Chicago Executive Lawyer Blog
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Many executives call our offices looking for help when they have been discharged.  They were strong performers who didn’t do anything wrong, or maybe had a minor infraction and never even got a written warning.  They are certain that because of their strong performance, they can’t just be fired, right?

Wrong.  The status quo in Illinois is that employment is at-will.  This means that employment may be terminated at any time for any reason, or even no reason.  However, this does not mean that employers are given free-range to fire as they please without repercussions.  There are some protections which employees have.  When employers terminate employees for these protected reasons, it is known as wrongful termination. 

Wrongful termination is termination from employment for an illegal reason.  Here is a list of some of the most common illegal basis for termination:

  • Discrimination on the basis of a protected characteristic, such as race, gender, religion, age, disability, national origin, etc. 
  • Complaining about improper compensation practices
  • Retaliation for Whistle-blowing

Employees subjected to wrongful termination may be able to recover damages, including back pay, legal fees, emotional distress, and punitive damages. 

It’s not always clear whether an employee has been terminated for an illegal reason or not.  The stated reason is not always the true reason for termination.  A knowledgeable employment attorney can help you determine if you have suffered wrongful termination. 

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No. That is the simple answer to the following questions: Can I be fired for my race, gender, disability, national origin, or for being at least forty (40) years old? Can I be fired for my alien status? Can I be fired for making a complaint that my employer violated the Occupation Safety and Health Act (“OSHA”)? Can I be fired for refusing to take a lie detector test? Can I be fired in retaliation for making a complaint to my employer that I am facing discrimination? Can I be fired for refusing to do anything illegal for my employer, or for making a report that my employer is violating public policy?

While many employees, even executives, are at-will – and can be terminated for almost any reason – federal law protects employees so that they cannot be fired in certain situations.

An employer cannot terminate any employee for a discriminatory reason because federal law protects certain classes of people. Thus, an employer cannot fire someone for the individual’s race, gender, disability, national origin, or if the person is at least forty (40) years old.

In addition, the Immigration Reform and Control Act prevents an employer from firing an employee due to the employee’s alien status.

Pursuant to the Employee Polygraph Protection Act, an employer also cannot fire an employee that refuses to take a lie detector test.

Federal law also prevents retaliation, and protects employees that make complaints regarding discrimination. For example, an employer cannot legally fire a female employee because she made complained the employer discriminated against her due to her gender. Notably, she would not have to prove that discrimination actually occurred. Instead, she has to prove that her employer fired, or retaliated against, her for making a complaint about the discrimination.

Similar to protections for general retaliation, an employer cannot fire an employee for making complaints about OSHA violations, or the employer’s violations of health and safety standards.

Finally, an employer cannot fire an employee when the termination would violate public policy. Thus, an employer cannot fire an employee that refuses to engage in any illegal activity, an employee that makes complaints regarding an employer’s illegal activities, or an employee that uses his or her legal rights, such as taking medical leave.

Ultimately, being an at-will employee does not provide an employer with carte blanche to terminate individuals. An employer cannot fire an employee for a discriminatory reason, in retaliation when an employee exercises his or her legal rights, or in violation of public policy.

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Terminating an employee is one of the most difficult tasks to undertake as a manager. Done well, and you will help move your former employee out of the organization with a clear, fair message about why he or she is leaving. Done poorly, and you may send your former employee packing with (at least the specter of) potential claims against your company. Below are several steps to avoid to help ensure that your former employee transitions smoothly.

Don’t fire an employee without warning.

If possible, give the employee an opportunity to correct subpar behavior before resorting to termination as a disciplinary action. Though there are some actions that require immediate termination (theft or violence, for example), many performance issues can be addressed with proper coaching and a bit of patience. Provide written warnings to allow the employee to correct his or her behavior. Consider placing the employee on a Performance Improvement Plan []. These steps will help determine whether the employment relationship can be salvaged and create documentation that will support the reasons for termination. Additionally, this will ensure that the employee is not blindsided with termination, allowing the employee to make transition plans of his/her own to minimize disruption in work and income.

Don’t fire an employee over email or another form of communication. Face-to-face is highly recommended.

Have the courtesy (and courage) to fire the employee face-to-face. If an in-person meeting is not feasible, find a way to video conference. Written communication is devoid of emotion and could lead to mixed or unintended messages. Terminating an employee solely in writing precludes the expression of any non-verbal communication (such as facial expressions that convey empathy or compassion) that could help to soothe an otherwise disgruntled person. This is not to say that you should not memorialize the termination by letter; indeed do. Nevertheless, deliver the news in person, too. Face-to-face communication is truly the only respectful way to have a serious conversation about one’s livelihood.

