Dorsey Work Watch

https://dorsey.gjassets.com/content/uploads/2026/04/Illinois-Law-Changes-5.mp4 Illinois lawmakers were busy in 2025, passing laws and amendments to existing laws that impact Illinois employers as of January 1, 2026. First, Illinois amended the Illinois Human Rights Act (“IHRA”), which prohibits discrimination, harassment, sexual harassment, and retaliation against individuals in connection with employment. The Illinois Department of Human Rights (“IDHR”) administers the IHRA and is the agency to which employees submit complaints when they believe an employer has engaged in conduct that violates the IHRA. Effective January 1, 2026, it is now discretionary, rather than mandatory, for the IDHR to bring employee complaints to a fact-finding conference. This means the IDHR now has discretion to investigate employee complaints based on written submissions by the parties alone. Further, a previously passed IHRA amendment making it a civil rights violation for an employer to use AI in a manner that subjects employees to discrimination went into effect on January 1, 2026. Illinois employers must now ensure that AI used or relied upon to make employment decisions does not have a discriminatory effect on employees based on a protected class. Failure to notify employees of the employer’s use of AI is also now a civil rights violation. Third, Illinois’ VESSA law was amended and expanded as of January 1 to prohibit employers from firing, refusing to hire, discriminating against, or otherwise retaliating against an empl oyee who uses employer-issued devices to record a crime of violence, including domestic violence or sexual violence, committed against the employee or their family or household member. Next, the legislature amended the Illinois Workplace Transparency Act (“IWTA”). First enacted in 2019 in the midst of the #MeToo era, the IWTA restricted nondisclosure and nondisparagement language in employment, separation, and settlement agreements unless the clauses were mutual; limited the use of mandatory arbitration for sexual harassment or other discrimination claims; required annual sexual harassment training for all employees; and mandated that employers report settlements and adverse judgments to the Illinois Department of Human Rights. As of January 1, 2026, the IWTA has been amended to expand its scope and impact on employment, separation, and settlement agreements. For example, the definition of “unlawful employment practice” has been expanded to include most employment claims, including wage and occupational safety claims. The law also now includes a definition of “concerted activity” and provides that agreements may not prohibit, prevent, or restrict an employee from reporting allegations of unlawful conduct to government officials or engaging in concerted activity to address work-related issues. Perhaps most consequentially, the amendments address several technical provisions. The IWTA now provides that employers may not condition employment or continued employment on an agreement to shorten the applicable statute of limitations, apply non-Illinois law to an Illinois employee’s claim, state that confidentiality is the employee’s preference, or require a venue outside of Illinois to adjudicate an Illinois employee’s claim. Finally, confidentiality provisions related to alleged unlawful employment practices must be supported by distinct, bargained-for consideration separate from the consideration provided in exchange for a general release of claims. This may be accomplished by explicitly allocating a portion of the consideration payment to the confidentiality provision within the agreement. Other Illinois employment laws that went into effect on January 1, 2026, include:• Employee Blood and Organ Donation Leave Act: amended to apply to part-time employees• Nursing Mothers in the Workplace Act: requires employers to provide nursing mothers with reasonable paid break time to express milk• Family Neonatal Intensive Care Leave Act: requires employers to provide unpaid leave if an employee’s child is in the NICU In light of these changes to Illinois employment laws, now is a good time to review employment policies and agreements to ensure compliance with these acts and amendments.

Many Canadian employers expanding into the U.S. believe the U.S. legal presumption of at-will employment will provide them with additional protection against wrongful termination claims. Unfortunately for those employers, this belief is a trap. In Canada, employees who are terminated without cause often must be paid severance. In the U.S. however, an employer is generally not obligated to pay severance when an employee is fired without cause unless there is a contract requiring severance. The reality in the U.S. is that essentially every employee falls into an exception to the at-will employment doctrine. Wrongful termination claims in the U.S. are almost always discrimination or retaliation claims. In the former claim, the employee alleges that they were terminated due to some protected characteristic such as age, gender, or race. In the later claim, the employee alleges that they were terminated because they engaged in some protected activity, such as taking protected leave or complaining about workplace harassment. Once an employee alleges discrimination or retaliation, the presumption of at-will employment falls away and the employer must demonstrate a legitimate non-discriminatory and non-retaliatory reason for the termination, which the employee cannot show was a mere pretext. Because just about every employee is in some protected class or has recently engaged in some protected activity, U.S. employers must have a legitimate reason for the termination supported by strong documentary evidence. Otherwise, the employee gets to tell their story to a jury predisposed to rule against any employer who cannot provide a satisfying reason why they terminated that employee. And U.S. juries over the last several years have rendered several devastating verdicts, including a $366 million verdict handed down by a Texas jury in a case alleging race discrimination. As this case demonstrated, these verdicts are not limited to states with a reputation for being employee friendly such as California. Employers’ best defense against such verdicts is a strong performance management system that documents the legitimate non-discriminatory and non-retaliatory reasons for a termination. This requires documenting performance issues over time, not coming up with and documenting reasons after the fact. Even better, if an employer can show, with documentation, that they tried to help the employee be successful, but the employee lacked either the ability or the inclination to do so, it can help stop an employment claim before it can move much past the demand letter stage. Canadian companies taking on employees in the U.S. should make sure they have a firm grasp of the kinds of performance management practices that will keep them out of trouble. Relying on at-will employment alone is a recipe for disaster.

