The Workplace Transparency Act (“WTA”) amendments go into effect in Illinois January 1, 2026, and it is vital that employers plan for those changes. Illinois initially enacted the WTA in 2020 to limit certain confidentiality and arbitration provisions of employment agreements. The 2026 amendments expand employee protections and impose new compliance requirements on Illinois employers.
The amendments include:
- Expanded definition of “unlawful employment practice”
- Added protections for “concerted activity”
- Prohibition of certain unilateral agreement terms
- Tightened requirements for confidentiality and settlement agreements
- Expanded participation rights in legal proceedings; and
- Added available remedies
Expanded Definition of Unlawful Employment Practice
The definition of unlawful employment practice will now include any unlawful practice under any state or federal law governing employment. This includes those laws enforced by, but not limited to, the Illinois Department of Labor, the Illinois Labor Relations Board, the U.S. Department of Labor, the Occupational Safety and Health Administration (“OSHA”) and the National Labor Relations Board (“NLRB”).
Practically, this means that in addition to harassment and discrimination claims, an unlawful employment practice may now include wage and hour claims, safety concerns and other regulatory matters. In addition, employers may no longer include provisions in agreements that attempt to restrict or prevent truthful disclosure by employees around the expanded topics. Any such provision would be considered void and against public policy.
Added Protections for Employees Engaging in “Concerted Activity”
Next, beginning January 1, 2026, employment agreements may not prohibit or restrict employees, prospective employees or former employees from engaging in any “concerted activity.” Concerted activity, as defined by the National Labor Relations Act (“NLRA”), refers to “activities engaged in for the purpose of collective bargaining or other mutual aid or protection.” The NLRB provides examples of concerted activity that include talking with one or more co-workers about wages, benefits or other working conditions, circulating a petition for better hours, participating in concerted refusal to work in unsafe conditions, and talking about problems in the workplace to coworkers, the employer, a government agency or the media. However, that protection does not extend to an employee who says or does something “egregiously offensive or knowingly or maliciously false.”
Prohibition of Certain Unilateral (Non-Negotiated) Agreement Terms
As of January 1, 2026, employers cannot include in an employment agreement any unilateral term that serves to: (1) shorten the applicable statute of limitations; (2) apply non-Illinois law to Illinois-based claims; or (3) require adjudication of Illinois claims outside Illinois if it denies the employee a substantive or procedural right or remedy related to unlawful employment practices.
However, an employer is still free to negotiate such a term, but it must be in writing, provide actual knowing and bargained for consideration, and acknowledge employee rights to report unlawful and criminal conduct to the appropriate federal, state or local governmental agency as well as to participate in proceedings related to unlawful employment practices. What this means is that the employee understands the meaning of the term, is getting something new and additional in exchange, is not prevented from reporting the unlawful employment practice, and is able participate in a proceeding related to the unlawful employment practice.
Tightened Restrictions in Confidentiality and Settlement Agreements
With respect to confidentiality and settlement agreements, the amendments to the WTA include stricter provisions. While an employer may enter into a settlement or termination agreement that contains a confidentiality provision relating to unlawful employment practices, that provision:
- may not restrict future or prospective concerted activity related to workplace conditions;
- must be supported by consideration separate from any consideration provided in exchange for a release of claims; and,
- must not be unilaterally included by the employer stating that any promises of confidentiality are the preference of the employee.
These amendments also modify the term of the confidentiality agreement in that it can extend no later than five years after the alleged unlawful employment practice occurred.
Expanded Participation Rights in Legal Proceedings
Next, the amendments to the WTA will allow any employee, prospective employee or former employee to participate in a proceeding regarding any unlawful employment practice. The term “proceeding” is broadly defined to include private litigation and arbitration actions brought by any governmental agency, not just those enforcing employee rights. This may include administrative, legislative, judicial or arbitral proceedings concerning alleged unlawful employment practices or criminal conduct. It may also apply to depositions, when requested by court order, subpoena or written request from an administrative agency or the legislature.
Added Available Remedies
Finally, beginning January 1, 2026, additional remedies will be made available to employees. In addition to the prior remedy that included reasonable attorney’s fees and costs, individuals may recover consequential damages for establishing that a violation of the WTA occurred or for successfully defending against an employer’s claim for breach of a confidentiality obligation under the WTA. That means an individual may recover “indirect” losses that happen because the violation occurred.
What should an employer do now?
- Perform a comprehensive review of all employment agreements, including offer letters, confidentiality agreements, separation agreements, termination agreements, arbitration agreements, and restrictive covenants (e.g. non-compete and non-solicitation agreements).
- Revise employment agreements to conform to the 2026 amendments.
- Add or update acknowledgements of employee rights regarding reporting unlawful employment practices, engaging in concerted activity and participating in legal proceedings.
- Assess risk and remedies exposure.
- Train human resource, legal and leadership teams on the expanded worker protections in the WTA.
- Set a deadline with a plan for implementation to ensure compliance with all the updated requirements in the WTA that take effect on January 1, 2026.
One important note, however, is that the WTA does not apply to any existing collective bargaining agreement (“CBA”) entered into and subject to the Illinois Public Labor Relations Act or the NLRA. The provisions in the CBA will control in the event there is any conflict with the WTA, however, this only applies to agreements negotiated prior to January 1, 2026. The amendments will apply to any employment related agreement entered into, modified or extended on or after January 1, 2026.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
