State of Illinois
2021 and 2022


Introduced 2/22/2021, by Rep. Carol Ammons


New Act
30 ILCS 105/5.935 new

    Creates the Illinois Employee Security Act. Establishes a framework for employee discipline and discharge. Prohibits the unjust discharge of an employee. Requires employers to utilize progressive discipline measures. Limits the use of electronic monitoring. Provides for severance pay. Directs the Department of Employment Security to adopt rules and administer the Act. Provides statutory remedies for wrongfully discharged employees and authorizes the recovery of damages. Creates the Wrongful Discharge Enforcement Fund as a special fund in the State treasury. Applies to disciplinary and discharge actions occurring one year after the Act's effective date. Effective January 1, 2022.

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HB3530LRB102 14590 JLS 19943 b

1    AN ACT concerning employment.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Illinois Employee Security Act.
6    Section 5. In this Act:
7    "Benefits" means the cash value of any employer-paid
8vacation leave, sick leave, medical insurance plan, disability
9insurance plan, life insurance plan, annuity, and pension
10benefit plan in effect on the date of discharge.
11    "Casual employee" means an employee who performs work in
12or around a private home that is irregular, uncertain, or
13incidental in nature and duration.
14    "Constructive discharge" means the voluntary termination
15of employment by an employee because of a situation created by
16an act or omission of the employer that an objective,
17reasonable person would find so intolerable that voluntary
18termination is the only reasonable alternative.
19    "Department" means the Department of Employment Security.
20    "Discharge" means any cessation of employment, including
21constructive discharge, indefinite suspension, layoff, or
22reduction in hours.
23    "Egregious misconduct" means deliberate or grossly



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1negligent conduct that endangers the safety or well-being of
2the individual, co-workers, customers, or other persons,
3including discrimination against or harassment of co-workers,
4customers, or other persons, or that causes serious damage to
5the employer's or customers' property or business interests.
6    "Electronic monitoring" means the collection of
7information concerning worker activities, communications,
8actions, biometrics, or behaviors by electronic means
9including, but not limited to, video or audio surveillance,
10electronic work pace tracking, and other means.
11    "Employ" means to suffer or permit to work.
12    "Employee" has the meaning given that term in Section 2 of
13the Illinois Wage Payment and Collection Act, but does not
14include a casual employee who performs work of an irregular
15nature in or around a private home. A person may be an employee
16of 2 or more employers at the same time.
17    "Employer" has the meaning given that term in Section 2 of
18the Illinois Wage Payment and Collection Act. More than one
19entity may be the employer of an employee, including in
20circumstances where one entity controls, is controlled by, or
21is under common control with another employer, or where one
22entity exerts control over the operations of another employer.
23An employer-employee relationship is presumed to exist when an
24individual performs labor or services for an employer. The
25party asserting that an individual is not an employee must
26establish by a preponderance of the evidence that the



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1individual is an independent contractor.
2    "Full-time employee" means an employee who regularly works
3at least 35 hours each week.
4    "Just cause" means:
5        (1) an employee's failure to satisfactorily perform
6    his or her job duties or to comply with employer policies
7    if the employee was afforded progressive discipline;
8        (2) an employee's egregious misconduct; or
9        (3) bona fide economic reasons.
10    "Progressive discipline" means an employer's disciplinary
11system that provides a graduated range of reasonable responses
12to an employee's failure to satisfactorily perform his or her
13job duties or comply with employer policies, with the
14disciplinary measures ranging from mild to severe, depending
15on the frequency and degree of the failure, and the employee
16being afforded a reasonable period of time to address
18    "Reduction in hours" means a reduction in an employee's
19hours of work totaling at least 15% of the employee's weekly
20work hours.
21    "Relator" means a current or former employee, contractor,
22subcontractor, or employee of such a contractor or
23subcontractor of an alleged violator of this Act, regardless
24of whether that person has received full or partial relief,
25who seeks relief through a public enforcement action brought
26under this Act.



