Category: Wrongful Termination

How to Make an Employment Complaint

My friend Branigan Robertson made the below video on raising effective workplace complaints while avoiding retaliation. He also writes about it here.

All of these tips are great, and they apply equally to Illinois employees. Tip number six is especially important: send a written complaint. Unfortunately, potential clients tell me all too often that they only complained about illegal conduct in-person or on the phone. Unfortunately, judges give these non-written complaints very little weight. Even more unfortunate, individuals who still work for the employer often have a different “memory” than you. Thus, if you make any complaint, it needs to be in writing. A simple email will do the trick, and you can print out a copy of the email for your records.

In the unfortunate event you need to make a workplace complaint, make sure to follow these tips. When in doubt, contact an experienced employment attorney.

Are You Entitled to Severance?

Individuals often ask me if they are entitled to severance benefits after being terminated. Severance benefits are a lump sump payment to the employee which usually require the employee to sign an agreement waiving all potential legal claims against the company. Illinois law does not require employers to pay severance to terminated employees. However, there are some employees legally entitled to severance pay.

Contracts that Guarantee Severance

The exception to this general rule is when the company has contractually agreed to provide severance  if the employee is terminated. There are two common situations where employers offer these types of employment agreements. First, these types of contracts are sometimes provided to executive-level employees. The promise of future severance may help entice an employee to join the new company, or convince an existing employee to remain with the company.

Second, these types of contracts are common when a company is in the process of merging with a bigger company. In these situations, employees for the company being bought-out are concerned (often rightly so) they will lose their job in the merger. To ensure a stable transition, the acquiring company will offer employees of the soon-to-be-acquired company a contract guaranteeing severance in the event the employee is terminated. Thus, the employees have an assurance that their job is safe, and in the event of termination, they still will be provided compensation.

Voluntary Severance

Companies are often still willing to pay severance benefits for a variety of reasons. Companies may provide severance benefits as a recognition of service to the company. For instance, some companies have a general policy of giving one week of severance for each year of service. Employers may also provide severance partly because they are concerned the employee may sue the company. To prevent any future litigation, the employer agrees to pay the employee a lump sum payment in exchange for the employee waiving all claims against the company.

Even if the company does not offer any type of severance, a terminated employee may still be entitled to unemployment benefits to ease the burden of losing his or her job. It is important to note that even if you are paid severance, you generally are still equally entitled to unemployment benefits, and the severance payments do not affect your unemployment benefit amount.

If you have been laid off and are presented with a severance agreement (or think you may be entitled to one), it is highly advisable to seek a qualified employment attorney to review your situation. Unfortunately, I have reviewed too many cases where an individual has strong claims against an employer, but is unable to pursue them due to prematurely signing a severance agreement. Contact us today if you are in need of employment advice.

Are You Entitled to Your Personnel File?

Workers often ask me whether they can get their personnel file from their current or former employer. For example, the Pennsylvania Supreme Court recently found that former employees are not entitled to their employee records once he or she stops working for the company. However, Illinois employees are usually entitled to their personnel file.

The Personnel Record Review Act requires Personnel Fileemployers to provide, upon request, “any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action…” 820 ILCS 40/2. The Act applies to most political entities, as well as private businesses that have 5 or more employees. Keep in mind the Act does not simply require the employer to turn over a “file,” but rather defines the specific types of documents, regardless of where they are stored, that must be turned over to the employee.

There are two important consequences if the employer denies an employee’s right to his or her personnel file. First, the employee has a cause of action against the company if the personnel file is not turned over to the employee. 820 ILCS 40/12. The employee must first file a Complaint with the Department of Labor, and can proceed to Illinois Circuit Court if the employer still refuses to turn over the file. An employee who prevails under this cause of action may be entitled to contempt damages, actual damages, costs, a $200 fine, and reasonable attorney’s fees.

The second important consequence of an employer refusing to provide a personnel record is that any employee document not provided in response to a request under the act cannot later be used by the employer in any judicial proceeding. 820 ILCS 40/4.

If you are having difficulty obtaining your personnel file from your current or former employer, or are having any other employment disputes, contact an experienced employment attorney immediately.

