Friday, August 21, 2009


By David McCarthy

Illinois is still a work at will state.

Put another way, the general rule was, and still is, that the employment relationsip is terminable at will by the employer or by the employee. The employer's right might be diminished or impaired by contract (e.g., a collective bargaining agreement) or by law. The fetters imposed by law on an employer's right to end the employment relationship at any time for any reason have been a hot topic for a long time. For years the fastest growing category of "employment-discrimination" claims has been not race, or sex. or national origin, but retaliation.

Small wonder.

A retaliation case is easy to manufacture, easy to prove, and it pays well. It starts by engaging in "protected activity" e.g., submitting to the boss a false and malicious claim that a co-worker and rival has committed sexual harassment will suffice if a true and honest complaint is unavailable. The law will repay the sociopath's mendacity by heaping rewards and protection on him or her.

A maliciously false complaint will gain for the employee the functional equivalent of a no-cut contract.

The employer who dares to end the employment relationship will be sued for retailiatory discharge, will be presumed guilty in most cases, and will be found guilty unless the presumption is perfectly overcome: the jurors possessed of Alan Alda sensibilities must be convinced that there was not even a tinge of retaliatory motive. Yet the more outrageous and unforgivable the complaint, the greater the chance that notions of "payback" figured in the decision to terminate.

It is not for nothing that claims of "retaliation" are a growth industry. If you believe this is an exaggeration, call us for details about the disgraceful state of the law.

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