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1    "Representative organization" means a nonprofit or labor
2organization selected by a relator to initiate a public
3enforcement action on the relator's behalf.
4    "Short-term position" means employment pursuant to a
5written contract that specifies that the position is to end
6after a specified period of time, not to exceed 6 months, where
7the employer can show that the work or need in question is
8expected to end, such as in the case of a seasonal job or a job
9to perform a specific project.
10    Section 10. Prohibition against unjust discharge.
11    (a) An employer shall not discharge an employee without
12just cause. Just cause may not be based on off-duty conduct
13unless there is a demonstrable and material nexus between the
14conduct and the employee's job performance or the employer's
15legitimate business interests.
16    (b) In determining whether an employee has been discharged
17for just cause for failure to satisfactorily perform job
18duties or for failure to comply with employer policies, the
19fact finder shall consider, in addition to any other relevant
20factors, whether:
21        (1) the employee knew or should have known of his or
22    her job duties or of the employer's policy;
23        (2) the employer provided relevant and adequate
24    training to the employee;
25        (3) the employer's policy was reasonable and applied



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1    consistently; and
2        (4) the employer undertook a thorough, fair and
3    objective investigation.
4    (c) A discharge for failure to satisfactorily perform job
5duties or comply with employer policies shall not be deemed to
6be based on just cause unless the employer has used
7progressive discipline. In interpreting and applying
8progressive discipline, the principles developed in arbitral
9precedents shall provide guidance. The time period between a
10first warning or discipline and termination shall be not less
11than 15 days, and the employer may not rely on a warning or
12discipline issued more than one year in the past to justify a
14    (d) Under progressive discipline, an employer may
15discharge an employee immediately for egregious misconduct. A
16finding of misconduct for purposes of unemployment insurance
17eligibility shall not necessarily constitute serious
18misconduct for purposes of this Act.
19    (e) A discharge shall not be deemed to be based on bona
20fide economic reasons unless the following conditions are met:
21        (1) the discharge results from a reduction in
22    production, sales, services, profit, or funding of the
23    employer, or technological or organizational changes in
24    the employer's operations that necessitate full or partial
25    reduction of the employer's operations;
26        (2) the employees or groups of employees to be



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1    discharged are identified using broadly applicable
2    criteria that do not appear to target individuals; and
3        (3) the bona fide economic reasons justifying the
4    discharge were specified in writing to the employee at the
5    time of the discharge and are supported by the employer's
6    records.
7    A discharge shall be presumed not to be based on bona fide
8economic reasons where the employer hired or hires another
9employee to perform substantially the same work within 90 days
10before or after the discharge. Elimination of staff redundancy
11created by a merger or acquisition shall not be deemed a bona
12fide economic reason for discharge of employees.
13    (f) The employer shall within 3 days provide a written
14explanation to any discharged employee of the specific reasons
15for the discharge. In determining whether an employer had just
16cause for discharge, a fact finder may not consider any
17reasons not included in such written explanation. Where an
18employer fails to provide a written explanation to a
19discharged employee, the discharge shall not be deemed to be
20based on just cause. All information and judgments that the
21employer considered in making the determination shall be made
22available to the employee or his or her representative.
23    (g) The employer shall bear the burden of proving just
24cause including, if applicable, that the employer followed
25progressive discipline, by a preponderance of non-hearsay
26evidence in any proceeding brought pursuant to this Act.



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1    (h) In no event shall any of the following actions by an
2employee constitute just cause for termination:
3        (1) an employee's communication about workplace
4    practices or policies, including but not limited to health
5    or safety practices or hazards related to COVID-19, to any
6    person, including to an employer, an employer's agent,
7    other employees, a government agency or the public,
8    including through print, online, social media, or any
9    other media; or
10        (2) an employee's refusal to work under conditions
11    that the employee reasonably believes would expose him or
12    her, other employees or the public to an unreasonable
13    health or safety risk, including but not limited to risk
14    of illness or exposure to COVID-19.
15    An employer shall not retaliate against any employee or
16other person for such conduct. Notwithstanding any other
17provision of law, such conduct shall constitute protected
18conduct and may not be contractually prohibited, or subject to
19civil or criminal sanction or liability.
20    (i) An employer must conduct its own assessment of an
21employee and may not rely on worker data gathered through
22electronic monitoring in discharging, disciplining, or
23promoting an employee. Employment decisions must be made based
24on human-based information sources such as supervisors'
25assessments and documentation or consulting co-workers. An
26employer must disclose in advance to employees any electronic



