I’m Quoted in the Illinois Bar Journal

Protections for whistleblowing employees broadened with amendments to the Illinois Whistleblower Act.

Illinois employees now have broader protections from retaliation by employers after changes to the Illinois Whistleblower Act went into effect at the beginning of the year. Labor and employment lawyers say one of the most significant changes in the amended Act is the expansion of the type of conduct that is protected.

“When the Whistleblower Act was initially adopted it focused on anyone who did what we might call ‘traditional’ whistleblowing,” says Carl R. Draper, a partner with Feldman Wasser in Springfield. “It only helped where an employee went before some outside body to report what that employee thought was wrongdoing.”

The revised law now protects employees who report violations of the law or threats to public health and safety directly to their employer. Employees are no longer required to report these activities to outside agencies to be protected from retaliation, in other words. While this change is an obvious expansion of workers’ rights in the state, labor and employment lawyers say it may also benefit employers. Michelle T. Olson, a shareholder at Vedder Price in Chicago, says the amended law may empower employers to address employee concerns and take corrective action more quickly and discretely than under the original law.

“It is possible that employees now might know that internal complaints are protected and will be more likely to make an internal complaint,” Olson says. “If that is the case, often times employers would prefer to keep complaints in-house so they can be remedied before they are shared with the outside world.”

Attorney Charles A. Krugel, who represents employers and is a member of the ISBA’s Labor and Employment Law Section Council, agrees and notes that this aligns state law with industry best practices.

“From a human resources management perspective, any employer wants to hear about issues firsthand without an intermediary so that they can be resolved immediately,” Krugel says. “It is part of effective management and leadership.”

Additional amendments

In addition to expanding the scope of protected activities to include internal reports, the amendments include the following changes:

• Prohibits employers from taking retaliatory action against an employee for disclosing information to a government or law enforcement agency where the employee has a “good faith belief” that the employer’s activity, policy, or practice “poses a substantial and specific danger to employees, public health, or safety.”
• Expands the role of the Office of the Illinois Attorney General by giving the agency the statutory authority to bring lawsuits against employers who retaliate or threaten to retaliate against employees. This reflects a “codification” of the Attorney General’s Workplace Rights Bureau, which also investigates and litigates cases involving wage-law violations and proposes legislation concerning labor and employment issues.
• Provides for additional penalties for retaliation including not only reinstatement, back pay, and attorney fees and costs, but also injunctive relief, front pay, liquidated damages, and a civil penalty of up to $10,000.

Draper notes that the revisions to the Act also are somewhat technical in that they clarify terms and codify existing practices. Draper says this will remove some ambiguities from the law. “From an analytical standpoint, it merited clarification,” he says.

For example, the Act now includes a definition for the term “retaliatory action” along with examples. Prohibited retaliatory action includes taking or threatening to take any action that would intentionally interfere with an employee’s ability to obtain future employment. Employers also may not contact or threaten to report an employee’s suspected or actual citizenship or immigration status or the immigration status of an employee’s family or household to a federal, state, or local agency. Retaliatory actions do not include “truthful, performance-related information” about an employee or former employee so long as it is provided by the employer in good faith.

The revised Act also adds a section explicitly stating that the Act only applies to the exercise of rights contained in the Act and that it is a defense to any action brought under the Act if the employer’s retaliatory action was “predicated solely upon grounds other than the employee’s exercise of any rights protected by this Act.” Draper says that while this can be a “tall order” for an employer to prove, it is nonetheless “the typical defense for most employment discrimination claims.”

Several new laws

The amendment to the Whistleblower Act was just one of several new laws impacting employers and employees that went into effect at the end of last year or early this year. Gov. Pritzker also signed legislation into law amending the Day and Temporary Labor Services Act, Illinois Human Rights Act, Illinois Wage Payment and Collection Act, Illinois Equal Pay Act, and Illinois Worker Freedom of Speech Act. Olson says that employers should use these statutory changes as an impetus to review internal policies for compliance.

“I definitely think that companies should sit down and take a hard look at both their complaint policies and their investigation practices,” Olson says. “It is a good time to revisit those policies and practices to make sure that they are aligned not only with what the company is trying to accomplish, but what the law is requiring.”

Olson notes that supervisors in particular should receive training regarding the changes to the Act so that they understand how to handle internal complaints and understand the “fairly wide scope of activity that could be considered retaliatory.”

“Supervisors need to be trained on this law to have a better understanding of what their role is in the process of not just fielding complaints, but the risks that arise when taking adverse employment actions against employees,” Olson says.

As for the overall impact of these changes, Olson says it is too early to draw any conclusions.

“I think it’s a little too soon to know the full scope of the pros and cons of the amendments,” says Olson. “From the employer perspective there is a concern that there will be an uptick in litigation—and there are higher penalties in the event that there is litigation.”

Amelia Buragas is an attorney and writer who lives in central Illinois.
asburagas@gmail.com