation where you provided training but do not have documentation to prove that it took place.  If you fail to provide the required training or lack the necessary documentation, you may face penalties not to exceed $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and subsequent offenses.

• Does the law impose additional requirements on hospitality employers?

Yes, employers that operate a restaurant, bar or casino face additional requirements, including the need to (1) provide certain employees with personal safety and notification devices that may be used to summon help if they are the victim of or are witnessing sexual harassment or a crime; (2) expressly inform each of their employees about the protections against sexual harassment and discrimination as provided by state and federal law (by giving them a copy of a harassment-free workplace policy); and (3) take measures to separate employees from offending guests and accommodate employees who seek legal protection against offending guests.  Covered employers must establish a sexual harassment prevention policy and provide a copy to their employees.  The training given to such employees also includes additional requirements, such as a review of specific conduct, activities, or videos related to the restaurant or bar industry; an explanation of manager liability and responsibility under the law; and both English and Spanish language options.

• Wait, wasn’t the Department of Human Rights going to release a model program?

Yes, according to the State of Illinois’ website, the IDHR will be making a model sexual harassment prevention training curriculum available for download at some point in February 2020.  As of the date this article is being posted to our blog, that model program has not yet been made available.  We will update this post when the model program is released.

• Can we hire Conn Maciel Carey to provide the required training?

Absolutely.  Employers may use a third-party vendor or organization, have existing staff deliver the IDHR’s model sexual harassment prevention training, or create and deliver their own training that complies with the minimum standards outlined in the law.

• Can we still include confidentiality provisions if we enter into a separation agreement with an employee who complained about harassment?

Yes, but you need to revise your agreements.  Under the Workplace Transparency Act, employers may not unilaterally require that an employee waive, arbitrate, “or otherwise diminish” existing or future claims, rights, or benefits related to unlawful discrimination, harassment, or retaliation.  However, provisions that would be void in a unilateral agreement will be allowed if you and the employee mutually agree to confidentiality in writing, and the separation agreement reflects “actual, knowing, and bargained-for consideration” from both parties.  To comply with the law, the agreement must acknowledge the employee’s right to: (1) report a good-faith belief of an unlawful employment practice or criminal conduct to the appropriate governmental authorities; (2) participate in governmental proceedings; (3) make truthful statements or disclosures as required by law, regulation, or legal process; and (4) seek or receive legal advice.  If an employer does not comply with these requirements, the law establishes a rebuttable presumption that the condition is unilateral and void as against public policy.