The Illinois Worker Freedom of Speech Act (“Act”) has been signed into law. Despite the name, the Act has little to do with worker freedom of speech and is more focused on restricting employers' speech. Pursuant to the Act, Illinois employers are prohibited from terminating or disciplining employees (or threatening to do so) because they decline to attend or participate in an employer-sponsored meeting about political or religious matters or decline to receive communications about such a meeting.

The Act is effective January 1, 2025.

“Political Matters”

"Political matters" is defined broadly to cover elections, political parties, proposals to change legislation, regulations, or public policy, and the decision to join or support any political, civic, community, fraternal, or labor organization.

The inclusion of the term “labor organization” is notable since it would include, among other scenarios, employers that distribute union avoidance literature or hold meetings designed to discourage organizing efforts. Further, since “employee” is not limited in the Act to non-managerial employees, this could also mean that employers would not be able to require managers to attend meetings designed to train them in union avoidance. Employers who hold such training sessions should make clear in writing that attendance is strictly voluntary and that failure to attend will not result in adverse action. Nothing in the Act prohibits employers from conducting such meetings on a strictly voluntary basis.

There are a few exceptions to the Act, such as voluntary meetings that discuss religious or political matters; conveying information required by law; communicating information necessary for employees to perform their job duties; attending training intended to foster a civil and collaborative workplace or prevent workplace harassment or discrimination; or prohibiting political or religious organizations from requiring their employees to attend meetings discussing that organization’s political or religious beliefs.

Enforcement

Employees who believe the Act has been violated may bring a civil action to enforce the Act within one year after the date of the alleged violation. The court may award the prevailing employee relief including injunctive relief, reinstatement to the employee’s former position or an equivalent position, back pay, reestablishment of any employee benefits, including seniority, to which the employee would otherwise have been eligible if the violation had not occurred, and any other appropriate relief deemed necessary by the court to make the employee whole. The court “shall” also award a prevailing employee reasonable attorney’s fees and costs. Not surprisingly, the Act is silent as to awarding a prevailing employer any attorney’s fees or costs, which likely means the only option for employers to recover attorney’s fees will be if the employer can prove the litigation was frivolous under state or federal procedural rules.

In addition, the Illinois Department of Labor (IDOL) must inquire into any alleged violations that are brought to its attention by an “interested party” to institute actions for additional penalties that are called for in the Act. Section 25 of the Act states “In addition to the relief set forth in Section 20, an employer shall be assessed a civil penalty of $1,000 for each violation of Section 15, payable to the Department.” Although it is not clear, presumably the IDOL must institute a proceeding to impose the penalty, rather than a court having jurisdiction to impose a fine that becomes payable to the IDOL. In addition, the Act also calls for “interested parties” to bring claims to the IDOL.

An “interested party” means an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements. This is an exceptionally vague definition (and the term “organization” is not defined) and might be broadly interpreted to include nearly anyone who claims to care about worker rights. This could mean not only a union that seeks to organize at a particular company but could also include an attorney who represents employees in employment-related claims. Astonishingly, interested parties are given three years after the alleged conduct to file suit, which is tolled during the investigation period at the IDOL. Thus, this Act gives so called “interested parties” more rights and leeway than actual “aggrieved parties.” Even more astounding is the fact that these interested parties can not only recover the damages allowed for aggrieved parties, but also 10 percent of any statutory penalties assessed, plus any attorney’s fees and expenses in bringing the action. Thus, employers can likely expect a slew of litigation by plaintiff’s lawyers, union representatives, and others purporting to be “interested parties,” whether legitimate or not, and whether damages have been suffered or not. There are a few exceptions to the Act, such as voluntary meetings that discuss religious or political matters; conveying information required by law; communicating information necessary for employees to perform their job duties; attending training intended to foster a civil and collaborative workplace or prevent workplace harassment or discrimination; or prohibiting political or religious organizations from requiring their employees to attend meetings discussing that organization’s political or religious beliefs.

Key Takeaways

If there are no challenges to the Act prior to it taking effect on January 1, 2025, it will be important for employers to make it clear that any meetings that discuss political (including any union issues) or religious matters are voluntary. If employers want to discuss other matters that are not forbidden by the Act, it will be necessary for them to hold separate meetings or have distinct parts to the meeting where they allow employees to leave when touching on any political (including union) or religious matters. The alternative to doing the above would be a risk to employers, though that risk may be something an employer chooses to take in order to challenge the validity of the law.