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Can I sue my employer for a workplace injury? P.2

Previously, we began exploring the issue of whether an injured employee has the ability to sue their employer for damages. As we pointed out last time, there are several exceptions to the “exclusive remedy” rule here in Illinois. We’ve already looked briefly at the intentional conduct exception.

The dual capacity doctrine, which is another exception, applies in situations where the employer has legal obligations to the employee apart from those attached to the employment relationship. A common example of this would be where the employee is injured by a defective product manufactured by the employer. Another example would be when an employee is injured on land owned by the employer. 

The key with proving dual capacity is to show not only that the employer had legal duties separate from those of employment, but also that the employer was acting as a “distinct separate legal persona” with respect to the accident.  In other words, the employer would be considered a separate legal entity rather than the employer in a court of law. An employee injury on work property likely would not fulfill this requirement, but an employee injury on the employer’s private property likely would, especially if the injury occurs off the clock.

Another important exception to the exclusive remedy rule relates to retaliatory discharge. In situations where an employee is fired for exercising his or her rights under workers’ compensation law, it may be possible to hold the employer liable for paying the employee’s lost wages.

Two important points about this exception are: first, there must be a causal connection between the retaliatory discharge and the employee’s lost wages; secondly, any lost wages not causally connected to the retaliatory discharge may not be recovered in a civil action. Lost wages caused by the workplace injury itself would not fall under this exception, but lost wages caused by the retaliatory discharge may.  

In our next post, we’ll wrap up this discussion and look at the importance of working with an experienced attorney when pursuing compensation after a workplace injury.


Dale v. South Central Illinois Mass Transit District, 2014 IL App (5th) 130361

Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121

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