Don’t deviate from your script.

Prior to meeting with the employee you will terminate, work with your attorney and/or HR person to draft talking points to communicate the reasons for termination to the employee. Though you should not read to the employee, do not deviate from these reasons, even if you feel that there are multitudes of others that legitimize the employee’s firing. It is important that you (and other members of your team) remain consistent about the reasons for termination, especially since in some circumstances courts have viewed shifting explanations for an employee’s termination as circumstantial evidence of discrimination.

Don’t allow the employee to leave with any company possessions.

Ensure that you have recovered all items belonging to the company from the employee before he or she leaves the premises – including electronic devices (phones, computers, hard drives, flash drives), keys, documents, supplies, and any other proprietary items or information. Obtaining these items prior to separation is much easier (and less expensive) than after.

Don’t allow the employee to have continued to access to any company applications or information systems.

A disgruntled former employee could potentially wreak havoc on your organization if he or she is left with unfettered access to your company’s applications or information systems. From obtaining confidential customer/client information to removing sensitive proprietary data from your organization, the ways an employee could exact revenge for his or her firing are endless. A best practice is to eliminate access to company data simultaneously with the termination conversation and offer to collect any non-company data the employee may have stored on company devices following the meeting.

Don’t end the termination with a sour note; try to provide words of encouragement.

Having a genuinely empathetic attitude and demeanor will help convey to the employee that you understand the seriousness of the action that you are undertaking and the impact that it will have on that person’s life. Offer the employee encouragement by identifying a trait, skill, or strength that might help lead the employee to his or her next endeavor.   The adage, “it is not what you say, but how you say it” could not be more true when it comes to employee terminations. Choose your words carefully to minimize the possibility of liability to your company.


It is always best to consult with an advisor prior to undertaking a difficult employment-related task such as an employee termination. He or she can help you determine when termination may be appropriate, craft an outline of the termination conversation, and determine whether to offer severance or some other benefit in exchange for a release of any claims the departing employee may have against your company.

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Many executives would likely admit that handling employee terminations is their least favorite part of the job. The process can be unpleasant, emotionally charged, and worse, it can subject an employer to legal liability if mishandled. If you are considering terminating an employee, this post provides practical advice on how to carefully document your decision and carry out the termination. These steps can help you avoid common problems, both from a legal and practical perspective.

  • Check your documentation. Have you previously disciplined or written up the employee? Make sure that you have adequately documented the reasons for the termination. This will help make sure that the termination does not come as a complete surprise to the employee, and will also help to support your position in the event of any litigation relating to the termination.
  • Prepare a termination letter. It can be helpful to provide the employee with written notice of his or her termination. If there were multiple reasons for the termination, however, it can be difficult them all in the written termination notice. For this reason, it may be best not to include any of the reasons for termination in the notice rather than risk missing something critical. In any event, since most workers are employed on an at-will basis, the employer is not required to have or to give a reason for the termination at all.
  • Decide whether to offer the employee a severance payment and prepare a severance agreement. There are many reasons why offering severance in exchange for a waiver of all legal claims can be beneficial. It can help make the separation much easier if the employee knows that he or she will have some income during the transition period. In addition, it can help achieve closure for your business if you know that the employee will not be able to assert any legal claims against you in the future.
  • Plan the day of the termination and termination meeting. Be sure to collect all company property from the departing employee, cancel credit cards, and change passwords and access codes as necessary. If you intend to have a termination meeting, invite at least one neutral witness who does not have any other outside information about the situation. If you present a severance agreement to the employee at the termination meeting, advise the employee that he or she should feel free to consult with an attorney about the severance agreement prior to signing.


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One job ends, and you would like to start a new job. But as the new job begins, the former employer files a lawsuit regarding a non-compete clause.

Unfortunately, this situation arises more often than it should. A lot of times, the non-compete language will be very broad, both in distance and in time. Employees and executives do have some options in dealing with – or avoiding – these issues.

First, hire an employment attorney to help resolve these issues. This area of law is fairly broad, nuanced, and constantly evolving. An experienced attorney in this area of law is critical to resolving these issues. An attorney can help fight the lawsuit, or help negotiate a practical solution to the problem.

