Background

In Illinois, employment is presumptively “at will,” meaning that, absent a written contract, the employee or employer may end the relationship at any time, with or without notice, and for any reason as long as the reason is not illegal.

Beginning in 1978, the Illinois Supreme Court began recognizing an exception to the at-will principle called “retaliatory discharge.” Retaliatory discharge is a common law tort in which an employee alleges that he was discharged for certain activities and that the discharge therefore violates a “clear mandate of public policy.”

Much of the retaliatory discharge litigation in Illinois has been over what constitutes “a clear mandate of public policy.” Such a mandate has been found where employees have been discharged for fi ling a workers’ compensation claim, assisting with a criminal investigation or refusing to violate the law, or for “whistleblowing.”

However, courts generally have declined to recognize retaliatory discharge claims where the cited public policy is associated with social or economic regulation rather than public health and safety, or where the claim involves private and individual grievances rather than what affects citizens collectively. Examples of where a clear mandate of public policy was not found include discharge for fi ling a claim for wages due under the Illinois Wage Payment and Collection Act, and for exercising rights under the federal Family and Medical Leave Act. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130 (1981); McGrath v. CCC Information Servs., Inc., 314 Ill. App. 3d 431, 440 (1st Dist. 2000).

Recent Decisions

Two recent decisions suggest a favorable reception for Illinois plaintiffs bringing new forms of retaliatory discharge claims.

In Carty v. The Suter Co., Inc., No. 03-L-45, 2007 WL 529914 (1st Dist. Feb. 14, 2007), an Illinois appellate court held that an employee could claim retaliatory discharge where he allegedly was fi red for complaining to his plant manager that he was not receiving his lunch break, in violation of Illinois’ One Day Rest in Seven Act. The court reasoned that because the law requires such lunch breaks, “we are not declaring public policy; the legislature already has done so.”

The court did not explain how Carty’s complaint about his lunch breaks affects the citizens of the State collectively, or implicates concerns beyond his individual grievance.

The court said that “to disallow plaintiff’s claim based on this statute would be to relieve defendant of its obligations under it.” However, the court did not mention the enforcement measures already written into the One Day Rest in Seven Act, or explain why these measures are insuffi cient to enforce the company’s obligations under the Act.

In Daoust v. Abbott Labs., No. 05 C 6018, 2007 WL 118414 (N.D. Ill. Jan. 11, 2007), a federal district court made a preliminary determination that an employee allegedly terminated for complaining that he was “subjected to physically threatening behavior by a subordinate employee” stated a claim for retaliatory discharge. The court cited a number of Illinois statutes designed to protect citizens’ safety, including in the workplace, and reasoned that allowing employers to discharge employees because they reported an incident of workplace violence “would directly contravene Illinois’ efforts at promoting and protecting violencefree work environments, to the detriment of Illinois’ working citizenry.”

Impact on Employers

Most employers are aware that employees may not be discharged in retaliation for reporting discrimination or harassment or for fi ling a workers’ compensation claim. However, the Carty and Daoust decisions have expanded the tort of retaliatory discharge to insulate employees from discharge for complaints not previously considered legally protected. To prevent and defend against potential claims, employers should review any contemplated discharge carefully to ascertain whether the employee has recently made any arguably protected complaints and to ensure that the motivation for the action is not retaliatory.

If you have questions about retaliatory discharge claims, please call Alison Maki (312-609-7720) or any other Vedder Price attorney with whom you have worked.