On December 23, 2021, the Illinois Appellate Court, Second District, held that the Amended Illinois Wage Payment and Collection Act (the "Act") creates a statutory cause of action for retaliatory discharge for an employee whose employment has been terminated for exercising his or her rights under the Act. Dichiarro v. Woodland Maintenance Group, LLC, et al., 2021 IL App (2d) 210418 (2nd Dist. Dec. 23, 2021). The plaintiff alleged that the defendants terminated her employment in retaliation for and because of her repeated demands for payment of unpaid wages due and owing to her under the terms and conditions of her employment agreement. Under Illinois common law, an employer may discharge an employee at will, at any time, with or without cause. Illinois courts, however, have recognized the tort of retaliatory discharge as a limited and narrow exception to the at-will employment doctrine.
To state a claim for retaliatory discharge, an employee must plead and prove that: (1) the employer discharged the employee; (2) the discharge was in retaliation for the employee's protected activities; and (3) the discharge violated a clearly mandated public policy. The Illinois Supreme Court has allowed retaliatory discharge claims in two settings: (1) when an employee has been discharged for exercising his or her rights under the Illinois Workers Compensation Act; and (2) when an employee has been discharged for reporting illegal or improper conduct of the employer. At issue on this appeal was whether the tort of retaliatory discharge should be expanded to cases in which an employee has been discharged for exercising his or her rights under the Act. The Act was amended in 2011 to expressly provide that an employee who has been unlawfully retaliated against for exercising his or her rights under the Act may "recover through a claim filed in a civil action all legal and equitable relief as may be appropriate." The appellate court concluded that the amended statutory language demonstrates an express legislative intent to allow employees who allege they were discharged for exercising their rights under the Act to file retaliatory discharge claims against their employers. It should be noted, however, that Illinois common law still requires a violation of public policy for a retaliatory discharge claim, while the amended Act does not.