By Steven L. Brenneman

Winnebago County, Illinois recently attempted to avoid a claim for accrued but unpaid vacation pay under the Illinois Wage Payment and Collection Act (IWPCA) by invoking the 1-year statute of limitations in the Illinois Local Governmental and Governmental Employees Tort Immunity Act. Read on to learn whether the Tort Immunity Act gives a break to public-sector employers.

Sabbatical

Charles Prorok was employed as an assistant state's attorney by Winnebago County from February 1978 to October 2007. At the time he left his employment, he claimed he had not been paid for 526 hours of accrued but unused vacation time.

Under the IWPCA, the monetary equivalent of earned vacation is part of an employee's final compensation that must be paid by the next regularly scheduled payday following his separation. Nearly 9 years after Prorok's separation from employment from the county, he filed a lawsuit seeking $30,142.43 as compensation for his unpaid and unused vacation time.

Getting Away from It All

The circuit court judge dismissed Prorok's complaint, agreeing with the county's argument that the claim was barred by the 1-year statute of limitations in the state's Tort Immunity Act. In effect, the county argued (and the trial court agreed) that the 10-year limitations period applicable to claims under the IWPCA applies only to claims against private employers. Prorok argued that the 10-year statute of limitations applied, and he appealed.

The purpose of the Tort Immunity Act is to protect local public entities and their employees from liability arising from the operation of the government. The law embodies the general principle that local governmental units may be liable for torts (i.e., for intentional or negligent acts that harm someone) but are not liable for an extensive list of immunities based on governmental functions.

The Tort Immunity Act does not affect the right to obtain relief "other than damages" from a governmental entity. Based on that provision, the county argued—in both the circuit court and the appellate court—that Prorok sought "equitable" relief that could be "characterized as damages" and that his claim was subject to the Tort Immunity Act and its 1-year limitations period.

Junket

On appeal, however, the court stated that the salient inquiry was not whether Prorok's claim was for damages "because not all damages are of the same type." The real question, said the appellate court, was whether the nature of the liability Prorok alleged arose from the breach of a legal duty (i.e., in tort law) or from the breach of a contractual promise (i.e., in contract law). By its own terms, liability based on a contract is expressly excluded from the immunities conferred by the Tort Immunity Act.

Prorok's claim was for wages for work he had already performed—a claim that necessarily arose from his employment with the county. Even though he had been an "at-will" employee (a fact the county emphasized), the appellate court noted that "employment at-will is essentially a contractual relationship, one that is accepted by the employee's having worked for the agreed wages and benefits." Because Prorok's claim alleged that the county failed to perform a contractual obligation, the Tort Immunity Act did not apply. Therefore, he had 10 years to bring his back-pay claim under the IWPCA. Prorok will get his day in court. Prorok v. Winnebago County, 2017 IL App (2d) 161032 (Ill. App. 2d Dist., Dec. 20, 2017).

Repose

This case reminds all Illinois employers that claims for unpaid wages under the IWPCA can be filed 10 years from the date the wages are due. Under the IWPCA, accrued but unpaid vacation is due at the time of termination. Thus, as illustrated by this case, an employee may timely file a claim for accrued but unpaid vacation 10 years after his separation. For public-sector employers, this case confirms that the Tort Immunity Act does not apply to claims for wages, and therefore, it does not alter the rules.

This article was written by Steven L. Brenneman of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. He can be reached at sbrenneman@fslc.com.