• Many employers have asked the Illinois Department of Human Rights (IDHR) for guidance on their new training requirements.
• The IDHR has released information in the form of electronic handouts
• The IDHR has also answered several vital questions from employers via a “FAQ” on its website

As of January 1, 2020, all Illinois employers must provide sexual harassment training to nearly everyone in the state. When the Illinois Human Rights Act (“IHRA”) was amended in 2019 to create this requirement, the language in the statute left some questions unanswered. The vagaries in the regulation left some employers scrambling to meet their new obligation past January 1, 2020, the effective date for the new law. As is often the case, more than a month into the statute’s effective period, the IDHR released a set of FAQ and minimum training standards on its website. Both documents attempt to answer some of the unanswered questions in the law. This article will synthesize and analyze the IDHR’s records to help prepare your organization to meet its training obligation.

• When will the IDHR release a model training program demonstrating compliance with the statutory requirements?

According to the Minimum Training Standards guidance released by the IDHR on February 3, 2020, the IDHR’s model sexual harassment prevention and training program (and supplementary material for those employers in the restaurant and bar industry) will be released late February 2020.

• What are the minimum standards for sexual harassment prevention training?

The IDHR, unfortunately, did not provide any clarity on this issue beyond the elements contained in the statute. We hope the model training program will provide more clarity. By way of review, though, the following should be included in any training program provided to Illinois employees:

• An explanation of sexual harassment consistent with Illinois law
• Examples of conduct that constitutes unlawful sexual harassment
• A summary of relevant state and federal statutory provisions concerning sexual harassment
• Remedies available to victims of sexual harassment
• A summary of the responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment

• What is the deadline for training employees?

The IDHR set a deadline of December 31, 2020, for all employees to receive training. This update draws back the statement that new employees must receive training within six months of hire, even if that date fell before December 31. With this further information, employers can feel safe in compliance if training is completed by the end of 2020. Illinois employers should be aware that the IDHR recommended that new employees be trained “as soon as possible after their hire.” So while there is no six-month requirement, employers are encouraged to get new employees trained this year as soon as possible.

• Which employers are required to train their employees?

There was some confusion as to whether the new law’s requirement applied to employers with more than one employee or any employees. The IDHR has clarified that “employers with one or more employees must provide training.”

• Are employers required to train short-term, part-time, or temporary employees?

All employees must receive training, regardless of their status as part-time, temporary, or intern. The IDHR clarified that independent contractors do not have to undergo the training. That said, the FAQ document clearly states that it is “strongly advised” that all independent contractors receive training. While that language appears conflicting, employers should plan on training independent contractors to be safe.

• If an employee has received training elsewhere, do I need to provide additional training?

The IDHR encourages employers to retrain new employees, regardless of whether the employee received training elsewhere. Although employers are required to keep a record of activity, the IDHR was explicit in its finding that it is neither the employee’s obligation to maintain this record nor their obligation to seek it from a former employer. Therefore, because it is difficult to prove that training was taken, the IDHR recommends retraining all new employees because the employer will be responsible for demonstrating all of its employees completed the training.

• How does the requirement apply to employees and employers based outside Illinois?

This question is perhaps the most commonly asked of our organization. While the IDHR attempts to provide clarity, there are still some open questions. Because this question is so essential, the following is the exact language in the IDHR’s answer:

“Any employees who work or will work in Illinois must be trained, regardless of whether the employer is based in Illinois. If an employee is based elsewhere but regularly interacts with other employees in Illinois, even if they are not physically present in Illinois, they should be trained.”

• Example 1: Supervisor A works for ABC company in another state (Indiana, California, Florida, etc.) and supervises employees of ABC who work in the State of Illinois. Supervisor A should receive sexual harassment prevention training compliant with the IHRA even though Supervisor A is employed in another state.  
• Example 2:  Employee B works for ABC company in another state (Indiana, California, Florida, etc.) and will be working temporarily with employees of ABC in Illinois. Employee B should receive sexual harassment prevention training compliant with the IHRA even though Employee B’s home employer is in another state.

This answer has a lot to unpack, but the IDHR says that anyone who routinely has contact with an Illinois employee for work needs to receive Illinois harassment training. This answer is similarly arduous to New York’s reply that “any employee who has contact with an employee in New York City must receive training.” Because there is unlikely to be any case law soon providing legally binding precedent, employers will have to use their judgment in determining which out-of-state employees to give the Illinois training.

Because of the reporting requirement that the employer demonstrates all of its employees have completed Illinois training, the answer appears to be yes (employee needs to take multiple training courses to meet both laws). This answer also does not attempt to address the issue of whether a person who is subject to various mandatory training requirements (i.e., an employee who works in Illinois but visits New York City on a long-term, temporary assignment) has to take different training courses. Still, it will be a question of business judgment, so we strongly advise seeking independent legal counsel to determine the best for your business based on confidential facts and circumstances.

• What documentation is an employer required to maintain regarding the sexual harassment prevention training?

Illinois requires employers to keep a record of all training. The obligation can be completed by maintaining a certificate (physical or online), signed employee acknowledgment, or a course sign-in worksheet. The IDHR indicated that the record of Illinois training must be made available for IDHR inspection upon request.

• Can employers use a third-party vendor to provide training?

Yes. Suppose the training meets the standards outlined in the law (the IDHR minimum training standards document discussed above). In that case, an employer can develop its training program or use one provided by a third-party vendor.

• What if employees have multiple jobs? Do they have to take the training at every place of employment?

The IDHR says no, but again, the employer has the burden of proving the training was taken. Therefore, it would need to work with the simultaneous employer to provide a record of the Illinois training.

• Are there additional requirements for restaurants and bars?

Yes. Restaurant and bar owners and operators either must provide training supplemental to that given to regular employees or develop a course that meets the additional requirements. Those requirements include:

• Specific conduct, activities, or videos related to the restaurant or bar industry
• An explanation of manager liability and responsibility under the law
• English and Spanish options

• In what languages must the training be offered?

Employers must provide training in a way that is accessible to their staff. This means those employees who are disabled or speak a language other than English must have options to receive the training in a manner they can understand.

While Illinois has not answered every open question regarding training, the February 2020 update from the IDHR provided some additional clarity on the law’s intent. As you see, essential requirements must be completed by 2020. Every employer would be wise to get a jump on fulfilling its obligations early, given the condition too (re)train all employees annually. Syntrio would be happy to discuss options to meet your Illinois training needs as soon as possible!