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Full Text of SB1760  100th General Assembly




State of Illinois
2017 and 2018


Introduced 2/9/2017, by Sen. Pat McGuire


New Act

    Creates the Wrongful Discharge from Employment Act. Provides that a discharge from employment is wrongful if it (1) was a constructive discharge, (2) was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy, (3) was not for good cause and the employee had completed the employer's probationary period for employment, or (4) the employer violated the express provisions of its written personnel policy. Provides remedies for wrongful discharge. Authorizes civil actions and provides for arbitration. Prohibits blacklisting. Defines terms. Provides that an employer that violates the Act is guilty of a Class A misdemeanor.

LRB100 09213 JLS 19369 b






SB1760LRB100 09213 JLS 19369 b

1    AN ACT concerning employment.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Wrongful Discharge from Employment Act.
6    Section 5. In this Act:
7    "Constructive discharge" means the voluntary termination
8of employment by an employee because of a situation created by
9an act or omission of the employer that an objective,
10reasonable person would find so intolerable that voluntary
11termination is the only reasonable alternative.
12     "Discharge" includes a constructive discharge and any
13other termination of employment, including resignation,
14elimination of the job, layoff for lack of work, failure to
15recall or rehire, and any other cutback in the number of
16employees for a legitimate business reason.
17    "Employee" means any person who works for another for hire,
18but does not include a person who is an independent contractor
19as defined under Section 212 of the Unemployment Insurance Act.
20    "Employer" means anyone who engages an employee to do
21something for the benefit of the employer or a third person and
22includes a municipality or other governmental unit or agency,
23the State, and any political subdivision of them.



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1    "Fringe benefits" means the value of any employer-paid
2vacation leave, sick leave, medical insurance plan, disability
3insurance plan, life insurance plan, annuity, and pension
4benefit plan in effect on the date of termination.
5     "Good cause" means reasonable job-related grounds for
6dismissal based on employee misconduct, an employee's failure
7to satisfactorily perform job duties, or other legitimate
8business reason.
9     "Grossly negligent conduct" means conduct that is
10performed when the individual is, or reasonably should be,
11aware of a substantial risk that the conduct will result in the
12harm sought to be prevented and the conduct constitutes a
13substantial deviation from the standard of care a reasonable
14person would exercise in the situation.
15     "Lost wages" means the gross amount of wages that would
16have been reported to the Internal Revenue Service as gross
17income on form W-2 and includes additional compensation
18deferred at the option of the employee.
19    "Misconduct" means the following work related
21        (1) Falsification of an employment application or any
22    other documentation provided to the employer to obtain
23    employment through subterfuge.
24        (2) Failure to maintain licenses, registrations, and
25    certifications reasonably required by the employer or
26    those that the individual is required by law to possess to



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1    perform his or her regular job duties, unless the failure
2    is not within the control of the individual.
3        (3) Knowing, repeated violation of the attendance
4    policies of the employer that are in compliance with State
5    and federal law following written warning for an attendance
6    violation, unless the individual can demonstrate that he or
7    she has made a reasonable effort to remedy the reason or
8    reasons for the violations or that the reason or reasons
9    for the violations were out of the individual's control.
10    Attendance policies of the employer shall be reasonable and
11    provided to the individual in writing, electronically, or
12    via a posting in the workplace.
13        (4) Damaging the employer's property through conduct
14    that is grossly negligent.
15        (5) Refusal to obey the employer's reasonable and
16    lawful instruction, unless refusal is due to the lack of
17    ability, skills, or training for the individual required to
18    perform the instruction or the instruction would result in
19    an unsafe act.
20        (6) Knowingly consuming alcohol or illegal or
21    non-prescribed prescription drugs or using an impairing
22    substance in an off-label manner on the employer's premises
23    during working hours in violation of the employer's
24    policies.
25        (7) Reporting to work under the influence of alcohol,
26    illegal or non-prescribed prescription drugs, or an



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1    impairing substance used in an off-label manner in
2    violation of the employer's policies, unless the
3    individual is compelled to report to work by the employer
4    outside of scheduled and on-call working hours and informs
5    the employer that he or she is under the influence of
6    alcohol, illegal or non-prescribed prescription drugs, or
7    an impairing substance used in an off-label manner in
8    violation of the employer's policies.
9        (8) Grossly negligent conduct endangering the safety
10    of the individual or co-workers.
11    "Public policy" means a policy in effect at the time of
12discharge established by constitutional provision, statute, or
13administrative rule.
14    Section 10. Employee to be furnished on demand with reason
15for discharge.
16    (a) It is the duty of the employer after having discharged
17any employee from service, upon demand by the discharged
18employee, to furnish the discharged employee in writing a
19statement of reasons for the discharge. If the employer fails
20to furnish the statement of the reasons for discharge within a
21reasonable time after the demand, the employer shall be subject
22to the penalties and damages prescribed in this Act.
23    (b) A response to the demand may be modified at any time
24and may not limit the employer's ability to present a full
25defense in any action brought by the discharged employee.



