In recent weeks, we have reported on changes to multiple laws in Illinois, including the elimination of fact-finding conferences under the Illinois Human Rights Act, changes to the Nursing Mothers in the Workplace Act, Equal Pay Act, and Family Military Leave Act, which can be accessed here, changes to the Employee Blood and Organ Donation Leave Act, and creation of a new law, the Neonatal Intensive Care Leave Act. The final changes passed by the Illinois Legislature have now been signed into law as of August 15, 2025, and are summarized below.
Amendment to VESSA Potentially Requires Employers to Relax Electronic Device Policies
HB 1278 amends the Victims’ Economic Security and Safety Act (VESSA). The amendment addresses the use of employer-provided electronic devices. Frequently, companies that provide employees with devices such as cell phones have policies that restrict use to business-related matters and prohibit use for personal matters. Effective immediately, this new amendment to VESSA affirmatively allows an employee to use company-provided equipment to record domestic violence, sexual violence, gender violence, or any other crime of violence committed against the employee or a family or household member of the employee. Employers are prohibited from discriminating against employees in any aspect of employment for their use of company equipment for those enumerated purposes. This includes refusing to issue company equipment because the employee used or attempted to use the equipment for those protected purposes. Finally, the amendment also requires employers to allow employees to access photographs, recordings, and any other communications stored on the company devices relating to the various crimes of violence. One might imagine that an employee would want to use company devices to record the conduct involving acts of domestic, sexual, gender, or other crimes of violence rather than their personal devices when their personal devices might be on the same account as the person committing the crimes of violence and thus possibly have access to the photographs and recordings or control over the storage of such items.
Employers with electronic device policies that restrict personal use will now want to include an exception consistent with this amendment.
Amendments to Workplace Transparency Act
In August 2019, the Illinois Legislature passed the Workplace Transparency Act (WTA), which went into effect on January 1, 2020. The WTA prohibits employers from requiring employees to refrain from making truthful statements or disclosures about alleged unlawful employment practices. The WTA also allows agreements for employees to waive certain claims, but only under specified conditions such as with adequate consideration, notification of the right to have an attorney review the agreement, and time for the employees to consider the agreement and revoke their signatures. HB3638, signed into law on August 15, 2025, expands and clarifies some of the WTA’s requirements, but also adds confusing (and unnecessary) language.
No Restrictions on “Concerted Activity”
The existing version of the WTA provides that no agreements can prohibit employees from reporting allegations of unlawful conduct to federal, state, or local officials. The Act goes further and now prohibits agreements that would restrict employees from engaging in “concerted activity” to address work-related issues. “Concerted activity” is defined as “activities engaged in for the purpose of collective bargaining or other mutual aid or protection as provided in 29 U.S.C. 157 et seq. [the National Labor Relations Act], as it existed on January 19, 2025, and the Illinois Education Labor Relations Act, Illinois Public Labor Relations Act, and Labor Dispute Act.” Presumably, the reference to January 19, 2025 is because that was the day before President Donald Trump was sworn into office, and the Illinois Legislature was likely concerned about possible changes the administration might make to workers’ rights under the NLRA.
The WTA amendments also clarify that an agreement cannot restrict an employee from participating 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.
No Shortening of Statutes of Limitation, Applying Non-Illinois Law, or Venue Outside of Illinois
The amendment to the WTA also specifies that employers and employees cannot enter into any agreement that would shorten the length of any statute of limitations on any law that addresses an employment right or benefit related to an unlawful employment practice to which the employee or prospective employee would otherwise be entitled. The WTA also now prohibits an agreement that would purport to apply non-Illinois law to an Illinois employee’s claim or require a venue outside of Illinois to adjudicate an Illinois employee’s claim.
Consideration for Confidentiality Must be Separate
The WTA also now specifies that settlement or termination agreements must have valid, bargained-for consideration in exchange for confidentiality, “separate from any consideration that is provided in exchange for a release of claims.” The prior version did not specify that the consideration had to be separated out from the consideration for the release of claims and other promises. Therefore, employers must now make sure to contain a separate line item or otherwise delineate a certain amount of consideration allotted to confidentiality. There is, of course, no formula for determining what is considered to be a “valid” amount of consideration, and every case and circumstance will be different.
Documented Preference for Confidentiality Without Documenting?
The WTA provides that for a confidentiality clause in a settlement or termination agreement to be valid, confidentiality must be the “documented preference” of the employee. Oddly, the Legislature has now added that the employer may not “unilaterally include a clause in a settlement or termination agreement that states that the promises of confidentiality are the preference of the employee.” On its face, it would seem impossible for an employer to document the preference of the employee for confidentiality without, well, documenting with “a clause” in the agreement that specifies that the promises of confidentiality are the preference of the employee. Therefore, what would be considered a “unilateral” requirement is unknown, but presumably, if an employee reviews and signs the agreement, by definition, this would negate the “unilaterality” of the agreement, and it would remain enforceable.
Consequential Damages Now Available
Finally, the WTA adds “consequential damages” to “attorney’s fees” as being recoverable by an employee who successfully prosecutes a case challenging the validity or enforceability of an employment agreement or defending an action for breach of confidentiality. “Consequential” damages in this context are undefined. One could speculate that this could include something like lost wages for time missed from work to litigate a case, or a proven lost job opportunity due to a breach of confidentiality.