The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Can They Do That? Well, It Depends, But Generally Speaking…
By Marti J. Sladek

These are questions employees often ask employment attorneys in one form or another, or that—when turned around—businesses ask their lawyers. The answers are only a basic summary (and all that other neat disclaimer language), as many employee rights and employer obligations depend on the size of the employer, whether it is a government agency or contractor, its location, its own policies and procedures, and specific statutory provisions.

Q: My employer just (fill in the blank: fired, transferred, demoted, reassigned) me. Can they do that?

A: They already did, so this is the wrong question. The question is, what, if anything, can you do about it? Often, the important legal issue is why, or sometimes how, an employer has done something, not merely the fact its being done. As in any civil lawsuit, the employee, as Plaintiff or Complainant, has the burden to prove that the action was illegal.

Q: I just got fired unfairly because my boss doesn’t like me. Can’t I sue for wrongful discharge?

A: Not really. Officially, there is no such thing as "wrongful discharge" per se. That is just a phrase lawyers use (a "term of art") for convenience. It covers a handful of causes of action: illegal discrimination; breach of contract; retaliation; discharge contrary to public policy; and other constitutional or statutory violations. Employees must be specific in alleging an illegal act by an employer. "Unfair" is not the same as illegal, and not every type of personal discrimination is illegal—it has to be based on a "protected class." (Race, color, national origin, gender, religion, disability and age are the most common; however, there are a few others under federal, state or local laws).

Q: But they did not write me up, or give me any notice, or even tell me why I was fired. Don’t they have to do those things first?

A: No. Illinois is an "employment-at-will" state. That means companies generally can make employment decisions as they see fit, just like any other business decisions. You do not have a legal right to progressive discipline, notice, or a reason for termination, absent an expressed employer policy or contract. (You do have a right to see your personnel file.) The theoretical flip side of employment-at-will is that you can’t be forced to stay at a place for which you hate working; you can quit.

Q: My boss says he is going to fire me for insubordination because I refuse to come in for "mandatory" overtime on Saturdays. I already work a full week, so I am safe, aren’t I?

A: No, you aren’t. Mandatory means you have to do it or you could be fired. But there are some restrictions on how many consecutive days you can be forced to work. Also, hourly workers have to be paid overtime for more than 45 hours per week.

Q: I can’t drop my kids off at day care until 7:30 am, which means I can’t get to work my starting time of 8 am. I’ve asked to come in at 8:30 and then work later, but they said "no". That isn’t right, is it?

A: It may not be right. It may not be family friendly. It is legal. Employees are expected to accommodate employer’s needs, not the other way around, family problems or not. Tardiness and overall attendance are a legitimate part of an employer’s expectations about job performance.

Q: My employer refuses to give me time off, even unpaid, for my problem pregnancy and after my baby is born. Isn’t this pregnancy discrimination?

A: Employers must treat pregnancy the same way that they treat any other short-term disability. If people with other serious illnesses or injuries are not given time off, then you don’t have the right to it. You may be out of luck unless you are covered by the Family Medical Leave Act (FMLA). However, even then, leave is limited and probably unpaid, and you might have to use up vacation and sick time first.

Q: I got hurt at work and can’t do my regular job, so they fired me. I was still under medical care and had restrictions. Don’t they have to give me light duty until I am able to do my real job?

A: You’ve just stepped into what employment lawyers call the "Bermuda Triangle: Workers’ Compensation Act, Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA). Neither the Workers’ Comp. Act nor the ADA requires an employer to create a light duty job, even for someone who is injured at work. Someone who simply cannot perform at least the essential parts of his or her job, with or without reasonable accommodation, can always be fired. However, if an employer gives light duty to people who get sick, or have accidents elsewhere, then they should do the same for a workers’ comp. claimant, rather than risk a suit for retaliatory discharge. People who are seriously injured at work at a larger company may be able to use the FMLA for additional time off. Plus, the Workers’ Comp. Act provides for disability pay, retraining if necessary, medical expenses and other damages for those hurt on the job.

Q: They just laid off a bunch of us who have lots of seniority, and left newer people alone. Can they ignore seniority? Isn’t this age discrimination?

A: Like many other employee "rights", seniority is a concept that comes out of collective bargaining agreements, but it is not the law. Many times older workers (40 and over!) are most affected by layoffs because they tend to be the highest paid, so they are often targeted in cost cutting. If job eliminations are done based on economic realities, for instance, with some younger workers also being cut, or whole units being shut down, it is not age discrimination. Neither is it necessarily age discrimination to bring in a younger person and pay them more for the same work you are doing, if the market demands it.

Q: I just got a severance agreement to sign. Can I be forced to sign it? Can I ask for more?

A: You can not be forced to sign. However, the employer does not have to give you severance if you don’t sign. In fact, severance is never required of an employer. Usually you will be asked to waive some legal rights, and perhaps make promises (covenants) of your own concerning protecting the employer’s business interests. You can always ask for more, especially if you have some independent basis to file suit. Don’t count on getting it however, especially in a group layoff. Also, if you are an older worker, severance contracts have some additional technical requirements to be valid.

Q: I am not allowed to take a coffee break and I only get a half hour for lunch. Is this OK?

A: It sounds harsh, but it is not illegal. No breaks are required except for a brief lunch. (One exception: under a brand new Illinois law, a company with five or more employees must give new moms time and, if possible, a private place other than a toilet stall, to express breast milk.) Breaks of any kind do not have to be paid.

Q: I want to take some vacation but my employer won’t let me; don’t they have to give me a paid vacation?

