Illinois Common Law Retaliatory Discharge Claim Applies Only to At-Will Employees

On May 6, 2014, the Illinois Appellate Court, First District, held that the Illinois common law tort of retaliatory discharge applies only to at-will employees, and not to employees who have a definite contractual term of employment that is not renewed.  Taylor v. Board of Education of Chicago, No. 123744, 2014 IL App (1st).  Therefore, the plaintiff, who had a four-year employment contract, terminable only for cause, could not establish a common law claim for retaliatory discharge based upon the non-renewal of his employment contract.  However, the Appellate Court also held that the non-renewal of an employment contract is actionable under the Illinois Whistleblower Act (740 ILCS 174).  The plaintiff established a statutory claim under the Illinois Whistleblower Act on the basis that the non-renewal of his employment contract was in retaliation for his protected activity.

In its decision, the Appellate Court stated the elements of a claim for common law retaliatory discharge under Illinois law: (1) the employer discharged the employee; (2) in retaliation for the employee's activities; and (3) the discharge violates a clearly mandated public policy.  On the other hand, the Illinois Whistleblower Act only requires that the employer take any adverse action against an employee for making a good faith report of a suspected illegal activity.  Key differences between an Illinois common law claim of retaliatory discharge and an Illinois statutory claim under the Illinois Whistleblower Act: (1) a common law retaliation claim requires a discharge and cannot be based on other adverse job action, but any adverse job action is actionable under the Whistleblower Act; (2) a common law retaliatory discharge claim applies only to at-will employees, whereas a claim under the Whistleblower Act applies not only to at-will employees, but also to employees who have a definite contractual term of employment.