Second, determine which parts of the non-compete are enforceable. Courts scrutinize these clauses, and might not enforce a completely overbroad non-compete. Theses clauses can be overbroad both in terms of time and geographic area.

Third, negotiate with the former employer to try to resolve everything as efficiently as possible. Non-compete disputes can be expensive for all parties, so everyone has an incentive to resolve these issues sooner rather than later.

Finally, be proactive. The best way to avoid non-compete disputes is to negotiate these issues at the start of the first job. Often, non-compete language is an afterthought in a contract. Negotiating a reasonable non-compete when starting a job is an easy way to save a lot of hardship – and money – later on.

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Restrictive covenants in employment contracts are becoming more and more common. “Restrictive covenants” typically limit an employee’s ability to benefit from an employer’s confidential information or business following the conclusion of the employment relationship. Common restrictive covenants include restrictions on the use of confidential information, anti-solicitation provisions, and non-competition provisions.

Non-solicitation and non-competition provisions may look very similar to one another. The main difference is that non-solicitation provisions restrict a former employee’s ability to interact with customers or clients of the employer. As an example, a non-solicit provision may restrict a former employee from contacting any of her former employer’s customers for a period of two years after the end of the employment relationship.

Non-competition provisions typically restrict a former employee’s ability to work for a competitor of an employer, or even in the same industry. They are usually limited in time and scope. As an example, a non-competition provision may restrict a former employee from working for any competitor of the employer within a geographic radius of ten miles for a period of two years after the end of the employment relationship. Non-competition provisions can be much more onerous and problematic, because they greatly restrict an employee’s ability to earn a living.


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When starting a new job, it is easy to overlook clauses in an employment agreement or contract. For a lot of people, the key is “how much am I getting paid?” However, most executives don’t stay with the same company forever. The other clauses in the contract become very important when an employee – especially an executive – leaves a company. By overlooking the non-compete language in the initial agreement, executives are putting themselves in a very costly predicament that could also negatively impact their ability to start a new job.


Non-compete and non-solicitation agreements can be drafted very broadly to prevent an executive from working within a certain amount of miles from the initial employer, or even within the same industry for a period of time, sometimes more than two years. Fighting a non-compete in court can be very expensive. These clauses can also include language requiring the executive to pay for the company’s attorneys’ fees or the company’s lawsuit related expenses.


There are several aspects of non-compete clauses that are important to understand. First, there is a recent case in Illinois that indicates a non-compete will be invalid if an employee works for an employer for less than two years. See Fifield v. Premier Dealer Servs. Inc., 2013 IL App (1st) 120327. An employer might attempt to circumvent this ruling by providing additional money or benefits to an executive for signing the non-compete, or potentially by applying a different state’s law.


Second, if a non-compete is too unreasonable, courts will either modify the language or find the clauses invalid. However, going through the legal process is still very expensive. Thus, it is much more cost effective for both the executive and the employer to negotiate the issues at the forefront. These negotiations can help draft a fair and reasonable non-compete clause that will not lead to a lawsuit later.


Finally, be careful about language giving the company its attorneys’ fees. Sometimes the language used is very broad, and can put the executive in a difficult – and costly – position.


Ultimately, hiring an attorney that will adequately review the non-compete clause and negotiate the key issues is a very valuable investment. It will prevent spending a substantial amount of money later in a lawsuit.


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Managing partner, Kristen Prinz, appeared on First Business with Bill Moller to discuss the confusion over freelance workers in the labor market.

The 9th Circuit recently ruled that FedEx was misclassifying its workers as independent contractors.  There is a lot of confusion regarding misclassification of employees as independent contractors.  As Ms. Prinz explained, “what it really comes down to is do you [the employer] exercise discretion and control over these employees and there is a lot of grey area in that.”

Companies often think they can save money by classifying their workers as independent contracts because it allows them to avoid paying overtime, employment taxes, and benefits.  However, misclassifying employees as independent contractors can be very costly because there are substantial penalties and fees at risk. Careful consideration should be made when deciding whether a worker is an employee or contractor.

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By: Christina Hynes Mesco

Leaving a job, especially one that compensates well, is a very difficult decision for any executive. After investing what seems like endless time and energy into an organization’s success, it can be difficult to let go and pursue new opportunities. Sometimes there may not even be an obvious reason driving your departure, but you sense that it is time to part ways with your employer nonetheless. Below are a few indications that a change is in order.


Professional growth has become stagnant.

