HB3213ham001 104TH GENERAL ASSEMBLY

Rep. Anna Moeller

Filed: 4/8/2025

10400HB3213ham001 LRB104 08712 SPS 24953 a

AMENDMENT TO HOUSE BILL 3213

AMENDMENT NO. ______. Amend House Bill 3213 by replacing everything after the enacting clause with the following:

"Section 5. The Illinois Freedom to Work Act is amended by changing Sections 5, 10, and 15 as follows:

(820 ILCS 90/5)

Sec. 5. Definitions. In this Act:

"Adequate consideration" means (1) the employee worked for the employer for at least 2 years after the employee signed an agreement containing a covenant not to compete or a covenant not to solicit or (2) the employer otherwise provided consideration adequate to support an agreement to not compete or to not solicit, which consideration can consist of a period of employment plus additional professional or financial benefits or merely professional or financial benefits adequate by themselves.

"Covenant not to compete" means an agreement between an employer and an employee that is entered into after the effective date of this amendatory Act of the 102nd General Assembly that restricts the employee from performing the following work post-employment:

(1) any work for another employer for a specified period of time;

(2) any work in a specified geographical area; or

(3) work for another employer that is similar to employee's work for the employer included as a party to the agreement.

"Covenant not to compete" also means an agreement between an employer and an employee, entered into after the effective date of this amendatory Act of the 102nd General Assembly, that by its terms imposes adverse financial consequences on the former employee if the employee engages in competitive activities after the termination of the employee's employment with the employer.

"Covenant not to compete" does not include (1) a covenant not to solicit, (2) a confidentiality agreement or covenant, (3) a covenant or agreement prohibiting use or disclosure of trade secrets or inventions, (4) invention assignment agreements or covenants, (5) a covenant or agreement entered into by a person purchasing or selling the goodwill of a business or otherwise acquiring or disposing of an ownership interest, (6) clauses or an agreement between an employer and an employee requiring advance notice of termination of employment, during which notice period the employee remains employed by the employer and receives compensation, or (7) agreements by which the employee agrees not to reapply for employment to the same employer after termination of the employee, or (8) a covenant or agreement restricting the employee during the employee's current employment, including during a subsequent option period.

"Covenant not to solicit" means an agreement that is entered into after the effective date of this amendatory Act of the 102nd General Assembly between an employer and an employee that (1) restricts the employee from soliciting for employment the employer's employees or (2) restricts the employee from soliciting, for the purpose of selling products or services of any kind to, or from interfering with the employer's relationships with, the employer's clients, prospective clients, vendors, prospective vendors, suppliers, prospective suppliers, or other business relationships.

"Earnings" means the compensation, including earned salary, earned bonuses, earned commissions, or any other form of taxable compensation, reflected or that is expected to be reflected as wages, tips, and other compensation on the employee's IRS Form W-2 plus any elective deferrals not reflected as wages, tips, and other compensation on the employee's IRS Form W-2, such as, without limitation, employee contributions to a 401(k) plan, a 403(b) plan, a flexible spending account, or a health savings account, or commuter benefit-related deductions.

"Employee" means any individual permitted to work by an employer in an occupation.

"Employer" has the meaning given to such term in subsection (c) of Section 3 of the Minimum Wage Law. "Employer" does not include governmental or quasi-governmental bodies.

"Construction" means any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, wrecking, painting, decorating, demolishing, and adding to or subtracting from any building, structure, highway, roadway, street, bridge, alley, sewer, ditch, sewage disposal plant, water works, parking facility, railroad, excavation or other structure, project, development, real property or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to, or fabrication into, any structure, project, development, real property or improvement herein described of any material or article of merchandise.

"Athletic competition" means a contest or event where athletes or teams compete against each other, based on specific rules, to demonstrate their skills.

"Health care facility" means a hospital or hospital affiliate licensed under the Hospital Licensing Act or an ambulatory surgical treatment center as defined in the Ambulatory Surgical Treatment Center Act.

"Health care worker" has the meaning given to that term in Section 5 of the Health Care Violence Prevention Act.

"Option period" means a provision in an employment agreement for work performed in performing arts or athletic competition that gives an employer the right, for a defined period of time, to negotiate with an employee for an extension of a current employment agreement or to enter into a subsequent employment agreement.

"Performing arts" includes, but is not limited to, live or prerecorded theatrical, musical, or dance performances, motion pictures, and television programs.

"Post-employment" means the period after the current employment, including any option periods, has concluded

(Source: P.A. 102-358, eff. 1-1-22.)

(820 ILCS 90/10)

Sec. 10. Prohibiting covenants not to compete and covenants not to solicit.

(a) Before January 1, 2026, no No employer shall enter into a covenant not to compete with any employee unless the employee's actual or expected annualized rate of earnings exceeds $75,000 per year. On and after January 1, 2026, no employer shall enter into a covenant not to compete with any employee, unless the employee is a health care worker who does not work under a contract of employment with a health care facility and the employee's actual or expected annualized rate of earnings exceeds $75,000 per year. This amount shall increase to $80,000 per year beginning on January 1, 2027, $85,000 per year beginning on January 1, 2032, and $90,000 per year beginning on January 1, 2037. A covenant not to compete entered into in violation of this subsection is void and unenforceable.

