Brian J Graber LLC is a retaliatory discharge lawyer representing Illinois employees discharged in retaliation for work injuries. In Illinois, a major exception to the employment-at-will doctrine is a retaliatory discharge claim for exercising your rights under the Illinois Worker’s Compensation Act. Brian J Graber LLC is a retaliatory discharge lawyer representing Illinois employees terminated in retaliation for exercising their rights under Illinois Worker’s Compensation Act.
Since Kelsay v. Motorla, Inc., 74 Ill.2d 172 (1978), Illinois has recognized a tort claim for retaliatory discharge when an employer discharges an employee for exercising his/her rights under the Illinois Worker’s Compensation Act.
An employer cannot fire an employee because he/she exercised his/her rights to certain benefits under the Illinois Worker’s Compensation Act, (“IWCA”). Any Illinois employer that fires an employee for exercising his or her rights under the IWCA opens itself up to liability on a tort claim for retaliatory discharge which is also known as a wrongful termination claim.
Burden of Proof – Retaliatory Discharge For Exercising Your Rights Under the Worker’s Compensation Act
To recover for the tort of retaliatory discharge based on exercising rights under the IWCA, an employee must prove the following elements:
- He/she was an employee at the time of the work-related injury;
- He/she engaged in protected activity by exercising some right or benefit granted by the Illinois Worker’s Compensation Act;
- He/she was discharged;
- and that the discharge was causally related to the exercise of his/her rights allowed by the Illinois Worker’s Compensation Act.
Protected Activity – Exercising Rights Under The Illinois Worker’s Compensation Act
The Illinois Worker’s Compensation Act, 820 ILCS 305/4(h) plainly prohibits a retaliatory discharge for the exercise of worker’s compensation rights. Retaliatory discharge claims provide may provide employees with coronavirus anti-retaliation protections for seeking worker’s compensation benefits for coronavirus infections incurred on the job.
Filing a claim for worker’s compensation benefits is protected activity under the IWCA. However, filing a claim for worker’s compensation benefits is not required to establish a retaliatory discharge claim under the IWCA.
Stopping work to report a work-related injury and then requesting medical treatment for a work-related injury is protected activity under the IWCA. Requesting or seeking medical treatment is only the first step to exercising rights under the IWCA. An employer cannot terminate an employee on the basis of a dispute about the extent or duration of a compensable work-related injury. Any disputes about the extent or duration of a compensable work-related injury is an issue to be decided by the Illinois Worker’s Compensation Commission.
In Pietruszynski v. McClier Corp., 338 Ill.App.3d 58, 63-64 (1st Dist. 2003), the court held that two employees who participated in a worker’s compensation hearing as witnesses for a co-worker’s worker’s compensation claim engaged in protected activity under the IWCA. An employer who terminates an employee for participating in a co-worker’s worker’s compensation hearing as a witness has retaliatory discharge liability.
The Termination Must Be Caused by The Exercise of Rights Under the Worker’s Compensation Act
The employee must prove he/she was discharged by the employer in retaliation for the exercise of his/her rights under the IWCA to recover under the tort of retaliatory discharge. In short, the employee must establish a causal relationship between the employee’s protected activity and the termination.
Statute of Limitations
The statute of limitations for the tort of retaliatory discharge for exercising your rights under the Illinois Worker’s Compensation Act requires an employee to file suit against his/her employer within five years from the date of the termination. However, if the employer is a local government entity such as a county, municipality, or village, the statute of limitations requires the employee to file suit against his/her governmental employer within one year of the termination.
If you believe that you were terminated for exercising your rights under the Illinois Worker’s Compensation Act, contact Brian J Graber LLC, a retaliatory discharge lawyer for a free confidential consultation at (312) 291-4648 or by email.