The Illinois Appellate Court held that a health care worker, who was discharged after reporting an activity she reasonably believed to be in violation of the Nursing Home Care Act to her superior, has a cause of action based on the common law prohibition against retaliatory discharge. Callahan v. Edgewater Care & Rehabilitation Center, Inc., No. 1-06-3178 (July 3, 2007).

The plaintiff, Melissa Callahan, worked as an admissions clerk in a nursing home operated by the defendant, Edgewater Care & Rehabilitation Center (“Edgewater”). Edgewater discharged the plaintiff after she reported both to her superior and the nursing home’s administrator that a resident of the home was being kept in the facility against her will. The plaintiff reasonably believed that such activity was in violation of the Illinois Nursing Home Care Act. After her discharge, Callahan sought relief for the common-law tort of retaliatory discharge, instead of filing a claim under the Illinois Whistleblower Act, which Illinois enacted in 2004.

Edgewater sought to dismiss the plaintiff’s action on the grounds that her common-law claim had been preempted by the Whistleblower Act. Edgewater argued that because the statute only protects an employee who reports illegal or improper activity to governmental or law enforcement officials, the common-law protection for an employee who reports illegal or improper activities to non-governmental or law enforcement officials is no longer valid. The lower court agreed with Edgewater and dismissed the plaintiff’s claim.

On appeal, the Illinois Appellate Court reversed holding that reporting illegal or improper activity to someone other than governmental or law enforcement officials is protected under the common law prohibition against retaliatory discharge. The Court found that the Whistleblower Act was not intended as an exclusive remedy or to abolish common-law actions. Neither the language in the statute nor its legislative history illustrates any intent to preempt common-law claims. The Court went on to state that a statutory enactment should not be construed as taking away the pre-existing common-law right unless the pre-existing right is so repugnant to the statute that the survival or the common-law right would deprive the statute’s efficacy and render its provisions nugatory. In short, the Court held that the pre-existing common-law right of action is not preempted by the newly-enacted statute if the common-law right is not in conflict with the statute.

Employers should be extremely cautious in terminating an employee who has recently complained to his or her employer, even if such complaint seems trivial. The reason for the action should be well documented and it should be clear that the employee’s complaint was unrelated to the termination.