Whether a non-competition or non-solicitation agreement is valid and enforceable under Illinois law depends upon the specific terms of the agreement, as well as the unique facts and circumstances surrounding the agreement, employment, separation of employment, and post-employment employee conduct.
The first question is whether adequate consideration exists to support a restrictive covenant.
On February 4, 2021, the Illinois Supreme Court affirmed the dismissal of claims for retaliatory discharge and violation of the Illinois Whistleblower Protection Act. Rehfield v. Diocese of Joliet, 2021 IL 125656 (Feb. 4, 2021). Plaintiff alleged that defendant unlawfully retaliated against her by terminating her for reporting a parent’s threatening conduct to police. Plaintiff alleged that her employment termination violated Illinois public policy to investigate and prosecute criminal offenses. She further alleged that defendant’s actions were likely to make other staff and faculty members reluctant to come forward to report potentially unlawful or criminal conduct. Plaintiff also alleged that defendant’s actions violated the Illinois Whistleblower Act, which prohibits Illinois employers from retaliating against Illinois employees for disclosing information to a law enforcement agency, provided that the employee has reasonable cause to believe the information discloses a violation of a state or federal law, rule, or regulation.
On October 27, 2020, the Illinois Appellate Court, First District, affirmed an order of summary judgment in favor of an employer-defendant in an Illinois state court lawsuit for retaliatory discharge and intentional infliction of emotional distress. Dipietro v. GATX Corp., 2020 IL App (1st) 192196. The plaintiff alleged that her termination of employment violated clearly mandated public policy announced in the Illinois Employee Sick Leave Act (the "Act") and the Chicago Minimum Wage and Paid Sick Leave Ordinance. The defendant moved for summary judgment on the grounds that: (1) the plaintiff did not engage in any protected activity; (2) her discharge did not violate public policy; (3) there was no causal connection between her complaints and her termination; and (4) the proffered reason for her termination was not pretextual. The defendant also argued that its alleged conduct was not sufficiently outrageous to support the plaintiff's claim for intentional infliction of emotional distress, and that her claimed emotional distress was not actionable.
On June 29, 2020, the Illinois Appellate Court, First District, reversed an order of summary judgment in favor of the defendant-employer in a retaliation lawsuit in which the former employee-plaintiff alleged claims for Illinois common law retaliatory discharge and violation of the Illinois Whistleblower Protection Act (the "Act"). Hubert v. The Board of Education of the City of Chicago, 2020 IL App (1st) 190790 (June 29, 2020). The plaintiff worked for the Chicago Public Schools managing bus transportation services. He became aware that private bus vendors that the school system had hired were overbilling the school system. After he worked to root out the fraud by voicing his concerns within the school system and by meeting with law enforcement, his employment with the Chicago Public Schools was terminated. The plaintiff contends that he was unlawfully terminated in retaliation for working to expose fraud.
On May 21, 2020, the Illinois Appellate Court, First District, affirmed (on purely procedural grounds) a decision of an administrative law judge ("ALJ") of the Illinois Human Rights Commission (the "Commission") that a female employee was subjected to unlawful sexual harassment in her employment, in violation of the Illinois Human Rights Act. Cigna and Professional Consultants, Inc. v. The Illinois Human Rights Commission, The Department of Human Rights, and Lois Owen, 2020 IL App (1st) 190620 (May 21, 2020). After a two-day hearing, the ALJ recommended that the Commission find that the employer and the employee's direct supervisor sexually harassed the employee. The Commission adopted the ALJ's recommended findings and decision. The employee alleged that they sexually harassed her and created a hostile work environment on the basis of her sex. The alleged workplace sexual harassment included the supervisor calling the employee a b*** on a daily basis, having a picture of a woman with her breasts exposed hanging in his office, making sexual comments to her, and sending emails of photos and videos depicting nude women or women in suggestive poses.
On March 27, 2020, the Illinois Appellate Court, First District, affirmed the findings and decision of the Illinois Human Rights Commission ("Commission") against a former employee on her claims of age and disability discrimination under the Illinois Human Rights Act ("IHRA"). Burns v. Bombela-Tobias, 2020 IL App (1st) 182309. Although the appellate court concluded that the record as a whole supported the Commission's findings, it also criticized the Commission's legal analysis, and stated Illinois employment law with respect to age and disability discrimination claims under the IHRA.
On February 6, 2020, the Illinois Appellate Court, First District, affirmed the trial court's order granting summary judgment in favor of the defendant-employer in a disability discrimination lawsuit filed by the Plaintiff, a manager of a federal government youth-wellness facility, under the Americans with Disabilities Act ("ADA") and the Illinois Human Rights Act ("IHRA"). Fox v. Adams and Associates, et al., 2020 IL App (1st) 182470 (February 6, 2020). The Plaintiff was involved in an automobile accident that caused injuries requiring prolonged leaves of absence. The trial court found: (1) that the Plaintiff was not a qualified individual with a disability; (2) that there was no genuine issue of material fact that she could not perform the essential functions of her job due to her disability; and (3) the employer terminated her employment due to her medical inability to work. On appeal, the Plaintiff argued that she was a qualified individual with a disability because her request for a multi-month leave of absence was not unreasonable, and that she did not request an indefinite amount of time for her leave of absence.
On December 30, 2019, the Illinois Appellate Court, Second District, issued an opinion that discussed the circuit court's ruling that an employee confidentiality provision contained in an employment agreement was overly broad in scope and therefore unenforceable. Indeck Energy Services, Inc. v. DePodesta, et al., 2019 IL App (2d) 190043 (Dec. 30, 2019). The plaintiff-employer filed a lawsuit against former employees for breach of their employment contracts and for injunctive relief to enforce its confidentiality and noncompetition agreements. After a bench trial, the trial court directed a finding in the defendants' favor, finding, among other things, that the confidentiality agreement was void and unenforceable.
On December 3, 2019, the Illinois Appellate Court, First District, affirmed an order of summary judgment in favor of an employer-defendant in a lawsuit in which an unsuccessful job applicant alleged that her rights under the Illinois Employee Credit Privacy Act ("Act") were violated when she was not hired as a result of an investigation of her credit history. Rivera v. Commonwealth Edison Company, 2019 IL App (1st) 182676 (12/3/2019). The plaintiff claimed that the defendant's actions of investigating her credit history in connection with a conditional offer of employment and refusing to hire her because of the results of the investigation violated the Act.
Successor corporations may be liable for employment discrimination claims against their predecessor corporations under Illinois law. Department of Human Rights v. Oakridge Nursing & Rehab Center, 2019 IL App 170806 (First Dist. March 11, 2019). An employee filed a charge of age and disability discrimination under the Illinois Human Rights Act against her employer. After receiving notice of the charge, the employer transferred substantially all of its assets for no consideration to another related business entity. The employee obtained a money judgment against the employer, which it failed to satisfy. The State filed a complaint against the successor entity to enforce compliance with the judgment. The circuit granted granted summary judgment in favor of the successor entity. The State appealed. The Illinois Appellate Court, First District, reversed, holding, in a case of first impression, that Illinois courts shall recognize successor liability for violations of the Illinois Human Rights Act.