"At-Will" Employment and Illinois Libraries

Scott Uhler and Philippe Weiss

I. Introduction

When hiring an applicant, the disciplining of an employee or terminating an employee, libraries and library districts should be mindful of the implications of the "at-will" employment doctrine in Illinois as it affects their employment decisions. Public employers, particularly libraries and library districts, have long relied upon the belief that their authority as "at-will" employers remains very broad or that the presence of language in their employment policy manuals indicating that employees enjoyed only "at-will" status, should protect libraries from liability when disciplining or dismissing employees.

However, judicial developments have increasingly chipped away at employers' authority with rulings that personnel policy manuals and/or written communications to employees may be viewed as forming a contract between employer and employee or creating new employee property rights. Even seemingly innocuous language in such manuals or communications can potentially confer employment rights on employees, which cannot be unilaterally restricted by the employer later. Therefore, it is important for libraries and library districts to scrutinize their employee policies and manuals to ensure mat they are not unwittingly impairing their own ability to make decisions regarding their employees' status, rights and benefits and to be aware of possible limits on library decisionmaking.

II. At-Will Defined

The general rule of law in Illinois is that employees hired absent statutory tenure or civil service protection may be discharged "at-will." The term "at-will" means that an employee can be discharged for any reason, or for no reason at all, so long as the employee is not fired because of illegally prohibited reasons such as age, sex, physical handicap, etc.

III. Erosion of At-Will Status

Increasingly, in addition to existing protected categories of workers (e.g., age, gender, disability), judicial intervention in the area of employment has resulted in additional job protections for employees. One area of particular interest to libraries, which are generally "at-will" employers, is those judicial decisions holding that certain employment rights can be created by the enactment of employment policies or the creation and dissemination to employees of a personnel manual. Courts have also looked back to employment manuals and policies in place at the time a given employee was hired to determine his or her contractual rights, even if termination occurred years later. In the past, when the "at-will" doctrine was applied in an unfettered fashion, employers need to pay less attention to their employee selection or dismissal process. If libraries and library districts made a hiring mistake, the library still had the general discretion to release an unsatisfactory employee. More recently in Illinois, courts have ruled that once the employment relationship is created, the employer's authority to dismiss or even discipline may be limited in certain aspects by language contained in employment manuals, in employer policies, and/or written communications with an employee which were made at, or subsequent to the time of hiring. Consequently, libraries and library districts should be aware that their policies, employment manuals and initial communications with employees may take on greater importance and could have longer lasting implications for the employer than anticipated.

IV. Restricting Libraries' Authority

In Illinois, state and federal courts are in agreement that "an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present."¹

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To create a binding contract between a library employer and employee(s), such a policy statement or manual must meet the following criteria:

"First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement."²

The recent decision of the Seventh Circuit Court of Appeals in Robinson v. McKinley³ is a good example such a "contract" and the possible complications of granting such protections in an employment manual. This decision has particular significance to the establishment, maintenance and/or revision of your library employment manual and policies, whereby subsequent administrators and/or elected board members routinely revise the employment manual and make employment decisions without necessarily referencing the prior provisions of the manual.

The Robinson case involved the hiring of a director of foster care by a community services organization in March 1979. At that time the organization based its policies on a 1978 personnel policy manual, which provided that "permanent employee status is attained upon successful completion of a tenure probationary period with the agency," and defined such probation as the period of the first six months of employment. The organization also provided the newly hired director with a letter stating that tenure would be achieved after successful completion of six months of service with the organization. In 1986, the organization published a new manual of personnel policies, intended to apply to all employees, which contained a disclaimer:

The agency reserves the right to modify or change any of the provisions of this manual any time without notice to employees. This manual is intended as a general guideline for its employees, however, the agency may at times depart from the guidelines set forth herein when it deems such departure to be warranted by circumstances. Nothing contained in this manual is or shall be construed to be a part of any agreement or contract between the agency and its employees.

In July 1989, the organization terminated an employee. The employee filed a complaint alleging that the organization's termination breached an employment contract, which had been created in 1979 when she received the letter and policy manual stating tenure was to be achieved in six months.

The employer in Robinson argued there was never any intention to create a perpetual employment contract with this employee. The court held that the letter received by the employee and the original 1978 manual contained language clear enough to create an employment contract. With respect to the organization's right to amend its employment policies, the court stated that the disclaimer inserted in the revised policy manual in 1986 was in essence a new offer made to the employees. Such an offer to create a new, binding employment relationship required an acceptance and return consideration and benefit to the employees for what was viewed as a "contract modification." The court implied that under similar circumstances, each time employers seek to modify employment policies or manual-affecting contractual rights of employees, they may have to individually negotiate with each employee and offer them some new and meaningful benefit to induce the employee to agree to the modified terms of their employment.

