The Illinois Whistleblower Act, 740 ILCS 174/1 et seq., provides that “[a]n employer may not retaliate against an employee for refusing to participate in an activity that could result in a violation of a State or federal law, rule or regulation.” In order to sustain a cause of action against an employer under the Act, employees must establish that (1) they refused to participate in an activity that would result in a violation of a state or federal law, rule or regulation and (2) the employer retaliated against them because of that refusal.
In Sardiga v. The Northern Trust Co., Appeal No. 1-09-2930, the Appellate Court for the First District recently was called upon to decide what the phrase “refusing to participate” means under the Whistleblower Act. The employee argued that the Act did not require outright refusal; instead, he contended that his repeated complaints and questions to the employer about the activity should suffice. The employer contended that because the language of the Act was clear, the employee must actually refuse to participate in the activity in order to qualify under the Act.
The Appellate Court, citing section 20 of the Act, found that the “language of the statute is unambiguous. ‘Refusing to participate’ means exactly what it says: a plaintiff who participates in an activity that would result in a violation of a state or federal law, rule or regulation cannot claim recourse under the Act. Instead, the plaintiff must actually refuse to participate.” As support for its position, the Appellate Court referred to section 15 of the Act which protects employees who complain to a government agency about an activity that the employee reasonably believes constitutes a violation of a state or federal law, rule or regulation.
The Appellate Court concluded that “[t]he Act protects employees who call attention in one of two specific ways to illegal activities carried out by their employer. It protects employees who either contact a government agency to report the activity or refuse to participate in that activity. An employee who does not perform either of the specifically enumerated actions under the Act cannot qualify for its protections.”
Therefore, while there may be other common law claims afforded to employees in Illinois who suffer other adverse employment actions for their complaints to their employer about illegal activity (such as retaliatory discharge) in order to be afforded the protections of the Whistleblower Act the employee must make the difficult decision to either report the activity to a government agency or refuse to participate in that activity.