SB1760 100TH GENERAL ASSEMBLY

LRB100 09213 JLS 19369 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB1760

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

SYNOPSIS AS INTRODUCED:

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.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Wrongful Discharge from Employment Act.

Section 5. In this Act:

"Constructive discharge" means the voluntary termination of employment by an employee because of a situation created by an act or omission of the employer that an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative.

"Discharge" includes a constructive discharge and any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason.

"Employee" means any person who works for another for hire, but does not include a person who is an independent contractor as defined under Section 212 of the Unemployment Insurance Act.

"Employer" means anyone who engages an employee to do something for the benefit of the employer or a third person and includes a municipality or other governmental unit or agency, the State, and any political subdivision of them.

"Fringe benefits" means the value of any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance plan, life insurance plan, annuity, and pension benefit plan in effect on the date of termination.

"Good cause" means reasonable job-related grounds for dismissal based on employee misconduct, an employee's failure to satisfactorily perform job duties, or other legitimate business reason.

"Grossly negligent conduct" means conduct that is performed when the individual is, or reasonably should be, aware of a substantial risk that the conduct will result in the harm sought to be prevented and the conduct constitutes a substantial deviation from the standard of care a reasonable person would exercise in the situation.

"Lost wages" means the gross amount of wages that would have been reported to the Internal Revenue Service as gross income on form W-2 and includes additional compensation deferred at the option of the employee.

"Misconduct" means the following work related circumstances:

(1) Falsification of an employment application or any other documentation provided to the employer to obtain employment through subterfuge.

(2) Failure to maintain licenses, registrations, and certifications reasonably required by the employer or those that the individual is required by law to possess to perform his or her regular job duties, unless the failure is not within the control of the individual.

(3) Knowing, repeated violation of the attendance policies of the employer that are in compliance with State and federal law following written warning for an attendance violation, unless the individual can demonstrate that he or she has made a reasonable effort to remedy the reason or reasons for the violations or that the reason or reasons for the violations were out of the individual's control. Attendance policies of the employer shall be reasonable and provided to the individual in writing, electronically, or via a posting in the workplace.

(4) Damaging the employer's property through conduct that is grossly negligent.

(5) Refusal to obey the employer's reasonable and lawful instruction, unless refusal is due to the lack of ability, skills, or training for the individual required to perform the instruction or the instruction would result in an unsafe act.

(6) Knowingly consuming alcohol or illegal or non-prescribed prescription drugs or using an impairing substance in an off-label manner on the employer's premises during working hours in violation of the employer's policies.

(7) Reporting to work under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer's policies, unless the individual is compelled to report to work by the employer outside of scheduled and on-call working hours and informs the employer that he or she is under the influence of alcohol, illegal or non-prescribed prescription drugs, or an impairing substance used in an off-label manner in violation of the employer's policies.

(8) Grossly negligent conduct endangering the safety of the individual or co-workers.

"Public policy" means a policy in effect at the time of discharge established by constitutional provision, statute, or administrative rule.

Section 10. Employee to be furnished on demand with reason for discharge.

(a) It is the duty of the employer after having discharged any employee from service, upon demand by the discharged employee, to furnish the discharged employee in writing a statement of reasons for the discharge. If the employer fails to furnish the statement of the reasons for discharge within a reasonable time after the demand, the employer shall be subject to the penalties and damages prescribed in this Act.

(b) A response to the demand may be modified at any time and may not limit the employer's ability to present a full defense in any action brought by the discharged employee. Failure to provide a response as required under this Section does not limit the employer's ability to present a full defense in any action brought by the discharged employee.

Section 15. Protection of discharged employees. If the employer, after having discharged an employee from service, prevents or attempts to prevent, by word or writing of any kind, the discharged employee from obtaining employment with any other employer, the discharging employer is punishable as provided in Section 45 and is liable in punitive damages to the discharged person, to be recovered by civil action. An employer is not prohibited from informing by word or writing any other employer to whom the discharged employee has applied for employment a truthful statement of the reason for discharge. Notwithstanding the foregoing, an employer shall be prohibited from furnishing any statement of the reasons for discharge to another employer if the discharging employer has not furnished a written statement of the reasons for discharge to the discharged employee as provided in Section 10.

Section 20. Blacklisting prohibited.

(a) If an employer in this State authorizes or allows any of its agents to blacklist or if an employer does blacklist any discharged employee or attempts by word or writing or any other means to prevent any discharged employee or any employee who may have voluntarily left the company's service from obtaining employment with another employer, except as provided for in Section 15, the employer is liable in punitive damages to the employee prevented from obtaining employment, to be recovered in a civil action, and is also punishable as provided in Section 45.

Section 25. Wrongful discharge.

(a) A discharge 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.

(b) During a probationary period of employment, which may not exceed 90 days, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason. If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 90 days after the date of hire.

Section 30. Remedies.

(a) A discharged employee may bring a civil action against the employer for all relief necessary to make the discharged employee whole including, but not limited to, the following, as appropriate:

(1) reinstatement with the same seniority status that the discharged employee would have had but for the violation;

(2) lost wages with interest and fringe benefits; and

(3) compensation for any damages sustained as a result of the violation, including litigation costs, expert witness fees, and reasonable attorney's fees.

(b) A party may make a written offer to arbitrate a dispute that otherwise could be adjudicated under this Act. If a complaint is filed under this Act, the offer to arbitrate must be made within 60 days after service of the complaint and must be accepted in writing within 30 days after the date the offer is made. A discharged employee who makes a valid offer to arbitrate that is accepted by the employer and who prevails in such arbitration is entitled to have the arbitrator's fee and all costs of arbitration paid by the employer. If a valid offer to arbitrate is made and accepted, the arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under this Act. The arbitrator's award is final and binding. A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this Act is entitled, as an element of costs, to reasonable attorney fees incurred subsequent to the date of the offer.

Section 35. Limitation of actions.

(a) Except as provided under subsection (b), an action under this Act must be filed within one year after the date of discharge.

(b) If an employer maintains written internal procedures other than those described in subsection (c) under which a discharged employee may appeal a discharge within the organizational structure of the employer, the discharged employee shall first exhaust those procedures prior to filing an action under this Act. The discharged employee's failure to initiate or exhaust available internal procedures is a defense to an action brought under this Act. If the employer's internal procedures are not completed within 90 days after the date the discharged employee initiates the internal procedures, the discharged employee may file an action under this Act and, for the purposes of this Section, the employer's internal procedures are considered exhausted. The limitation period in subsection (a) does not commence until the procedures are exhausted. In no case may the provisions of the employer's internal procedures extend the limitation period in subsection (a) more than 120 days.

(c) If an employer maintains written internal procedures under which a discharged employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days after the date of discharge notify the discharged employee of the existence of the procedures and shall supply the discharged employee with a copy of the procedures. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (b).

Section 40. Exemptions. This Act does not apply to a discharge that is subject to any other State or federal law that provides a procedure or remedy for contesting the dispute. Those laws include laws that prohibit discharge for filing complaints, charges, or claims with administrative bodies or that prohibit unlawful discrimination based on race, national, origin, sex, age, disability, creed, religion, color, and other similar grounds. This Act does not apply to a discharge of an employee covered by a written collective bargaining agreement or a written contract of employment for a specific term.

Section 45. Violations. An employer that violates this Act is guilty of a Class A Misdemeanor.