SB3387 101ST GENERAL ASSEMBLY

LRB101 20248 JLS 69788 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB3387

Introduced 2/14/2020, by Sen. Laura Ellman

SYNOPSIS AS INTRODUCED:

820 ILCS 96/1-15
820 ILCS 96/1-27 new

Amends the Workplace Transparency Act. Prohibits the enforcement of certain arbitration clauses. Provides that arbitration clauses must contain an exception for claims of harassment or discrimination. Establishes a rebuttable presumption that certain provisions are unconscionable in arbitration agreements, including venue conditions, waiver of other legal rights, and excessive fees.

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Workplace Transparency Act is amended by changing Section 1-15 and by adding Section 1-27 as follows:

(820 ILCS 96/1-15)

Sec. 1-15. Definitions. As used in this Act:

"Arbitration agreement" means an agreement between an employer and an employee to submit to arbitration all or certain disputes that arise in respect of a defined legal relationship, whether contractual or not, and may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

"Employee" has the same meaning as set forth in Section 2-101 of the Illinois Human Rights Act. "Employee" includes "nonemployees" as defined in Section 2-102 of the Illinois Human Rights Act.

"Employer" has the same meaning as set forth in Section 2-101 of the Illinois Human Rights Act.

"Mutual condition of employment or continued employment" means any contract, agreement, clause, covenant, or waiver negotiated between an employer and an employee or prospective employee in good faith for consideration in order to obtain or retain employment.

"Prospective employee" means a person seeking to enter an employment contract with an employer.

"Settlement agreement" means an agreement, contract, or clause within an agreement or contract entered into between an employee, prospective employee, or former employee and an employer to resolve a dispute or legal claim between the parties that arose or accrued before the settlement agreement was executed.

"Termination agreement" means a contract or agreement between an employee and an employer terminating the employment relationship.

"Unlawful employment practice" means any form of unlawful discrimination, harassment, or retaliation that is actionable under Article 2 of the Illinois Human Rights Act, Title VII of the Civil Rights Act of 1964, or any other related State or federal rule or law that is enforced by the Illinois Department of Human Rights or the Equal Employment Opportunity Commission.

"Unilateral condition of employment or continued employment" means any contract, agreement, clause, covenant, or waiver an employer requires an employee or prospective employee to accept as a non-negotiable material term in order to obtain or retain employment.

(Source: P.A. 101-221, eff. 1-1-20.)

(820 ILCS 96/1-27 new)

Sec. 1-27. Limitations on arbitration.

(a) Except when inconsistent with federal or State law, an employer may enter into a contract or agreement with an employee or applicant. However, an arbitration clause shall contain a written exception for claims of harassment or discrimination, as provided under Section 2-102 of the Illinois Human Rights Act, and shall allow an employee or applicant to pursue such claims against the employer through either arbitral or judicial forums.

(b) An employer may not enforce or attempt to enforce an arbitration clause entered into if the clause does not contain the written exception required in subsection (a). Any such arbitration clause is severable, and all other provisions of the contract or agreement shall remain in effect.

(c) There is a rebuttable presumption that the following contractual terms are unconscionable if they are included in an arbitration agreement and the employee or applicant does not draft the contract or agreement:

(1) A requirement that resolution of legal claims take place in an inconvenient venue. As used in this paragraph, "inconvenient venue" means:

(A) for State law claims, a place other than the county in which the employee or applicant resides or the contract was consummated; and

(B) for federal law claims, a place other than the federal judicial district in which the employee or applicant resides or the contract was consummated.

(2) A waiver of the employee or applicant's right to assert claims or seek remedies provided by State or federal statute.

(3) A waiver of the employee or applicant's right to seek punitive damages as provided by law.

(4) A provision limiting the time within which an employee or applicant may bring an action to a period shorter than the applicable statute of limitations.

(5) A requirement that the employee or applicant pay fees and costs to bring a legal claim substantially in excess of the fees and costs that State or federal courts require to bring a claim.