The Law Q&A | Fired up about being fired | Columns

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When has a fired employee suffered an illegal retaliatory discharge, and are there exceptions to such firing?

If you’ve been fired by your employer, you might have a common law retaliatory discharge claim if you prove 1) you have, in fact, been actually fired; 2) in retaliation for your activities; and 3) the firing violates a clear mandate of public policy.

Generally, common law retaliatory firing claims are available only to at-will employees — employees whose employment has a nonspecific duration that can be terminated at any time for no reason (other than illegal retaliation). Fixed-term employees are ones who have an agreement with the employer to work for a fixed amount of time (except under union collective-bargaining agreements — those fixed-term employees could have retaliatory discharge rights if those was negotiated in the contract).

The policy is that with a contract for term, the employee is typically protected from willy-nilly firing anyway since the firing has to typically be for a specific cause.

What might be a violation of a clear mandate of public policy? To determine what constitutes public policy, Illinois courts look to statutes and constitutional provisions that give rights to the public at-large (the right to collect workers’ compensation benefits), or that are prohibited activities (criminal laws prohibiting perjury). Thus, an employer who fires an employee who filed a workers’ compensation claim, or who refuse to perjure themselves, would be contravening public policy and is liable for retaliatory discharge.

However, Illinois courts have generally been stingy in what is a violation of a “clear mandate of public policy.” thereby making retaliatory discharge suits tough to win.

Getting fired for reporting illegal actives is specifically protected. The Illinois legislature passed The Whistleblower Act in 1991 where employers are prohibited from firing an employee (at-will or fixed term) in retaliation for the employee’s reporting to a government agency any illegal activity, whether committed by the employer or a third party, or for the employee refusing to participate in any illegal activity.

Under the act, merely the threat of firing or inflicting some other punishment (reassignment or demotion, for example) is also prohibited.

If an employee establishes a violation of the act, he/she can get back pay, seniority reinstatement, plus reasonable attorney fees and legal costs incurred by the employee in making a claim. And, by the way, for you employers out there, Whistleblower violations are also a criminal act subjecting you to fines and jail.

A major exception of the application of retaliation claims are religious organizations. The U.S. Supreme Court has ruled that religious employers are protected from employment discrimination laws because of the 1st Amendment right to freedom of religion.

But the exempted employee in question must be one central to advancing the religious institution, such as a minister or a teacher.

Picking up on such precedent, the Illinois Supreme Court has ruled such employees of such religious employers cannot make a claim under the Illinois Whistleblower Act.

Courts have thus said that employment laws of Caesar must tiptoe lightly around the laws of God.

For employers defending retaliation claims, it may be a matter of trust the judge and pray to God.

For employees bringing such claims, it may be a matter of trust in God and pray for the judge.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St.,

Champaign, IL 61820.

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