Appellate Court Issues First Published Decision on Illinois’ VESSA Law: Affirms Decision in Favor of Employer

Contributed by Sara Zorich & Jeff Risch

Illinois’ Victim’s Economic Security and Safety Act (VESSA) became effective on August 25, 2003 (820 ILCS 180 et. seq.). VESSA was enacted to:  1) promote the State’s interest in reducing domestic or sexual violence by enabling victims to maintain financial independence to leave abusive situations and to reduce the economic consequences of such violence to employers and employees; and 2) protect the employment and civil rights of employees or their families who are victims of domestic or sexual violence. VESSA provides employees working for both small and large employers, with special leave entitlements and workplace protections. 

Since the law’s enactment, all VESSA related controversies have been contained within the Illinois Department of Labor (IDOL) — the lone State agency that administers, enforces and adjudicates such claims.  However, on February 15, 2012, the Appellate Court for the 2nd District of Illinois, affirmed an IDOL decision that concluded when a victim is not utilizing a leave of absence for purpose permitted by VESSA, then that victim is not protected under the lawSee Sustatia v. Illinois Department of Labor et. al. No. 2-10-1230.

VESSA provides that an employee working for an employer with at least 15, but not more than 49 employees, shall be entitled to a total of 8 workweeks of unpaid leave during any 12-month period. Employees working for an employer with at least 50 employees are entitled to a total of 12 workweeks of unpaid leave during any 12-month period. Employers are also specifically prohibited from interfering with, restraining, or denying an employee’s attempt to exercise any rights under the law.

An employee may take VESSA leave to:

  1. Seek medical attention for, or recovery from, physical or psychological injuries caused by domestic or sexual violence to the employee or employee’s family or household member;
  2. Obtain victim services for the employee or employee’s family or household member;
  3. Obtain psychological or other counseling for the employee or the employee’s family or household member;
  4. Participate in safety planning, including temporary or permanent relocation or other actions to increase the safety of the victim from future domestic or sexual violence; or
  5. Seek legal assistance to ensure the health and safety of the victim, including participating in court proceedings related to the violence.

Under the Act, an employer may require that the employee certify that he/she is a victim of domestic or sexual violence and that the leave is for a purpose enumerated in the VESSA statute with a certification and additional documentation including documentation from a professional assisting in the proceeding, a police or court record or other corroborating evidence.

The facts of this case are very detailed. The following serves as a mere summary of conclusory facts adduced by the Appellate Court:

Sustatia requested leave from work to attend a May 8, 2006 court proceeding regarding a domestic battery charge she brought against her boyfriend. West Suburban Bank, her employer, requested that Sustatia corroborate her leave request and sign a sworn statement that the leave was related to her participation in a court proceeding regarding her domestic abuse charge.  On May 23rd, Sustatia signed a sworn statement and provided a letter from her non-physician therapist that she was in court on May 8th. West Suburban asked for clarification as to how Sustatia’s therapist was able to corroborate her claim that she was in court on May 8th but none was provided. After numerous and exhaustive requests for the corroborating documentation, the bank’s Vice President of Human Resources requested a meeting with Sustatia regarding the documentation supporting her claim. After numerous attempts for clarification, and becoming increasingly suspicious of Sustatia’s need for leave from work, and the fact that Sustatia failed to appear for a “last chance” meeting, she was terminated on August 16, 2006 for insubordination and misconduct for failure to follow management’s directions in providing written corroboration to validate her alleged court appearance on May 8th.

The plaintiff filed a claim with the IDOL against West Suburban for alleged violations of VESSA. A lengthy hearing was held and the Director of the IDOL found that Sustatia’s testimony was not credible concerning her alleged presence and participation in court on May 8, 2006. The Director further held that Sustatia’s leave of absence on May 8, 2006 was not valid under VESSA since she did not miss work for a statutory enumerated purpose. On February 15, 2012, the Appellate Court upheld the Director’s finding that Sustatia failed to establish she was entitled to leave under VESSA and thus West Suburban had not committed any violation of the Act.

While this case is very fact specific, it establishes that employers have the ability and right to require an employee to comply with statutory provisions of VESSA in order to be eligible for leave under the Act. Employees may only take VESSA leave for the enumerated statutory purposes and employees requesting leave for other purposes are not protected under the Act. Illinois employers should be familiar with the Act and its limitations on employee leave.