A: No. There are some laws that regulate how such "fringe benefits" must be administered if they are offered, but there is no law that requires an employer to give you any kind of fringe benefits (vacations, sick days, pension, health insurance, disability insurance, frequent flyer miles, discounts, etc.).

Q: Doesn’t there have to be written policies, like an Employee Handbook?

A: No. However, whatever policies that do exist, formal or informal, written or unwritten, must be applied in the same way to "similarly situated" employees; that is, those with similar track records and jobs. Inconsistency, lack of communication with employees, or a failure to follow an established procedure can get the employer into trouble, but even an unfair policy can be legal if it is applied "equally unfairly." (Handbooks can, but anymore rarely do, create contractual rights.)

Q: They accused me of stealing. They didn’t give me any kind of hearing or due process. Don’t they have to prove it beyond a reasonable doubt?

A: Reasonable doubt applies only to criminal cases. Lawsuits against employers are civil matters. The employer does not have to prove anything to fire someone, although they should conduct some semblance of a reasonable investigation. Due process only applies when certain government workers are involved, not for a private business.

Q: But they didn’t call the police and I got my unemployment compensation; doesn’t that mean I have a case?

A: No, not necessarily. The Unemployment Compensation Act is unique. Its purpose is to provide people who are out of work with a little money until they find a new job, if they were laid off, fired, terminated, discharged, downsized, etc. through no major fault of their own. The money comes from a type of insurance fund the employers have to pay into. A former employee can collect unless the employer proves "job abandonment" or "gross misconduct", which have special definitions only for that statute and are not related to criminal prosecution. Whether you do or do not end up getting unemployment compensation has little or no bearing on your other legal rights, or lack of them.

Q: But isn’t that defamation of character if they said I was a thief?

A: Maybe, depending on exactly what they said, to whom and in what context it was said, and whether they had a good faith basis for thinking you were at fault at the time they fired you. Employers are allowed leeway in expressing opinions about the performance and conduct of employees, and get qualified immunity from slander and libel suits. Nonetheless, a wise employer will be careful about what they say when confirming past employment or giving references.

Q: They keep giving us drug tests and searching our lockers. Isn’t this against the constitution?

A: Not usually. The Fourth Amendment does not apply to private businesses, only to government agencies, and even then there are exceptions if public safety is involved. So drug testing and searching things or property such as desks that are on company premises are legal, with some limits. Also monitoring of your phone calls, Internet use and e-mail are legal.

Q: When they recruited me, they said they’d give me a promotion and a raise later on. That was two years ago. Can I sue them for breach of contract?

A: Well, you can try. However, you aren’t likely to prevail unless there is a very specific promise, preferably in writing. Terms and conditions of employment, like the job itself, are usually "at will" as long as basic laws are followed.

Q: I grieved a suspension with my union but I lost. It took two years to get to arbitration. Can I still sue?

A: It depends on the type of suit and whether the statute of limitations has run. Just because your union contract provides for arbitration doesn’t mean you lose individual rights. But the law doesn’t wait for private arbitration to finish, so move quickly to secure your rights. Arbitration clauses in other kinds of employment agreements also can displace your right to sue in some circumstances.

Q: When I disagree with my boss, he says I have a bad attitude. Aren’t they violating my First Amendment right to free speech?

A: "Bad attitude", like insub-ordination, is subjective, as perceived by the employer. The Constitution only applies to the government, not private companies, and even government workers need to be circumspect if what they say could be deemed disloyal or undermine management. There’s some protection from retaliation for true whistleblowers (as distinguished from mere whiners) or people pursuing certain statutory rights, but employees always need to be circumspect, respectful and professional in how they express themselves. Advice from our moms: "You get catch more flies with honey than vinegar." And speaking of flies, when it comes to simple disagreements or personality conflicts with a boss or coworker, "En boca cerrada no entran moscas." Spanish: Flies do not enter a closed mouth. Finally, there’s an old Cossack proverb: "If you are going to tell the truth, keep your horse by the door, and one foot in the stirrup."

Q: I carried a voice-activated tape recorder to my last meeting with my boss, to have a record of what a jerk he is. Can I use it as evidence in my lawsuit against my company?

A: Ever hear of Linda Tripp? Recording conversations without the other party’s knowledge can get you fired, as well as getting you into legal trouble. Using such tapes in evidence, then, is not impossible—only iffy and risky. Not to mention it is not illegal to be jerk.

Q: Can my boss just fire me and bring in his girlfriend, who is also his sister-in-law, to replace me?

A: There is nothing illegal about favoritism or nepotism. They are forms of plain old office politics that the law doesn’t touch, like who gets invited to what parties or whether you join the corporate softball team. But if the boss says you have to become his/her boy/girlfriend to keep your job, that is one type of sexual harassment. The other type is where a sexually charged atmosphere creates an offensive, abusive, hostile work environment a reasonable person can’t tolerate.

Q: My job is driving me nuts. They’re working us too hard and picking on us for stupid stuff. I’m not allowed to wear what I want to work. I am so frazzled; I am seeing a psychologist and taking Prozac. Can I go after my company for emotional distress or harassment?

A: You might have a Workers’ Comp. claim, but unless you have tangible physical problems or provably stress-induced illness, and good medical documentation with bills, it is very tough. If the stress is from discrimination or some other independent cause of legal action, then the compensatory damages for emotional harm are part of that case, not separate. But if it is merely that the place you are employed is just a truly nasty place to be, filled with evil people and office politics, and just about everybody is feeling it—THAT IS WHY THEY CALL IT WORK!

Marti J. Sladek is a sole practitioner based in DuPage County. Her practice has concentrated in employment law since it opened in 1995. She primarily represents employees and smaller businesses. She also accepts G.A.L. assignments.

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