(b) Before January 1, 2026, no No employer shall enter into a covenant not to solicit with any employee unless the employee's actual or expected annualized rate of earnings exceeds $45,000 per year. On and after January 1, 2026, no employer shall enter into a covenant not to solicit with any employee, unless the employee is a health care worker who does not work under a contract of employment with a health care facility and the employee's annualized rate of earnings exceeds $45,000 per year. This amount shall increase to $47,500 per year beginning on January 1, 2027, $50,000 per year beginning on January 1, 2032, and $52,500 per year beginning on January 1, 2037. A covenant not to solicit entered into in violation of this subsection is void and unenforceable.

(c) (Blank). No employer shall enter into a covenant not to compete or a covenant not to solicit with any employee who an employer terminates or furloughs or lays off as the result of business circumstances or governmental orders related to the COVID-19 pandemic or under circumstances that are similar to the COVID-19 pandemic, unless enforcement of the covenant not to compete includes compensation equivalent to the employee's base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement. A covenant not to compete or a covenant not to solicit entered into in violation of this subsection is void and unenforceable.

(d) A covenant not to compete is void and illegal with respect to individuals covered by a collective bargaining agreement under the Illinois Public Labor Relations Act or the Illinois Educational Labor Relations Act.

(e) A covenant not to compete or a covenant not to solicit is void and illegal with respect to individuals employed in construction, regardless of whether an individual is covered by a collective bargaining agreement. This subsection (e) does not apply to construction employees who primarily perform management, engineering or architectural, design, or sales functions for the employer or who are shareholders, partners, or owners in any capacity of the employer.

(f) Any covenant not to compete or covenant not to solicit entered into after January 1, 2025 (the effective date of Public Act 103-915) shall not be enforceable with respect to the provision of mental health services to veterans and first responders by any licensed mental health professional in this State if the enforcement of the covenant not to compete or covenant not to solicit is likely to result in an increase in cost or difficulty for any veteran or first responder seeking mental health services.

For the purpose of this subsection:

"First responders" means any persons who are currently or formerly employed as: (i) emergency medical services personnel, as defined in the Emergency Medical Services (EMS) Systems Act, (ii) firefighters, and (iii) law enforcement officers.

"Licensed mental health professional" means a person licensed under the Clinical Psychologist Licensing Act, the Clinical Social Work and Social Work Practice Act, the Marriage and Family Therapy Licensing Act, the Nurse Practice Act, or the Professional Counselor and Clinical Professional Counselor Licensing and Practice Act.

(g) Any covenant not to compete or covenant not to solicit entered into after the effective date of this amendatory Act of the 104th General Assembly shall not be enforceable with respect to the provision of reproductive health care or maternity care by a health care professional in this State if (i) a medical practice or health care facility limits or eliminates maternal or reproductive health services or (ii) a medical practice or health care facility is purchased and the buyer limits or eliminates maternal or reproductive health services. In an action to enforce a covenant not to compete or covenant not to solicit entered into after the effective date of this amendatory Act of the 104th General Assembly, a medical practice or health care facility that has limited or eliminated maternal or reproductive health services and that is seeking to enforce the covenant not to compete or the covenant not to solicit, or the buyer of a medical practice or health care facility that limits or eliminates maternal or reproductive health services and that is seeking to enforce the covenant not to compete or the covenant not to solicit, has the burden of proving that it will not reduce the availability of reproductive health care or maternity care in this State within a 50-mile radius from the location of the medical practice or health care facility.

As used in this subsection, health care professional", "maternity care", and "reproductive health care" have the meaning given to those terms in Section 1-10 of the Reproductive Health Act.

(Source: P.A. 102-358, eff. 1-1-22; 103-915, eff. 1-1-25; 103-921, eff. 1-1-25; 103-1062, eff. 2-7-25.)

(820 ILCS 90/15)

Sec. 15. Enforceability of a covenant not to compete or a covenant not to solicit.

(a) A covenant not to compete or a covenant not to solicit entered into on or after January 1, 2026 is illegal and void regardless of where and when the covenant not to compete or the covenant not to solicit was entered into unless the covenant otherwise complies with the requirements of Section 10.

(b) A covenant not to compete or a covenant not to solicit entered into before January 1, 2026 is illegal and void unless (1) the employee receives adequate consideration, (2) the covenant is ancillary to a valid employment relationship, (3) the covenant is no greater than is required for the protection of a legitimate business interest of the employer, (4) the covenant does not impose undue hardship on the employee, and (5) the covenant is not injurious to the public, and (6) the covenant otherwise complies with the requirements of Section 10.

(c) An employer or former employer shall not attempt to enforce a contract that is void and unenforceable under this Act regardless of whether the contract was signed and the employment was maintained outside of this State.

(Source: P.A. 102-358, eff. 1-1-22.)

(820 ILCS 90/7 rep.)

(820 ILCS 90/20 rep.)

(820 ILCS 90/35 rep.)

Section 10. The Illinois Freedom to Work Act is amended by repealing Sections 7, 20, and 35.

Section 99. Effective date. This Act takes effect January 1, 2026.".