Fox Terminates Host for Racial Remark

Companies have a duty to prevent employees from working in a hostile work environment. On Friday, it appears Fox attempted to do just that. The company fired “The Five” co-host Bob Beckel for a remark he made to an African American employee. Fox believes it acted appropriately by firing Beckel due to the remark. However, lawyers who represent former Fox employees say otherwise.

 no seinfeld never finger wag no gif GIF

There have been a number of newly-filed racial discrimination lawsuits against Fox. Lawyers for these plaintiffs say that Fox created a hostile work environment for their clients. Moreover, lawyers allege that not only were there racial comments made in this case, but Beckel also attempted to get the employee to withdraw a subsequent complaint about the incident. The company denies such retaliation.

Title VII of the Civil Rights Act of 1964 prohibits employers from fostering a hostile work environment on claims based on racial harassment. 42 U.S.C. § 2000e-2. In order to establish a hostile work environment claim, the plaintiff must show (1) that he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Smith v. Northeastern Illinois University, 388 F.3d 559, 566 (7th Cir. 2004). An employer is strictly liable for harassment by a supervisor. If the harassment is committed by a co-worker, the plaintiff must show the employer knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004). Thus, in this situation, the determination will partly depend on whether Beckel was the employee’s supervisor, or whether he was merely a co-worker, which requires a higher showing.

Title VII also prohibits retaliation for raising complaints about discrimination. Specifically, it is unlawful for an employer to discriminate against an employee for opposing an unlawful employment practice. 42 U.S.C. § 2000e-3(a). Here, the employee will likely also claim Beckel retaliated against her for raising a complaint of racial discrimination.

The ultimate determination for this employee and those bringing racial discrimination claims against Fox will depend on the specific facts and circumstances of each plaintiff. If you believe you have been discriminated against based on race, or retaliated against for raising a complaint, contact Osborne Employment Law today.


BREAKING: 7th Circuit Finds Sexual Orientation Discrimination Illegal

Big news in the employment law world today. As I have blogged, a three-judge panel on the Seventh Circuit Court of Appeals previously held that sexual orientation discrimination is not discrimination based on sex as contemplated by Title VII of the Civil Rights Act of 1964. The Court reluctantly found sexual orientation discrimination is not prohibited almost purely based on binding Seventh Circuit precedent dating back to 1984. However, the Plaintiff requested the entire Seventh Circuit to rehear the case, which it did in Hively v. Ivy Tech Community College, No. 15-1720 (April 4, 2017). Well, the decision was released yesterday, and the Seventh Circuit held “that discrimination on the basis of sexual orientation is a form of sex discrimination.”

As the Court aptly stated, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” The opinion is especially important because it stands in stark contracts to the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital, which found Title VII does not prohibit sexual orientation discrimination. Generally, when different circuits “split” on an important issue, it becomes much more likely the Supreme Court will address the circuit split.

Keep in mind, although federal law now prohibits sexual orientation discrimination in states encompassing the Seventh Circuit (Illinois, Indiana, and Wisconsin), there may be other laws and ordinances which also prohibit sexual orientation discrimination. In Illinois, for example, the Human Rights Act prohibits sexual orientation discrimination. In Chicago, the Chicago Human Rights Ordinance similarly prohibits sexual orientation discrimination.

Although the Court’s employment decision is a victory for human rights, the Supreme Court will likely get the final say. In the meantime, however, the Seventh Circuit’s ruling will help prevent wrongful terminations based on sexual orientation in the future.

Company Fires Employee for Attending Birth of His Son

A New Hampshire company, Salerno Protective Services, recently allegedly terminated employee Lamar Austin for missing work. The reason he missed work? He wanted to be with his wife while she went into labor and had their son. Soon after the healthy baby was born, Austin received a not-so-congratulatory text from his employer: “As of now, you are terminated.”


Illinois, like New Hampshire, is an at-will employment state. In other words, employers can generally fire employees for any reason or no reason at all – so long as the company does not commit prohibited discrimination, retaliation, or violate some other specific state or federal law. Unfortunately, that means a company may be legally entitled to terminate a worker who has the audacity to attend the birth of his son.

There are a few laws that may turn this situation into a wrongful termination. For example, the Family and Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of leave for the birth of his or her child, and to care for the newborn child. The law allows both the father and mother to take leave. However, keep in mind the FMLA generally only applies if the employer has 50 or more employees (and government agencies), the employee worked for over one year, and the employee worked at least 1250 hours in the preceding year. These requirements exclude many individuals from FMLA protections.