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1monitoring or data collection at a workplace, disclose the
2purposes for which the data will be used, and provide
3employees meaningful opportunities to challenge any electronic
4monitoring or data systems. However, data gathered through
5electronic monitoring may be used in the following
6circumstances: for non-employment-related purposes; for
7discharging or disciplining an employee in cases of egregious
8misconduct or involving threats to the health or safety of
9other persons; or where required by State or federal law.
10    (j) Employment for a short-term position does not require
11a showing of just cause for discharge, and discharge after a
12short-term position does not entitle an employee to severance
13pay under Section 15. A position shall not be deemed to be a
14short-term position where the employer hires another employee
15to perform substantially the same work within 90 days before
16or after the discharge.
17    Section 15. Severance pay. An employee shall accrue one
18hour of severance pay for every 12.5 hours worked during his or
19her first year of employment, and for every 50 hours worked
20thereafter. Upon discharge, the employer shall pay the
21employee his or her accrued severance pay, calculated based on
22the number of hours accrued multiplied by the employee's rate
23of pay upon discharge. An employee who is discharged at the end
24of a short-term position shall not be entitled to severance
25pay. Severance pay shall be exclusive of final compensation



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1due an employee upon separation under the Illinois Wage
2Payment and Collection Act. For purposes of determining an
3employee's years of employment tenure or seniority, multiple
4periods worked for the employer and any time worked for a
5predecessor employer shall be aggregated.
6    Section 20. Employment through day and temporary labor
7services agencies. Where an employee is employed by a day and
8temporary labor services agency, as defined under the Day and
9Temporary Labor Services Act, to perform work for a
10third-party client, as defined under that Act, both the day
11and temporary labor services agency and the third-party client
12shall be deemed to be the employer of the employee for the
13purposes of this Act. Both shall be jointly and severally
14responsible for compliance with this Act's requirements, and
15neither a third-party client nor a day and temporary labor
16services agency may discharge an employee employed through a
17day and temporary labor services agency without just cause,
18except when done at the end of a short-term position.
19    Section 25. Collective bargaining agreement exemption. The
20requirements of this Act do not apply to employees who are
21covered by a valid collective bargaining agreement.
22    Section 30. Retaliation prohibited. No employer or any
23other person shall threaten, intimidate, discipline,



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1discharge, demote, suspend, or harass an employee, reduce the
2hours or pay of an employee, inform another employer that an
3employee has alleged that the employer violated this Act or
4any other law, discriminate against an employee, or take any
5other adverse action that penalizes an employee for, or is
6reasonably likely to deter an employee from, exercising or
7attempting to exercise any right protected under this Act or
8any other law, including informing other employees or persons
9of their rights under this Act or any other law, assisting in
10any way with any complaint or investigation involving this
11Act, including another workers' case, or sharing information
12about workplace issues with other employees or the public,
13including on social media. Threats or any other adverse action
14related to perceived immigration status or work authorization
15shall constitute threats or adverse actions as those terms are
16used in this Section. An employee need not explicitly refer to
17this Act or any other law or the rights enumerated herein to be
18protected from retaliation. The protections afforded by this
19Section shall apply to any person who mistakenly but in good
20faith alleges violations of this Act.
21    Section 35. Protection of former employees from
22blacklisting. An employer shall not prevent or attempt to
23prevent, by word or writing of any kind, a former employee from
24obtaining employment with any other employer. An employer is
25not prohibited from providing by word or writing any other



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1employer to whom the discharged employee has applied for
2employment a truthful statement of the reason for discharge.
3    Section 40. Notice and posting of rights.
4    (a) The Department shall publish and make available
5notices informing employees of their rights protected under
6this Act. Employers shall post the notices in a conspicuous
7location in the workplace or at any job site, and shall give a
8notice to each employee at the time of hiring and on an annual
9basis. The notices shall be made available in a downloadable
10format on the Department's website in English, Spanish,
11Polish, Mandarin, and Cantonese.
12    (b) In accordance with the rules of the Department, an
13employer shall conspicuously post at any workplace or job site
14where any employee works the notices described in subsection
15(a) that apply to the particular workplace or job site. The
16notices shall be in English and any language spoken as a
17primary language by at least 5% of employees at that location
18if the Department has made the notice available in that
20    Section 45. Recordkeeping.
21    (a) Employers shall retain records documenting their
22compliance with the applicable requirements of this Act for a
23period of 3 years and shall allow the Department access to such
24records and other information, in accordance with applicable



