The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.
What rights do I have if I’m laid off from work? Am I entitled to any severance pay, or unemployment? Am I entitled to any advance warning before I’m laid off? How soon after my last day am I supposed to be paid for the work I completed?
You are usually not entitled to any severance pay. That meaning extra pay, on top of what you’re owed for the hours that you worked. A written employment contract might require severance pay, as might a union agreement, but otherwise you’re out of luck.
If, like most people, you don’t have a written employment contract, or a union agreement, you’re what the law calls an “at will” employee. Meaning, you’re employed at the will the employer. If the employer’s will is to lay you off, they can. As long as an employer does not discriminate on the basis of race, sex, religion, or various other illegal considerations, an at will employee can be terminated for no reason at all.
You’re entitled to unemployment benefits if you weren’t fired for misconduct, and didn’t quit. Those benefits come from the Illinois Department of Employment Security, and result from insurance coverage employers pay for through unemployment taxes.
Your final paycheck is supposed to be paid “in full, at the time of separation, if possible.” Otherwise, the very latest it can be paid is “the next regularly scheduled payday.” If you ask your employer to mail you a check, they must.
Illinois law also requires that you get paid “the monetary equivalent” for all accumulated and unused vacation time.
Only large employers are required to give advance warning about layoffs. In Illinois, both the Federal and state “Worker Adjustment and Retraining Notification Acts” apply. Each “WARN” requires certain employers to notify workers 60 days in advance of “plant closings” or “mass layoffs.”
The main difference between the Illinois and Federal WARN is that our state version applies to smaller employers, and smaller layoffs. The Illinois WARN covers employers with at least 75 full-time employees. (It’s 100 for the Federal version.)
The Illinois WARN requires notice if at least 25 full-time employees are laid off, and that layoff amounts to at least one-third of the full-time employees at a site. It’s 50 for the Federal version.
A layoff of 250 full-time employees, regardless of what percentage of the workforce that is, also triggers the 60 days notice under the Illinois WARN. Under Federal law it’s 500.
Under both, if a layoff that was supposed to be for less than 6 months extends beyond 6 months, it’s an “employment loss” that triggers the notice requirement.
Under both, an employer who violates the law by closing down or laying off without giving proper notice is required to pay each laid off employee for up to 60 days of backpay and benefits.
There are three exceptions when an employer doesn’t have to give notice. A “faltering company” doesn’t have to if notice would scare off investors or lenders who might save the company. And notice isn’t required if the layoff or shutdown is unforeseeable, or results from a natural disaster.