Luckily things seem to be turning out well for Austin. When local companies learned about the circumstances surrounding his termination, many business leaders reached out to him with job offers. A friend also started a GoFundMe Page in his honor, which has exceeded its $10,000 goal.

Hopefully Illinois and other states will enact laws to prohibit these types of terminations. These laws are often not enacted simply because most people think they are not necessary. It is common sense that an employer would not fire an employee simply for wanting to attend the birth of his or her child. People once thought laws prohibiting retaliation for reporting sexual harassment and prohibiting retaliation for grieving a deceased child were unnecessary because it didn’t happen. However, both types of laws have been enacted in Illinois, to combat the unusual employer that denies basic rights and decency to employees.

If you believe a company wrongfully terminated your employment, contact an experienced employment attorney immediately.


Illinois Sick Leave Rights

An employee was recently terminated from the Eric County Sheriff’s Department (in the state of New York) for allegedly abusing her sick leave time. The employee was caring for her husband who has fourth-stage esophageal cancer. She previously banked around 700 hours of sick time, but already went through those hours. She also says that she provided her employer doctor’s notes stating she has severe fatigue, headaches, and depression. Her superiors at the Sheriff’s Department, who just unveiled a pink-wrapped patrol car to support breast cancer awareness, terminated her employment partly on the basis of abusing sick leave. Although the facts in this case are disputed (and may be litigated in the future), this brings up the question of what rights Illinois employees have when it comes to sick leave.


Illinois Sick Leave Law

There are no federal or Illinois state laws that require employers of any size to provide employees sick leave. However, once employers offer the leave, workers may be entitled to certain rights and benefits under Illinois law. For example, a company that promises leave to employees, either through a contract, handbook, or other policy, but fails to provide it may be liable for a breach of contract or Illinois Wage Payment and Collection Act claim. See Grant v. Board of Education, 282 Ill. App. 3d 1011 (1996).

In addition, the legislature recently passed the Illinois Employee Sick Leave Act, which goes into effect January 1, 2017. The law requires employers who already offer sick leave to allow employees to use the leave to care for a sick or injured family member. Employers cannot retaliate against an employee for using or attempting to use leave under the act, or opposing an employer that does not provide leave pursuant to the act.

There are certain municipalities within Illinois that do require employers to offer sick leave. For example, the Chicago Paid Sick Leave Ordinance, passed earlier this year, requires Chicago employers to provide eligible employees up to 40 hours of paid sick leave every 12 months of employment. Individuals must perform a minimum of 2 hours of work for the employer in Chicago within a 2-week period, and work a minimum of 80 hours in any 120-day period. The ordinance applies to most employers, but does not apply to those subject to a bona fide collective bargaining agreement.

Laws Related to Sick Employees

Although most jurisdictions do not require employers to offer sick leave to employees, other laws may apply in a situation where an employee seeks leave. For example, if an employee requests sick leave for a serious health condition, the Family and Medical Leave Act (FMLA) may require leave, even if the employee may not be able to take the company’s designated sick leave. An employee may also have claims for disability discrimination if the employer offers leave differently based on whether an employee has a qualifying disability.

Election Day Employment Rights

Most people know they have the right to vote tomorrow, November 8, 2016, for the next president of the United States (among other candidates/issues). However, not as many people know they might be entitled to miss work in order to cast their ballot. Although there are no federal laws requiring employers to provide employees time-off to vote, many states have such laws.

Voting Poll

In Illinois, the State’s Election Code provides employees certain protections when it comes to voting. 10 ILCS 5/17-15. The Act applies when an individual begins their shift less than two hours after the opening of polls, and ends less than two hours before the closing of polls. In these situations, the company must permit a two-hour absence to allow the employee to vote. It is illegal for a person or corporation to deny this type of leave or subject the employee to any adverse consequences for making the request.

In order to take advantage of the law, Illinois employees need to act by the end of the day! In order be protected by the law, the employee must submit the leave application prior to the day of the election. Now Illinois employees have one less excuse to exercise their civic duty and vote on Tuesday!

Employers Cannot Always Check Your Credit

Illinois, like many other states, has a law that generally prevents companies from checking employees’ credit (be it credit report, history…) as a condition of employment. The Employee Credit Privacy Act, 820 ILCS 70/1 generally prohibits employers from refusing to hire, discharge, or otherwise discriminate against an employee because of the individual’s credit history or report. 820 ILCS 70/10(a)(1). In fact, employers cannot even inquire about an applicant’s or employee’s credit history in most circumstances.

