An  Illinois Appellate Court recently found that the Illinois Whistleblower Protection Act (740 ILCS § 174/1, et seq.) (IWA) does not require that the employee’s disclosure is the first, or only, disclosure of a violation of a state or federal law, rule or regulation for that disclosure to form the basis of a cause of action.  Willms v. OSF Healthcare Sys., No. 3-12-0450 (3d Dist. Feb. 26, 2013) (available here). 

 

Background

Plaintiff Gary Willms was an employee of Defendant OSF Healthcare System (OSF), and worked as the maintenance director at one of OSF’s healthcare facilities for nine years.  In 2007, OSF hired an outside contractor to install a sidewalk.  Initially, an inspector with the Illinois Department of Public Health (IDPH) found that the sidewalk complied with regulations governing “handicap access.”  During a subsequent inspection in August 2008, however, the inspector determined that the sidewalk slope was approximately 1 inch too steep.  The inspector informed Willms of the violation and provided until October 24, 2008 to fix it.  Willms requested that the contractor measure the slope again, and the contractor confirmed that the slope was in fact too steep.   

According to Willms, he then informed the administrator of the facility of the deadline to repair the sidewalk and gave her a copy of the inspector’s report.   Willms also informed the administrator that he had the sidewalk measured and that the subsequent measurement confirmed the accuracy of the inspector’s determination.  Though Willms had the authority to conduct routine maintenance repairs, he maintained that his duties did not include performing major repairs or construction.  

The sidewalk was not repaired by the deadline set by the inspector, and when the inspector returned in February 2009, the repair had not been made.  At that time, Willms told the inspector the slope had not yet been changed.  The inspector then issued an order requiring construction on the sidewalk to begin immediately.  The facility administrator told Willms that the IDPH had assessed a $33,600 fine to the facility and, according to Willms, the administrator added that the fine would cost either her or Willms a job.  Willms’s employment was terminated on March 13, 2009. 

Willms filed complaint in Illinois state court alleging he was discharged in violation of the IWA, asserting he was retaliated against for disclosing information to a government agency in violation of Section 15 of the IWA, which states: 

An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe the information discloses a violation of a State or federal law, rule, or regulation.

740 ILCS § 174/15(b) (emphasis added).  In particular, Willms alleged that, when he informed the inspector that the sidewalk had not been repaired by the deadline he “disclosed” a violation of a state regulation under state whistleblower law.    The trial court agreed with OSF’s position to the contrary and granted its motion to dismiss. 

Appellate Court’s Decision

On appeal, Willms argued that the IWA protected him because he reasonably believed there was a violation of a state regulation and he disclosed that information to a government inspector.  OSF, on the other hand, maintained that Willms did not make a protected disclosure because the inspector discovered the violation and Willms did not affirmatively request an inspection.   Agreeing with Willms’ interpretation of the statute, the appellate court reversed the trial court’s determination.

The appellate court found that the “language of the Whistleblower Act seems plain and consistent” and focused on the “employee’s belief[,] . . .  not on what the government agency already knows or could discover.”  Slip op. at 5.  It also underscored the absence of language in the statute indicating “that the employee’s disclosure has to be the first, or only, disclosure o the violation.”  Id.  And it distinguished the IWA from the Illinois Whistleblower and Reward Act, noting that, in the latter, the legislature imposed an “original source” requirement. 

Implications

The court’s fairly expansive interpretation of the term “disclosure” in the IWA, and its focus on the plaintiff’s belief, could encourage additional whistleblower retaliation claims in Illinois.  However, the absence of specific standards governing reliance on the plaintiff’s belief could lead courts to impose limits on the reach of this decision. 

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Noa Baddish Noa Baddish

Noa M. Baddish is a senior counsel in the Labor & Employment Law Department. She is a member of the Sports, Employment Litigation & Arbitration, Class and Collective Action, Wage & Hour and Whistleblower & Retaliation Practice Groups.

Noa’s practice concentrates on all…

Noa M. Baddish is a senior counsel in the Labor & Employment Law Department. She is a member of the Sports, Employment Litigation & Arbitration, Class and Collective Action, Wage & Hour and Whistleblower & Retaliation Practice Groups.

Noa’s practice concentrates on all aspects of labor and employment law. Her employment litigation practice in state and federal courts includes class and collective actions and defending claims of discrimination, harassment, breach of contract and violations of wage and hour laws. Noa represents Major League Baseball and its clubs in an ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. In addition, Noa has represented clients in the media and entertainment and fashion industries in lawsuits brought by unpaid interns in wage and hour disputes.

Noa also provides significant assistance on counseling matters on a wide array of issues for clients in various industries, including, but not limited to, sports, law firms, financial institutions, media and fashion.

Noa has been recognized as a Rising Star by New York Super Lawyers since 2015. She has authored and contributed to several articles and newsletters on employment and labor topics, including “State Whistleblowing Laws Provide Whopping Verdicts,” New York Law Journal (January 2014). Noa is also a frequent contributor to the Firm’s Whistleblower Defense blog.

Previously served as Assistant General Counsel to the New York City Mayor’s Office of Labor Relations, Noa defended the Mayor and City agencies against both employee grievances at arbitration and improper practice petitions before the Board of Collective Bargaining. Prior to that, she was a Law Clerk to Judge Ellen L. Koblitz of the Appellate Division of the New Jersey Superior Court.

While in law school, Noa served on the Executive Board as notes and articles editor of the Fordham Urban Law Journal.