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1law and with appropriate notice, in furtherance of an
2investigation conducted pursuant to this Act. Employers shall
3report annually to the Department, and any person who requests
4a copy of:
5        (1) the employer's total employment each year broken
6    down by full-time employment (defined as at least 30 hours
7    per week), part-time employment (defined as less than 30
8    hours per week), short-term employment, and employment
9    through a temp or staffing agency; and
10        (2) the employer's total number of separations each
11    year broken down by whether the separation was a discharge
12    for cause, a discharge for bona fide economic reasons, a
13    separation as a result of the end of a short-term
14    position, an employee resignation, or an employee
15    retirement.
16    (b) An employer's failure to maintain, retain, or produce
17a record or other information required to be maintained by
18this Section relevant to a material fact alleged by an
19employee in a complaint brought pursuant to this Section or
20requested by the Department pursuant to an investigation
21creates a rebuttable presumption that such fact is true.
22    Section 50. Administrative implementation and enforcement.
23    (a) The Department shall administer and enforce the
24provisions of this Act and shall, within 120 days after its
25effective date, adopt rules necessary to administer and



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1enforce this Act. The rules shall include the procedures for
2investigations and hearings under this Act. The adoption,
3amendment, or rescission of rules shall be in conformity with
4the requirements of the Illinois Administrative Procedure Act.
5    (b) An aggrieved employee or his or her duly authorized
6representative may file a complaint with the Department
7regarding violations by an employer of this Act or of any
8implementing rules. Upon receiving a complaint or on its own
9initiative, the Department shall investigate potential
10violations, make a determination whether a violation has
11occurred, and take appropriate action to enforce the
12provisions of this Act and any implementing rules.
13    (c) If an employer is found by the Department to have
14violated this Act or any rules adopted under this Act, the
15Department shall order the following, in addition to any other
16remedy provided by law:
17        (1) In the case of unlawful discharge, retaliation,
18    blacklisting, or unlawful electronic monitoring, actual
19    and liquidated damages payable to each aggrieved worker
20    equal to the greater of $10,000 or 3 times the actual
21    damages including, but not limited to, unpaid wages,
22    benefits, and other remuneration from the date of
23    discharge, unless an adjudicator finds that mitigating
24    circumstances are present, in which case the adjudicator
25    may order that the preceding liquidated damages amount be
26    reduced as circumstances make appropriate, as well as



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1    reinstatement, restoration of hours, other injunctive
2    relief (including to rectify conditions that led to
3    constructive discharge), punitive damages, and such other
4    remedies as may be appropriate.
5        (2) In the case of discharge where severance pay was
6    not provided, severance pay together with an additional 2
7    times that amount as liquidated damages, and such other
8    remedies as may be appropriate including punitive damages.
9        (3) In the case of failure to provide a timely written
10    explanation for a discharge, injunctive relief and
11    liquidated damages in an amount equal to $5,000, unless an
12    adjudicator finds that mitigating circumstances are
13    present, in which case the adjudicator may order that the
14    preceding liquidated damage amount be reduced as
15    circumstances make appropriate, and such other remedies as
16    may be appropriate, including punitive damages.
17        (4) Payment of a further sum as a civil penalty in an
18    amount of $10,000 for unlawful discharge, retaliation,
19    blacklisting, or unlawful electronic monitoring; in an
20    amount of $5,000 for or failure to provide a timely
21    written explanation for a discharge, or in an amount of
22    $1,000 for other violations of this Act, including the
23    Act's recordkeeping requirements or failure to produce
24    records requested in an investigation. However, if an
25    adjudicator finds that mitigating circumstances are
26    present, the adjudicator may order that the preceding