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1Failure to provide a response as required under this Section
2does not limit the employer's ability to present a full defense
3in any action brought by the discharged employee.
4    Section 15. Protection of discharged employees. If the
5employer, after having discharged an employee from service,
6prevents or attempts to prevent, by word or writing of any
7kind, the discharged employee from obtaining employment with
8any other employer, the discharging employer is punishable as
9provided in Section 45 and is liable in punitive damages to the
10discharged person, to be recovered by civil action. An employer
11is not prohibited from informing by word or writing any other
12employer to whom the discharged employee has applied for
13employment a truthful statement of the reason for discharge.
14Notwithstanding the foregoing, an employer shall be prohibited
15from furnishing any statement of the reasons for discharge to
16another employer if the discharging employer has not furnished
17a written statement of the reasons for discharge to the
18discharged employee as provided in Section 10.
19    Section 20. Blacklisting prohibited.
20    (a) If an employer in this State authorizes or allows any
21of its agents to blacklist or if an employer does blacklist any
22discharged employee or attempts by word or writing or any other
23means to prevent any discharged employee or any employee who
24may have voluntarily left the company's service from obtaining



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1employment with another employer, except as provided for in
2Section 15, the employer is liable in punitive damages to the
3employee prevented from obtaining employment, to be recovered
4in a civil action, and is also punishable as provided in
5Section 45.
6    Section 25. Wrongful discharge.
7    (a) A discharge is wrongful if it (1) was a constructive
8discharge, (2) was in retaliation for the employee's refusal to
9violate public policy or for reporting a violation of public
10policy, (3) was not for good cause and the employee had
11completed the employer's probationary period for employment,
12or (4) the employer violated the express provisions of its
13written personnel policy.
14    (b) During a probationary period of employment, which may
15not exceed 90 days, the employment may be terminated at the
16will of either the employer or the employee on notice to the
17other for any reason or for no reason. If an employer does not
18establish a specific probationary period or provide that there
19is no probationary period prior to or at the time of hire,
20there is a probationary period of 90 days after the date of
22    Section 30. Remedies.
23    (a) A discharged employee may bring a civil action against
24the employer for all relief necessary to make the discharged



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1employee whole including, but not limited to, the following, as
3        (1) reinstatement with the same seniority status that
4    the discharged employee would have had but for the
5    violation;
6        (2) lost wages with interest and fringe benefits; and
7        (3) compensation for any damages sustained as a result
8    of the violation, including litigation costs, expert
9    witness fees, and reasonable attorney's fees.
10    (b) A party may make a written offer to arbitrate a dispute
11that otherwise could be adjudicated under this Act. If a
12complaint is filed under this Act, the offer to arbitrate must
13be made within 60 days after service of the complaint and must
14be accepted in writing within 30 days after the date the offer
15is made. A discharged employee who makes a valid offer to
16arbitrate that is accepted by the employer and who prevails in
17such arbitration is entitled to have the arbitrator's fee and
18all costs of arbitration paid by the employer. If a valid offer
19to arbitrate is made and accepted, the arbitration is the
20exclusive remedy for the wrongful discharge dispute and there
21is no right to bring or continue a lawsuit under this Act. The
22arbitrator's award is final and binding. A party who makes a
23valid offer to arbitrate that is not accepted by the other
24party and who prevails in an action under this Act is entitled,
25as an element of costs, to reasonable attorney fees incurred
26subsequent to the date of the offer.



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1    Section 35. Limitation of actions.
2    (a) Except as provided under subsection (b), an action
3under this Act must be filed within one year after the date of
5    (b) If an employer maintains written internal procedures
6other than those described in subsection (c) under which a
7discharged employee may appeal a discharge within the
8organizational structure of the employer, the discharged
9employee shall first exhaust those procedures prior to filing
10an action under this Act. The discharged employee's failure to
11initiate or exhaust available internal procedures is a defense
12to an action brought under this Act. If the employer's internal
13procedures are not completed within 90 days after the date the
14discharged employee initiates the internal procedures, the
15discharged employee may file an action under this Act and, for
16the purposes of this Section, the employer's internal
17procedures are considered exhausted. The limitation period in
18subsection (a) does not commence until the procedures are
19exhausted. In no case may the provisions of the employer's
20internal procedures extend the limitation period in subsection
21(a) more than 120 days.
22    (c) If an employer maintains written internal procedures
23under which a discharged employee may appeal a discharge within
24the organizational structure of the employer, the employer
25shall within 7 days after the date of discharge notify the



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1discharged employee of the existence of the procedures and
2shall supply the discharged employee with a copy of the
3procedures. If the employer fails to comply with this
4subsection, the discharged employee need not comply with
5subsection (b).
6    Section 40. Exemptions. This Act does not apply to a
7discharge that is subject to any other State or federal law
8that provides a procedure or remedy for contesting the dispute.
9Those laws include laws that prohibit discharge for filing
10complaints, charges, or claims with administrative bodies or
11that prohibit unlawful discrimination based on race, national,
12origin, sex, age, disability, creed, religion, color, and other
13similar grounds. This Act does not apply to a discharge of an
14employee covered by a written collective bargaining agreement
15or a written contract of employment for a specific term.
16    Section 45. Violations. An employer that violates this Act
17is guilty of a Class A Misdemeanor.