Real World Impact: The newly enacted Illinois Freedom of Speech Act prohibits employers in Illinois from requiring employees to participate in employer-sponsored meetings if the meeting is designed to communicate an employer's position on religious or political matters (including any union issues).
Background: As we reported in July 2024, the Illinois Legislature passed the Freedom of Speech Act (SB3649) ("the Act"), which was signed into law on July 31, 2024 and will go into effect on January 1, 2025. The name of the Act is a bit of a misnomer, however, as it actually restricts employers' speech rather than protects any particular speech. The Act states that it is in the public policy interests of the State for all working Illinoisans to have protections from mandatory participation in employer-sponsored meetings if the meeting is designed to communicate an employer's position on "religious" or "political" matters. It also prevents employees from being subjected to intimidation tactics, including acts of retaliation, discipline, or discharge from their employer for choosing not to participate in employer-sponsored meetings. To that end, the Act provides that employers may not discharge, discipline, or otherwise penalize, threatened to discharge, discipline, or otherwise penalize, or take any adverse action against an employee: 1) because the employee declines to attend or participate in an employer-sponsored meeting or declines to receive or listen to communications from the employer or the agent, representative, or designee of the employer if the meeting or communication is to communicate the opinion of the employer about religious matters or political matters; 2) as a means of inducing an employee to attend or participate in meetings or receive or listen to communications described in paragraph (1); or 3) because the employee or a person acting on behalf of the employee, makes a good faith report, orally or in writing, of a violation or a suspected violation of this Act.
Importantly, "political matters" is broadly defined as matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, proposals to change public policy, and the decision to join or support any political party or political, civic, community, fraternal, or labor organization. The inclusion of the term "labor organization" is notable since it would include, among other scenarios, employers holding 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. "Religious matters" means matters relating to religious belief, affiliation, and practice and the decision to join or support any religious organization or association.
Whether the Act, or at least the inclusion of the definition of "labor organization," remains intact and goes into effect will remain to be seen. We would expect challenges to the Act similar to what has occurred in other states that have enacted similar legislation that has attempted to quash employers' speech. Previous challenges have been made based on preemption under the National Labor Relations Act (which allows for employers to hold union meetings and protects employer speech on such subjects), and/or a violation of the First Amendment.
Section 20 of the Act provides that employees who believe this law 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. Thus, 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. Interested parties may bring actions for penalties in the county where the violation is alleged to have occurred or where the principal office of the employer is located in the following sequence of events:
- The interested party submits to the Department a complaint describing the violation and naming the employer;
- The Department sends notice of the complaint to the named party alleged to have violated the Act and to the interested party. The named party may either contest the alleged violation or cure the alleged violation;
- The named party contests or cures the alleged violation within 30 days after the receipt of the notice of complaint or, if the named party does not respond within 30 days, the Department issues a notice of right to sue to the interested party as described in paragraph 4.
- The Department issues a notice of right to sue to the interested party, if one or more of the following has occurred: a) the named party has cured the alleged violation to the satisfaction of the director; b) the director has determined that the allegation is unjustified or that the department does not have jurisdiction over the matter or the parties; or c) the director has determined that the allegation is justified or has not made a determination, and either has decided not to exercise jurisdiction over the matter or has concluded an administrative enforcement of the matter.
The Act then provides conditions under which an interested party can initiate litigation.
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 (much like claims under the BIPA and Illinois Genetic Information Privacy Act (GIPA)). 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
Therefore, if there are no challenges to the law 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.
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