The Difference Between Legal and Illegal Terminations


Have you been fired or laid off from your job in the state of Illinois? Are you wondering if you were fired illegally and may have some recompense coming to you? Every state has different laws regarding what constitutes legal and illegal termination from employment. Illinois is an ‘at will’ state, meaning that employers are free to fire or lay off employees at any time, without cause, reason or notice. The same applies for employees in Illinois as well, who can quit legally at any time without cause, reason or notice. Within those liberties, however, are some restrictions. There are ways an employer in Illinois can terminate an employee illegally, and the penalties for doing so can be steep. Penalties for employers found guilty of wrongful termination may include punitive damages, reinstatement of the former employee’s employment, payment of front and/or back wages and coverage of the wrongfully fired employee’s legal fees. If you believe that you have been wrongfully terminated in the state of Illinois, hire an employment law attorney to represent you and help you take legal action. What follows are the ways in which a termination may be illegal, or illegal, in the state of Illinois.


An employee’s color, race, sex (including pregnancy, sexual orientation and gender identity), religion, disability, age (40 years of age or older) and genetic information cannot be used by employers in disciplining and firing decisions. HIV status, sickle cell status and veteran status are also personal characteristics that are protected from discrimination in employment. Therefore, if two employees are being considered for termination, none of these factors can be used to determine which of the two employees to terminate. In addition, employers laying off employees are not allowed to lay off the oldest employees because of their age. The state of Illinois further extends these protections from discrimination to include a person’s citizenship status, ancestry, national origin, marital status, military service, unfavorable military discharge and physical or mental disability. Claims of discrimination in termination may be filed with the Illinois Human Rights Commission or the U.S. Equal Employment Opportunity Commission. In order for a charge of discriminatory termination to be investigated, the accused employer must have at least 15 employees working for him or her. Exemptions from this rule include state government employees and public contractors. Another exception to this rule is that charges of sexual harassment, retaliation or discrimination related to a disability can be filed against employers regardless of how few employees he or she might have.

Breach of Contract

If the employer and employee have a written or verbal contract stipulating conditions of employment including termination, this contract may supersede Illinois’ at-will employment law. In other words, if an employer fires an employee in violation of their mutual contract, that termination may be illegal and the employee may be entitled to recompense including possible rehiring by the employer. Illinois also recognizes what is known as an ‘implied contract’. An implied contract may be a promise made either verbally by your employer or written in official company documents for the purposes of retaining your employment. A claim for breach of contract in termination would be pursued in civil court.

Public Policy Exceptions and Protected Activities

Public policy exceptions to Illinois’ at-will employment status make it illegal for employers in the state to fire employees for engaging in activities that are legally permitted and deemed to be in the best interest of the public. For example, an employee cannot be fired for filing a legitimate worker’s compensation claim. Other protected activities include serving jury duty, joining the National Guard, resisting a discriminatory company policy or asking for legitimately earned overtime pay. Both the U.S. government and the state of Illinois protects whistleblowers, or employees who notify the appropriate authorities of a workplace violation. Unites States whistleblower protections apply primarily to public policy workers, but the Illinois whistleblower protection extends to all private sector workers in the state as well. Public policy exceptions are among the most, if not the most, widely used exemptions from at-will employment regulations.


Employees cannot be fired in retaliation for exercising their legal rights. In states like Illinois, public policy laws and retaliation statutes may overlap.

Good Faith Violations

Employers in Illinois are beholden to a concept known as the ‘implied covenant of good faith and fair dealing’ which means that an employer cannot terminate an employee in order to avoid compensating the employee according to terms of the employment. For example, an employer cannot fire an aging employee in order to keep from paying him or her retirement benefits. Neither can an employee be fired immediately prior to receiving a large commission that is due for a recently completed sale.

Constructive Discharge / Forcing to Resign

Constructive discharge, also known as constructive termination or constructive dismissal, occurs when an employee is forced to resign due to a hostile working environment created by the employer. This is a form of wrongful termination under the law, as is any situation in which an employee is forced to resign due to actions of the employer intended to produce that result.

Actual Firing

Illinois law declares that in order for a termination to be deemed to have officially occurred, an actual firing must take place. An actual firing consists of a written or verbal statement of termination.