A decision out of the Federal District Court in Chicago appears to have broadened the tort of retaliatory discharge a bit.
In Van Pelt v. BonaDent, plaintiff Tad Van Pelt had been recruited to work as a sales representative for BonaDent, Inc. a dental lab. Van Pelt was hired as an at will employee. In 2015, Bonadent purchased a laboratory in Chicago. Van Pelt was told to maintain a desk at the facility so he could supervise things. Additionally, he was asked to oversee Human Resources at the Chicago facility. After a time, Van Pelt concluded that some of the workers did not have appropriate documentation to be working in the United States. He told his Bruce Bonafiglia, BonaDent’s CEO. Bonafiglia indicated that one of the workers was in the process of getting the necessary documents and that Van Pelt should go about his business. Van Pelt agreed but refused to undertake any HR responsibilities for employees he felt were working illegally. During a subsequent performance review Van Pelt again raised concerns about illegal workers and insisted he would not help any of the illegal workers secure necessary documentation. Van Pelt was then fired. He sued BonaDent, for a variety of harms. One of this theories was that BonaDent fired him in retaliation for his refusal to tend to HR responsibilities for those employees he felt to be illegal.
Generally speaking an Illinois employer may terminate an at will employee at any time for any reason. There is one exception to that rule however – the tort of retaliatory discharge. In order to prevail on a claim of retaliatory discharge, the employee must prove: 1) he or she was discharged; 2) in retaliation for his or her activities; and 3) the discharged violated a clear mandate of public policy. Courts of Illinois however, have been historically reluctant to find violations of public policy. Over the last 40 years, Illinois courts have recognized only three fact patterns where a public policy was involved. In Kelsay v. Motorola (Ill. 1981) 384 N.E.2d 353, the Illinois Supreme Court determined that it was illegal to discharge an employee for exercising his or her rights under the Illinois Workers’ Compensation Act. In Palmateer v. Int’l Harvester Co., (Ill. 1981) 421 N.E. 2d 876. the Supreme Court recognized a cause of action when an employee is terminated for disclosing information to a law enforcement agency. Finally, in Wheeler v. Caterpillar Tractor Co. (Ill. 1985) 485 N.E.2d 372, the Illinois Supreme Court determined an employee could not be discharged for refusing to handle radioactive material where the employer’s operations violated federal standards.
BonaDent moved to dismiss the retaliatory discharge count of Van Pelt’s complaint on two fronts: 1) no criminal activity was involved and 2) no public policy was involved. Judge John Zee, however, didn’t buy it. Citing Belline v. K-Mart, Judge Zee noted that the Illinois Supreme Court would recognize a retaliatory claim where an employee is fired for reporting a supervisor’s purported criminal conduct to the employer – even if the employee doesn’t go to the police. And, Zee noted, the absence of criminal conduct doesn’t sink the claim. A plaintiff need only allege a good faith belief that a crime was being committed. Zee then concluded that Van Pelt could move forward with his retaliatory claim even though he didn’t go to the Police. Additionally, Zee concluded that Van Pelt held a good faith belief the documentation of illegal employees was criminal conduct. BonaDent’s Motion to dismiss the retaliatory discharge count was denied.
Zee’s opinion then appears to endorse another category of retaliatory claims – situations where employees report seemingly illegal activity to personnel inside the company and are then fired. And, importantly, the employee doesn’t even have to be right about the criminal nature of the activity – as long as he or she holds a reasonable belief it is illegal.