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1    civil penalty amounts be reduced as circumstances make
2    appropriate. The civil penalties imposed pursuant to this
3    section shall be imposed on a per employee and per
4    instance basis for each violation.
5        (5) Reasonable attorney's fees, expert fees, and other
6    costs. For the purposes of this provision, a complainant
7    shall be deemed to have prevailed and entitled to an award
8    of fees and costs if commencement of a complaint has acted
9    as a catalyst to effect policy change on the part of the
10    respondent, regardless of whether that change has been
11    implemented voluntarily, as a result of a settlement, or
12    as a result of a judgment in such party's favor.
13        (6) In assessing an appropriate remedy, due
14    consideration shall be given to the gravity of the
15    violation, the history of previous violations, and the
16    good faith of the employer.
17        (7) All amounts specified in this Act shall be
18    adjusted annually to keep pace with the rising cost of
19    living as measured by the annual increase in the Consumer
20    Price Index for All Urban Consumers (CPI-U), as calculated
21    by the Bureau of Labor Statistics of the United States
22    Department of Labor.
23        (8) Either party may bring an administrative appeal to
24    enforce, vacate, or modify the order, determination, or
25    other disposition of the Department.
26        (9) No procedure or remedy set forth in this Section



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1    is exclusive or a prerequisite for asserting a claim for
2    relief to enforce any rights under this Act in a court of
3    law.
4        (10) An employer who has been ordered by the
5    Department or ordered by a court to pay back pay unpaid
6    back pay, front pay and benefits, liquidated or punitive
7    damages, or civil penalties, and who fails to seek timely
8    review of such a demand or order as provided for under this
9    Act and who fails to comply within 15 calendar days after
10    such demand or within 35 days of an administrative or
11    court order is entered shall also be liable to pay a
12    penalty to the Department of 20% of the amount found owing
13    and a penalty to the employee of 1% per calendar day of the
14    amount found owing for each day of delay in paying such
15    wages to the employee. All moneys recovered as fees and
16    civil penalties under this Act, except those owing to the
17    affected employee, shall be deposited into the Wrongful
18    Discharge Enforcement Fund, a special fund which is hereby
19    created in the State treasury. Moneys in the Fund may be
20    used only for enforcement of this Act.
21    Section 55. Civil action. Except as otherwise provided by
22law, any person claiming to be aggrieved by an employer's
23violation of this Act has a cause of action in any court and,
24upon prevailing, shall be awarded the relief specified in
25Section 50 and, if the court finds in favor of the plaintiff,



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1it shall award such prevailing party, in addition to other
2relief, his or her reasonable attorney's fees, expert fees,
3and other costs. As used in this Section, "prevailing" party
4includes a party whose commencement of litigation has acted as
5a catalyst to effect policy change on the part of the
6defendant, regardless of whether that change has been
7implemented voluntarily, as a result of a settlement, or as a
8result of a judgment in such party's favor. Penalties and fees
9under this Act may be assessed by the Department and recovered
10in a civil action brought by the Department in any circuit
11court or in any administrative adjudicative proceeding under
12this Act. In any such civil action or administrative
13adjudicative proceeding under this Act, the Department shall
14be represented by the Attorney General.
15    Section 60. Public enforcement action. A relator or
16representative organization may initiate a public enforcement
17action in any court to pursue civil penalties, injunctive
18relief, and declaratory relief, as specified in Section 50, on
19behalf of the Department, for a violation of the provisions of
20this Act affecting the relator and other current or former
21employees, according to the following procedures:
22        (a) The relator or representative organization shall
23    give written notice to the Department of the specific
24    provisions of this Act alleged to have been violated,
25    including the facts and theories to support the alleged



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1    violation. The notice shall be given in such a manner as
2    the Department may prescribe by rule.
3        (b) If the Department intends to investigate the
4    alleged violation, it shall notify the relator or
5    representative organization of its decision within 65
6    calendar days of the postmark date of the notice. Within
7    60 calendar days of that decision, the Department may
8    investigate the alleged violation and take any enforcement
9    action authorized by law. If the Department determines
10    that additional time is necessary to complete the
11    investigation, it may extend the time by not more than 60
12    additional calendar days and shall notify the relator or
13    representative organization of the extension.
14        (c) Notwithstanding any other provision of law, a
15    public enforcement action brought under this Act must be
16    commenced within the limitations period specified in
17    Section 65. The statute of limitations for bringing a
18    public enforcement action under this Act shall be tolled
19    from the date a relator or representative organization
20    files a notice under Section 55 with the Department, or
21    the Department commences an investigation, whichever is
22    earlier.
23        (d) The relator or representative organization may
24    commence a civil action under this Act if the Department
25    determines that no enforcement action will be taken, or if
26    no enforcement action is taken by the Department within



