1. What legal protection does Illinois provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
Illinois recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates a clearly mandated public policy. An employee has a cause of action in other words, the employee may sue for retaliatory discharge when the motivation for the discharge violates public policy
To determine what constitutes public policy, Illinois courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because an Illinois statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening public policy. In both situations, employees are protected from retaliatory discharge.
It is worth keeping in mind three important limitations to the public policy exception. First, the public policy must serve the interests of the public at large rather than private interests (hence the term public policy). Second, Illinois courts have limited the common law public policy exception to situations in which an employee has no statutory remedy (for a list of statutory protections, see below). Thus, because of the recently enacted Whistleblower Act, whistleblowers likely must rely exclusively on that statute. Third, Illinois courts limit the public policy exception to discharges only. For all other forms of retaliation such as a demotion employees are out of luck (unless there is a specific statutory protection).
In addition, the Illinois General Assembly has adopted statutory protections for certain activities. Notably, Illinois has a general whistleblower protection statute (the recently enacted Whistleblower Act) that protects employees who disclose illegal conduct to government officials or refuse to participate in illegal activities. Also, several other Illinois statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, occupational safety and health, toxic substances, and workers' compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that violates a clearly mandated public policy. Specifically, Illinois courts have protected the following employee activities:
- Filing a workers' compensation claim (includes workers' compensation claims filed against previous employers)
- Testifying in a workers' compensation proceeding on behalf of a co-worker
- Refusing to commit an illegal act
- Reporting misconduct by an employer (but see Important Note below)
- Cooperating in a criminal investigation targeting an employer or co-worker
Important Note: Historically, under the common law, Illinois courts have protected both whistleblowers who report unlawful activity to outside public bodies and whistleblowers who report unlawful activity internally to supervisors. However, an employee should consider the recently enacted Whistleblower Act (see below), which only protects whistleblowers who report unlawful activity to outside public bodies, such as a government or law enforcement agency. Moreover, it is likely that the Whistleblower Statute displaces the common law protections for whistleblowing, meaning that whistleblowers would be well advised to make their disclosures to a government or law enforcement agency, and not solely to a supervisor.
General Whistleblower Protection: Under Illinois' Whistleblower Act, employees are protected under three separate provisions:
- An employee may not be retaliated against for disclosing suspected violations of state or federal law to a government or law enforcement agency. The employee's suspicion does not need to actually be true, nor is the employee required to prove conclusively that the violation happened. Rather, the employee needs to only have reasonable cause to believe that a violation had occurred. Note, however, that the disclosure must be made to a government or law enforcement agency: disclosures to other persons (such as a supervisor or the media) are not protected under the statute. 740 Ill. Comp. Stat. 174/15.
- Also, an employee may not be retaliated against for refusing to participate in an activity that violates state or federal law. 740 Ill. Comp. Stat. 174/20.
- In addition, employers are prohibited from adopting policies that prevent employees from disclosing suspected violations of state or federal law to a government or law enforcement agency. 740 Ill. Comp. Stat. 174/10.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing suspected unlawful discrimination or sexual harassment in employment. An employee does not need to prove that unlawful discrimination (or sexual harassment) actually occurred only that she reasonably (and in good faith) believed that unlawful discrimination (or sexual harassment) was taking place. Nor may an employee be discharged in retaliation for making a charge, filing a complaint, testifying, assisting, or participating in a public investigation, proceeding, or hearing under the Illinois Human Rights Act (IHRA). The IHRA prohibits discrimination in employment on the basis of race, color, religion, national origin, ancestry, age, sex, marital status, handicap, military status, sexual orientation, and unfavorable discharge from military service. In certain cases, discrimination on the basis of arrest record is also prohibited. 775 Ill. Comp. Stat. 5/6-101.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising any rights under Illinois' Safety Inspection and Education Act, a law concerning occupational safety and health. 820 Ill. Comp. Stat. 220/2.2.
Toxic Substances: An employee may not be discharged (or discriminated against) in retaliation for making a claim, file a complaint or action, testifying in a proceeding, or exercising any rights under the Illinois Toxic Substances Disclosure to Employees Act. Under that Act, an employee has the right to know about any toxic substances with which the employee works. 820 Ill. Comp. Stat. 255/14.
Workers' Compensation: An employee may not be discharged (or interfered with) in retaliation for exercising rights and remedies granted to the employee under Illinois' Workers' Compensation Act. 820 Ill. Comp. Stat. 305/4(h).
3. How do I file a whistleblower or retaliation claim in Illinois?
Generally: An employee may file a retaliatory discharge lawsuit in an appropriate court. The lawsuit must be filed within 5 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.
General Whistleblower Protection: An employee may file a lawsuit in an appropriate court. Employees may receive reinstatement, back pay (with interest), and compensation for other damages (including litigation costs). If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the Illinois Department of Human Rights (IDHR). A complaint must be filed in writing within 180 days of the retaliatory action. If you believe you have a claim, you should contact IDHR immediately. IDHR has made an intake questionnaire available on their web site in PDF form: Complainant Information Sheet. IDHR has offices in Chicago, Springfield, and Marion. Contact information for each office is listed on the IDHR web site.
Occupational Safety and Health: An employee may file a complaint with the Illinois Department of Labor. The complaint must be filed within 30 days of the retaliatory action. The Department of Labor will investigate and may pursue legal action against your employer. If you believe you have a claim, you should contact the Department of Labor immediately. The Department of Labor maintains offices in Chicago, Springfield, and Marion. Contact information for each office is available on the Department of Labor's web site.