While the "tenure" promise in Robinson was fairly clear, many other common types of discipline clauses or procedural assurances often placed in employment manuals or policies are also potential sources of vested employment rights for library employees.

It is important to be aware that in addition to the possibility that representations or guarantees made in an employment manual can cause the creation of a "contract" with an employee, the courts have gone even further to hold that a local rule, municipal ordinance or a policy enacted pursuant to statutory rule-making authority can create a property entitlement for an employee that can limit the employer's discipline and discharge authority, even without meeting the prerequisites for a contract.⁴ These court decisions have held that, under certain circumstances, local governmental units, like libraries/library districts, can be bound by their own rules. Therefore, the simple act of drafting and adopting rules has taken on added significance relative to the potential legal impact of such policy-making on a library's relationship with its employees.

V. Practice Recommendations
a. Administrative Burdens

When an employer has generated employment policies and/or an employment manual setting forth the terms and conditions of employment with the library, a thorough familiarity with and understanding of those terms and conditions and their possible legal effect by the library administration is important.

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Further, there may even be a need, as demonstrated in the Robinson case discussed above, to refer back to the policies in existence both at the time that an individual employee was hired and during the employee's term of employment. The Robinson decision illustrates the reasons why libraries should make an effort to keep track of and refer back to previously existing and modified policies. Unfortunately, the Robinson decision renders an employer's legitimate attempts to treat all employees equally increasingly difficult if different rules apply to similar classes of employees.

b. Record-keeping

It is advisable under current law that libraries retain copies of prior policies, even when they are revised or replaced. Maintenance of the records will allow the library to refer back to the policy manuals and written communications in place dating back to the time an employee was hired, disciplined or discharged, in order to best determine what their obligations might be with respect to an employee.

c. Regular Review of Employment Manuals

Protecting yourself in this area should include regular review of your employment manuals or policies, to determine that they continue to accurately reflect the library's intentions regarding employee benefits and rights. To the extent a library wishes to retain broader flexibility in employment decisionmaking, employment policy manuals should avoid overstating their purpose and avoid implying or stating that employees are entitled to particular rights related to tenure, classification and benefits. Policy manuals should also contain express language making it as clear as possible that the manual is not intended to create an employment contract. Although not covered in this article, such review should also ensure that the manual or policies remain in compliance with all current state and federal laws.

d. Minimizing Rights Granted

Even if your manual grants, or arguably grants, enhanced employment protections to existing employees, revision of the manual can be lawfully applied to all new hires, i.e., and applied prospectively. Further, an employer may wish to consider offering existing employees with "tenure" additional benefits in return for relinquishing such job protection.

VI. Conclusion

Libraries and library districts should be aware of the evolving parameters of the employment "at-will" doctrine in their hiring, firing and employment policy decisions. The existence of "at-will" employment can impact the policy-making activities of the library employer. This area of the law has been changing and these changes require that greater scrutiny be devoted to employment manuals and policies to avoid unintended results. Care should be taken to review your policies or manuals regularly and to be aware of the risks involved when adopting, revising or amending such manuals or policies.

End Notes

1. Duldulao v. St. Mary of Nazareth Hospital Center, 115 Ill. 2nd 482, 485 (1987); See also Hohmeier v. Leyden Community High School District 212, 954 F2nd 451, 461 (7th Cir. 1992); Robinson v. McKinley, 19 F.3d 359 (7th Cir. 1994).

2. Id at 485.

3. 19 F.3d 359 (7th Cir. 1994) In addition to Robinson, there are numerous other federal and state court decisions which further create and define employer and employee rights in this area.

4. See e.g., Hohmeier v. Leyden Community High School District 212, 954 R2nd 461, 464 (7th Cir. 1992); Domiano v. Riover Grove, 904 R2nd 1142 (7th Cir. 1990); Lewis v. Hayes, 152 Ill. App. 3d 1020 (3d Dist. 1987).

*Scott Uhler is a partner and Philippe Weiss is an associate with the firm of Klein, Thorpe and Jenkins, Ltd., with offices in Orland Park and Chicago. Klein, Thorpe and Jenkins, Ltd. is a law firm specializing in local government law, primarily in the representation of Libraries and Library districts, cities, villages, school districts and park districts.

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