Confidentiality agreements are the workhorse of business protection. But there is a category of speech that no Illinois confidentiality provision can reach and amendments that took effect on January 1, 2026 expanded it substantially. Employers whose forms have not been updated are carrying a problem they may not know about.
Illinois Whistleblower Act Basics
The Illinois Whistleblower Act regulates confidentiality and non-disparagement provisions tied to unlawful employment practices. 820 ILCS 96/1-20, 1-25(a). The core rule is straightforward: a confidentiality agreement cannot bar an individual from reporting unlawful conduct to government authorities and cannot bar an individual from making truthful statements about alleged unlawful employment practices.
That principle is not new. What changed on January 1, 2026 is its reach. The amendments expanded the Act to encompass any employment law violations enforced by agencies including the Illinois Department of Labor, OSHA, and the National Labor Relations Board. The universe of protected reporting is now considerably larger than it was.
The state has an interest in learning about unlawful conduct. That interest does not yield to a contract between an employer and an employee. A company can protect its secrets. But it cannot purchase silence about whether it broke the law.
Revising Your Forms
Most confidentiality agreements in circulation were drafted to be broad — every category of information, every recipient, no exceptions, because exceptions look like loopholes. This is already problematic from a trade secrets perspective. Now this instinct is a greater liability in Illinois. A covenant that on its face prohibits an employee from disclosing “any information concerning the Company” to “any third party” purports to prohibit exactly what the statute protects.
The fix is not to narrow what you protect. It is to carve out what you cannot protect. A properly drafted Illinois confidentiality provision should expressly state that nothing in it prevents the individual from reporting suspected violations to a government agency, from participating in an agency investigation, or from making truthful statements about alleged unlawful employment practices. The carve-out preserves the covenant’s enforceability as to everything else while acknowledging the limit the law already imposes.
The same discipline applies to separation agreements, settlement agreements, and non-disparagement clauses.
So What?
Audit every confidentiality and non-disparagement form now. The January 1, 2026 expansion is broad enough that pre-2026 language may no longer be adequate. Employment agreements, NDAs, separation agreements, settlement agreements, contractor agreements, and handbook provisions all deserve review.
Add the carve-out expressly. Do not rely on a court reading the statutory exception into an otherwise unqualified prohibition. State plainly that the agreement does not restrict reporting to government authorities, participating in investigations, or making truthful statements about alleged unlawful employment practices.
Understand the scope of the expansion. The Act now reaches employment law violations enforced by agencies including the Illinois Department of Labor, OSHA, and the NLRB. If your form was drafted against a narrower conception of protected reporting, it is out of date.
Do not conflate confidential information with lawful conduct. The Act protects reporting and truthful statements about alleged unlawful practices. It does not license disclosure of trade secrets, customer lists, source code, or pricing. Your covenant can — and should — continue to protect those categories vigorously. Clarity about the boundary strengthens both sides of the document.
Separate your protections by purpose. Trade secret and confidential business information covenants serve one function; provisions touching on workplace conduct serve another. Drafting them separately makes it easier to keep the second compliant without weakening the first.
Remember the ITSA still has your back on secrets. The Illinois Trade Secrets Act preserves contractual remedies for breach of a confidentiality obligation and provides that a duty to maintain secrecy is not unenforceable merely for lacking durational or geographic limits. 765 ILCS 1065/8(b)(1). A confidentiality covenant with proper statutory carve-outs remains a powerful instrument.
Overbreadth invites challenge to the whole provision. A covenant that plainly purports to prohibit protected reporting hands the other side an argument about the entire agreement. Precision is a defensive measure, not a concession.
Illinois has not made confidentiality agreements harder to enforce. It has drawn a line around one category of speech and, as of January 2026, drawn it wider. Employers who redraft around that line keep everything they actually need to protect. Employers who ignore it are relying on language the state has already declared unenforceable — and finding out during litigation is an expensive way to learn.
David Seidman is the principal and founder of Seidman Law Group, LLC. He serves as outside general counsel for companies, which requires him to consider a diverse range of corporate, dispute resolution and avoidance, contract drafting and negotiation, real estate, and other issues. He can be reached at david@seidmanlawgroup.com or 312-399-7390.
This blog post is not legal advice. Please consult an experienced attorney to assist with your legal issues.
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