Law Office of John S. Xydakis, P.C.
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55 E. Washington St .
Chicago , Illinois 60602
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RETALIATORY DISCHARGE OR WRONGFUL FIRING

        Although retaliatory discharge, also known as wrongful firing, can be based on several things, in Illinois, the most common scenario is where an employer fires an employee for exercising his or her rights under the Illinois Workers' Compensation Act and seeks benefits.  A retaliatory discharge lawsuit is a separate and distinct claim from one seeking workers' compensation benefits.  Benefits under the Illinois Workers' Compensation Act must be adjudicated solely in the Illinois Workers' Compensation Commission.  A retaliatory discharge lawsuit, on the other hand, is a separate and distinct lawsuit that is filed and pursued just like any other lawsuit in the Courts of Illinois.

        If a jury finds that an employee has been fired because he or she filed a claim for workers' compensation benefits, substantial money damages may be available.  These would include all lost wages, all lost future wages, money for emotional pain and suffering and punitive damages to deter the employer's conduct in the future.  Although a retaliatory discharge claim may be hard to prove, successful plaintiffs may be awarded substantial money damages and unlike benefits received pursuant to the Illinois Workers' Compensation Act, there is no cap on this amount. 

        As noted below, from a study done in California, the verdicts can be substantial:

        In order to prevail on a retaliatory discharge lawsuit, you must prove that you were fired because you exercised your rights under the Illinois Workers' Compensation Act and sought benefits.  The employer will inevitably argue that you were fired for another reason.  Hence, you must convince the jury that the real reason is because you sought benefits.  This may be hard to do.  However, even if the employer does not state "I am firing you because you filed for workers compensation," you still can prevail. 

        Courts recognize that circumstantial evidence to prove the employer's motive is necessary and is enough to prevail at trial.  Some of the factors that you can use to prove that you really were fired for filing for workers' compensation benefits are showing that:

1.         the employer had job openings and didn't offer you the job;

2.         there was no other reason for firing you;

3.         the firing deviated from the normal procedure;

4.         you were treated differently after you filed for workers compensation benefits;

5.         your employer or others in the company told you that they did not like that you filed for workers compensation benefits or that filing for benefits is wrong;

6.         your employer's reason for firing you is false;

7.         a close proximity in time between your filing for workers' compensation benefits and your firing;

8.         receiving bad performance reviews after you filed for benefits even though throughout your job history you had positive performance reviews;

9.         difficulty collecting workers compensation benefits;

10.     showing your employer retaliated against other persons who filed for workers' compensation benefits; or

11.     showing your employer criticized job performance or fabricated disciplinary issues after accident.

        After you have sought workers' compensation benefits and have been terminated, you should immediately seek the assistance of an attorney to see whether you have a viable claim for retaliatory discharge.  In addition, you should start keeping a daily log, in a spiral bound notebook, of all the job searches you undercut after you have been fired.  This is important because after you are fired, you have a duty to "mitigate" your damages.  This means that you have a duty to go and look for other work.  If you do not, you may be precluded from obtaining recovery of money damages for lost wages.  This does not mean that you have to be successful, but you have to show that you have been diligent in seeking other employment.

If you think that you have a retaliatory discharge claim, don't delay.  There is a statute of limitations in which you need to file your case.  If you want a free evaluation of your case, please fill out the form by clicking here: Chicago lawyer needed for wrongful firing.

Law Office of John S. Xydakis, P.C.