What happens when an employee starts yelling at the boss, makes profane social media posts about work, or engages in other “abusive conduct?”  In many cases, employers can follow their own policy and impose discipline if appropriate.  But, where profanity and heated outbursts come up in the context of complaints about the terms and conditions of the employee’s job, the issue quickly becomes far more complicated. On May 1, 2023, the National Labor Relations Board (“NLRB” or the “Board”) released a decision addressing employee outbursts in Lion Elastomers, LLC, 372 NLRB No. 83.  Overturning a 2020 decision which itself overturned several prior NLRB decisions on employee outbursts, the Board in Lion Elastomers, LLC reinstated a series of tests to determine when and how an employee’s workplace outbursts can be actionable. What employee rights were involved in the decision? Most employees have a right to engage in “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”).  That means employees have the right to, among other things, discuss the terms and conditions of their employment with others, engage in union-related activity, and, where appropriate, go on strike.  The rights afforded to employees under Section 7 are not, however, absolute.  A long line of cases address when an employee may lose the protection of Section 7 by engaging in “abusive conduct,” such as vulgarity, name-calling, or other outbursts.  For more information, see our prior posts on Concerted Activity in 140 Characters or Less, and a Profanity-Laden Rant Against a Supervisor (and others). How has the NLRB decides whether an employee outburst constitutes Section 7 concerted activity? Over time, the NRLB adopted a number of tests for determining when an employee steps outside of the protection of Section 7.  The prior tests, based on the decisions in Atlantic Steel, Clear Pine Mouldings, and Pier Sixty, sometimes considered the totality of circumstances, the nature of the outbursts, whether the outburst was provoked, or whether the outburst was coerced.  In 2020, however, the NLRB overruled these various tests and held that rather than examine the circumstances of the employee’s outbursts, the test should be the employer’s motive.  In that case, General Motors, LLC, 369 NLRB No. 127, the NLRB held that test that should be used is whether the employer was motivated by an anti-union animus or whether it merely sought to enforce its anti-profanity policies. One presidential transition and two NLRB appointments later, the Board shifted course.  The Board’s May 1, 2023 decision in Lion Elastomers, LLC overturned General Motors, LLC, in effect reinstating the Atlantic Steel, Clear Pine Mouldings, and Pier Sixty tests.  The Board’s lengthy explanation for its turn of course rejects General Motors as a sharp departure from federal law, and incongruent with the policy underlying the NLRA.  Specifically, the Board read heavily into language from the United States Supreme Court acknowledging labor disputes “are ordinarily heated affairs,” and that an employee’s Section 7 rights are not necessarily dependent on an employer’s anti-union bias. What is the NLRB’s current standard? So where does that leave employers today?  The NLRB’s Lion Elastomers, LLC decision provides a short rule: “[C]onduct occurring during the course of protected activity must be evaluated as part of that activity—not as if it occurred separately from it and in the ordinary workplace context.”  That means employers can’t strictly apply their profanity or obscenity policy as written if the conduct at issue touches on some conduct protected by the NLRA.  To provide an easy example: an employee who curses at the boss during a union negotiation meeting is probably engaged in protected activity, and therefore protected by the NLRA. Employers must examine what kind of protected activity is at issue.  For different situations—such as picketing, negotiations, or off-work social media usage—the NLRB has adopted different standards.  If employee conduct on the picket line is at issue, employers should consider whether, under all the circumstances, non-strikers would have been coerced or intimidated by the picket line conduct under the Clear Pine Mouldings standard.  If the issue involves outbursts towards management, the Atlantic Steel test requires employers to consider:  (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practices.  And, where the “abusive conduct” involves social media, employers need to consider “the totality of the circumstances” under Pier Sixty. What should employers do now? All this to say that employers should be cautious when dealing with potentially abusive conduct by an employee that could be part of NLRA protected activity.  To be proactive, employers should take a few key steps: Implement a Clear, Written Policy. As always, employers should have a written policy governing offensive or vulgar language in the workplace.  The policy should inform employees of the rules regarding the use of profanity in their interactions with customers, clients, or other members of the public, colleagues, and superiors, and the policy should make the consequences for violations clear. Enforce the Policy Consistently and Uniformly. Having a policy is great, but it’s just as important to implement the policy fairly.  Failures to enforce anti-profanity policies in the past can tie an employer’s hands when faced with conduct that may be clothed in NLRA protection.  Importantly, consistent enforcement includes ensuring managers and supervisors comply with the policy. Avoid Limiting Protected Activities: The enforcement of a policy against profanity in the workplace must be balanced against an employee’s right to engage in NLRA protected activity. For employers, that means carefully considering the context in which the objectionable conduct occurs: is there any angle of the conduct or language which touches on an employee’s Section 7 rights, or is the conduct unrelated and distinct from any concerted activity? NLRB rules generally go back-and-forth during different presidential administrations.  For now, the Board’s decision in Lion Elastomers, LLC restores the pre-2020 status quo for employers with respect to abusive employee conduct.  Once again, employers must ensure they balance their own interest in maintaining workplaces free of profanity or abusive conduct against the legitimate rights of an employee to engage in concerted (and sometimes heated) activity, which may involve profanity.