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1    the time limits prescribed.
2        (e) The Department may intervene in an action brought
3    under this Act and proceed with any and all claims in the
4    action as of right within 30 days after the filing of the
5    action, or for good cause, as determined by the court, at
6    any time after the 30-day period after the filing of the
7    action.
8        (f) Civil penalties recovered in a public enforcement
9    action brought under this Act shall be distributed as
10    follows:
11            (1) If the Department does not intervene in the
12        action, 60% to the Department, and 40% to the relator
13        or representative organization, to be distributed to
14        the employees affected by the violation, including a
15        service award that reflects the burdens and risks
16        assumed by the employee or representative organization
17        in prosecuting the action.
18            (2) If the Department does intervene in the
19        action, 70% to the Department, and 30% to the relator
20        or representative organization, to be distributed to
21        the employees affected by the violation, including a
22        service award that reflects the burdens and risks
23        assumed by the employee or representative organization
24        in prosecuting the action.
25            (3) The share of penalties recovered for the
26        Department under this Act shall be used solely to



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1        support the Department's education and enforcement
2        activities, with approximately 25% of these penalties
3        reserved for grants to community organizations for
4        outreach and education about employee rights under
5        this Act.
6        (g) In any public enforcement action commenced under
7    this Act, the court shall allow a prevailing relator or
8    representative organization to recover all reasonable
9    attorneys' fees, expert fees, and other costs. As used in
10    this provision, a "prevailing" relator or representative
11    organization includes a relator or representative
12    organization whose commencement of litigation has acted as
13    a catalyst to effect policy change on the part of the
14    defendant, regardless of whether that change has been
15    implemented voluntarily, as a result of a settlement, or
16    as a result of a judgment in such relator or
17    representative organization's favor.
18        (h) No public enforcement action brought under this
19    Act shall be required to meet class action certification
20    requirements under Part 8 of Article II of the Code of
21    Civil Procedure or Rule 23(a) of the Federal Rules of
22    Civil Procedure.
23        (i) The relator or representative organization may not
24    recover compensatory damages or back pay, or seek
25    reinstatement, in a public enforcement action. But the
26    filing of a public enforcement action does not preclude an



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1    employee from pursuing these remedies in another forum.
2        (j) The right to bring a public enforcement action
3    under this Act shall not be impaired by any private
4    contract.
5    Section 65. Limitation of actions. Notwithstanding any
6other provision of law, an action under this Act must be filed
7within 3 years after the complainant knew or should have known
8of the alleged violation. This limitation period shall be
9tolled for the duration of any state of emergency declared by
10the State or by any city or county in which the action is
12    Section 70. Exemptions and non-preemption. This Act does
14        (1) Apply to any employee who is covered by a valid
15    collective bargaining agreement if such agreement
16    expressly waives the provisions of this Act and provides
17    comparable or superior protections for employees.
18        (2) Preempt, limit, or otherwise affect the
19    applicability of any provisions of any other law, rule,
20    requirement, policy, or standard, other than a collective
21    bargaining agreement, that provides comparable or superior
22    protections for employees to those provided in this Act.
23    Section 75. Violations. An employer that violates this Act



HB3530- 22 -LRB102 14590 JLS 19943 b

1is guilty of a Class A misdemeanor.
2    Section 80. Applicability. This Act applies to
3disciplinary and discharge actions one year after the
4effective date of this Act.
5    Section 95. Severability. The provisions of this Act are
6severable under Section 1.31 of the Statute on Statutes.
7    Section 97. The State Finance Act is amended by adding
8Section 5.935 as follows:
9    (30 ILCS 105/5.935 new)
10    Sec. 5.935. The Wrongful Discharge Enforcement Fund.
11    Section 99. Effective date. This Act takes effect January
121, 2022.