It may be time to seek new employment when your professional opportunities are severely limited or stall, despite your best efforts to ensure that you possess the requisite skills, experience, education, and characteristics for the next step in your career. Passed over for the promotion for a third time? Not reaching that elusive VP status? Receiving no feedback regarding your employment performance? Before concluding your employer is to blame, request candid advice from a person in the organization whom you trust (preferably senior to you) to determine whether you are objectively qualified and ready for the next step in your career and whether any impediments to further growth with your current employer are surmountable.


Boredom or resentment is creeping in from lack of new challenges.

Feeling bored at work? You are not alone. A 2005 Washington Post article posited that 55% of all U.S. employees are not engaged at work. And the amount of “work” you are actually performing has little to do with whether you feel bored or unchallenged. If your boredom expands beyond the natural cycles of activity within your business or industry, your current employment is probably not engaging your skill set. Feeling that your talents are underutilized is not healthy and can leave an employee feeling disconnected from the organization or even resentful of co-workers and management. If you have exhausted the search for ways to keep yourself occupied or challenged in your current employment (volunteering for new projects or seeking additional job-related training, for example), consider that you may not be feeling run-of-the-mill boredom, but that a career change is necessary. Is there a time that you can remember being happiest and feeling professionally fulfilled in your company or in any employment setting? Seek out that type of work and find your true calling, because it may not be where you are.


The company seems to be failing.

Sales have plummeted. Management is scrambling to evaluate personnel and productivity. Colleagues are departing around you. You are asked to shoulder more responsibilities without more pay, or even worse, you have been asked to take a pay cut. If you sense that the company is heading in the wrong direction, it may be time to jump ship. Transitioning from one job to another without a break in employment is always easier than rebuilding after the company has failed or you have been laid off. Most times, it is best to seek new opportunities ahead of a corporate catastrophe to maintain your own personal income stream and minimize any perception of your culpability in the company’s failing. Consider your exit strategy, however: even if you do not have a pre-negotiated employment agreement that might provide severance upon your departure in certain scenarios, you may be able to leverage a severance package if the company is in the midst of layoffs.


Your health is suffering from stress or unhappiness.

If your body or mind is beginning to pay the price for what you do in your working hours, a job change is imperative. If you have tried to address the factors contributing to your stress and unhappiness in the workplace to no avail (yoga at lunchtime…or just stopping to take a lunch break at all), it may be time to leave. According to a recent Forbes article, 42% of employees have changed jobs due to stress. And it is easy to understand why: workplace stress or unhappiness does not stay at work. It almost always affects your personal relationships, sometimes with disastrous results. No matter how well you are compensated or how much power and prestige your position wields, you cannot enjoy it if you are not healthy.


You dread getting up and going to work.

Perhaps none of these categories applies to you, yet you still dread getting out of bed in the morning to get to your job. If you have ruled out personal factors (such as depression), it may be time to consider moving on. Talk with a trusted friend or advisor to understand what factors are leading to these feelings. Do you like the work you perform? Is the environment the right fit for you? Are you being bullied or harassed by a colleague or a manager? Taking careful inventory of the source of those negative feelings can help you design a solution – and may lead you to the career you have always wanted.


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By: Jessica Fayerman

Great leadership is more than simply delegating assignments and reviewing work. True motivation requires you to be attuned to not only the needs of your colleagues and workplace, but to your own behavior as well. Are you unknowingly projecting an image that you do not want your co-workers to imitate? This post will highlight three ways in which you may not be effectively modeling leadership in the office and how you may go about changing those behaviors.

  • Mistake # 1: Refusing to delegate important projects. When you only delegate “unimportant” projects, not only does it cause you to burn out because you are reserving all the critical projects for yourself, but it conveys a sense that you do not trust your team. When you take risks by allowing your team members to participate in crucial assignments, you are taking a big step in helping to develop the careers of your team and improving morale.


  • Mistake # 2: Not modeling exemplary workplace behavior. When you take excess time off, make personal calls in the office, and communicate unprofessionally, your team members may start to think that such behavior is the norm in your workplace. Many executives are unaware of the degree to which their team members imitate them and pick up their own work habits. Model workplace behavior begins with you.


  • Mistake # 3: Not making time for your team. It can be easy to think that your most important function at your office is to immerse yourself in your own work. However, this may convey the image that you are inaccessible for the guidance that your team needs to grow. Block out specific times on your calendar in which you guarantee that you will be available to your team to answer questions and provide feedback.

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