There are exceptions to the rule.  An employer is allowed to learn an employee has a “satisfactory credit history” only for an “established bona fide occupational requirement of a particular position.” 820 ILCS 70/10(b). For example, if the duties of the job position include unsupervised access to cash or marketable assets at $2,500 or more, the company is allowed to confirm the employee’s credit is “satisfactory.” 820 ILCS 70/10(b)(2).  Another exception is when the employee’s job position has “access to personal or confidential information…” 820 ILCS 70/10(b)(5). An individual harmed by a violation in the act is permitted to bring a civil action to obtain damages, injunctive relief, and costs and attorney fees in bringing the action.

Ohle v. the Neiman Marcus Group

In this case, Neiman Marcus located in DuPage County declined to hire an employee because her credit was not satisfactory. Neiman Marcus claimed the employee had access to customers’ personal and confidential information, namely taking credit card applications and dropping the applications in a secure location.  Therefore, the company argued, it was allowed to inquire into her credit history.

Credit Card Application

However, the Court found the employee did not “access” to the confidential credit card information by merely taking a credit card application and dropping it in a secure box. If this were the case, most retail sales clerks in the entire state would be exempt from the statute designed to protect these very employees. Therefore, as the employee was not covered by any of the Act’s exemptions, Neiman Marcus violated the Employee Credit Privacy Act by obtaining her credit report.

If you believe an employer has improperly requested your credit information, terminated you for credit information, or discriminated against you for any reason, contact an employment attorney as soon as possible.

“Fact of an Arrest” to Terminate an Employee

When companies decide whether to hire or fire an employee, they are sometimes tempted to use arrest and conviction records to assist their determination.  However, some federal and state laws limit what arrest records can be used in making employment decisions.


The Illinois Human Rights Act (IHRA) generally prohibits employers “to inquire into or to use the fact of an arrest or criminal history record information ordered expunged, sealed or impounded …” to take any adverse employment action against the employee. 775 ILCS 5/2-103(A).  Although companies are not allowed to consider an employee or applicant’s fact of arrest in making an employment decision, employers are still permitted to obtain and use “other information which indicates that a person actually engaged in the conduct for which he or she was arrested.” 775 ILCS 5/2-103(B).

If an employer is found to have violated the IHRA, the employee is entitled to damages, including actual damages (to compensate the injury or loss actually suffered by the Plaintiff), reinstatement, costs in bringing the action, and reasonable attorney fees.

Murillo v. City of Chicago

The City of Chicago recently learned the hard way that it is impermissible to use a fact of an arrest as grounds to fire an employee.  In Murillo v. City of Chicago, the Plaintiff was arrested in the late 1990s for allegedly possessing cocaine.  However, the trial judge in the case promptly dismissed the charges against Plaintiff for lack of probable cause.  Nearly ten years later, the Plaintiff obtained a job as a janitor for the City of Chicago.  The City eventually obtained the arrest report from the 90s, revoked the Plaintiff’s security clearance, and terminated his employment.  Plaintiff sued because the City used the fact of his arrest as the sole basis of his termination.

The trial court agreed with the Plaintiff, finding the City violated the IHRA by using the fact of his arrest in firing him.  The jury found Plaintiff was entitled to damages for lost wages, pension benefits, and emotion distress in the sum of $87,227.75.  The trial court also granted Plaintiff’s motion for attorneys’ fees, but only granted $183.796.83 of the requested $300.497.50.

The Illinois Court of Appeals upheld the trial court’s decision that the City of Chicago violated the IHRA by using Plaintiff’s fact of arrest in terminating his employment.  However, the Court remanded the case back to the trial court to provide a reason why the attorneys’ fee award was slashed in half for no apparent reason.

Lessons from Murillo

This case shows employers should take the IHRA’s prohibition of using the fact of an arrest in employment decisions seriously.  Here, the City of Chicago is looking at damages of close to half-a-million dollars for not following the law.  Moreover, it remains unclear why the City of Chicago deemed an arrest ten years ago relevant as to whether the gentlemen could successfully perform his job duties today.  Unfortunately, while most would agree the arrest itself is not helpful in evaluating an employee, the IHRA protects employees from the companies that do.