Rule Barring Former Public Employee Lawsuits

Court Rules Former Public Employees Have Only Six Months To Bring Suit For Backpay

By Joshua D. Herman

Plaintiffs are required to bring an action enforcing their legal rights within a limited time after they are injured.  A statute of limitations typically establishes the maximum time after an injury that a suit can be filed. Failure to bring a lawsuit within this period usually results in the lawsuit’s dismissal. The Illinois Local Governmental and Governmental Employees Tort Immunity Act requires that most lawsuits against a public body be brought within a year of injury. However, a recent court decision held that suits against a public body by former employees must be brought within six months of their termination.

Recently, the Illinois Appellate Court upheld the dismissal of a former public employee’s suit seeking backpay because the complaint was not filed within six months of the date she resigned, despite the fact that the Tort Immunity Act would have permitted her to bring suit up to five months later. The court upheld the dismissal pursuant to the laches doctrine, which is an equitable defense that prohibits a plaintiff from asserting a claim when an unreasonable delay in doing so prejudices the other party.

Illinois courts have established a rule regarding the application of laches to public sector employee claims seeking reinstatement or backpay. The rule is that a delay of longer than six months from the date of termination to the filing of suit is per se unreasonable and will justify dismissal on the ground of laches if: (a) the plaintiff can show no reasonable excuse for the delay; and (b) the employer would suffer prejudice by having to pay both a replacement worker’s salary and a successful plaintiff’s back wages during the period of delay.  Courts have held that a public sector employee’s delay in bringing suit for reinstatement or backpay inherently prejudices the public because of the duplicative cost the public body who has already replaced the former employee will suffer if the plaintiff prevails.

Generally, the shorter a time in which a plaintiff may bring a suit, the better protected against liability a public body is. While there are few cases addressing this rule of laches, this recent decision suggests that it could become a more prominent defense in the future.

To better take advantage of this rule restricting former employees from bringing suit more than six months after their termination, public bodies should actively take some precautions where feasible. First, they should clarify when the employee’s last day of employment occurred. Doing so will help to determine exactly when the six-month clock starts to run. Second, a public body should clearly identify any employee hired to replace the former employee as a “replacement,” which will help demonstrate the prejudice that will be caused by the plaintiff’s delay in the event that the plaintiff prevails. Finally, the public body should also consider and document any other prejudice that it suffered, such as having considered and acted upon promotion lists or job applications.

While the scope of this rule is relatively narrow (limited to former employees seeking backpay or reinstatement) and it has not yet become widely used, the six-month rule provides public bodies another tool to combat uncertainty and prevent former employees from burdening the public through costly litigation after their employment has ended.


Posted in Joshua Herman, Labor and Employment, Local Government and Public Finance, Schools and Education