Probationary Period Rules in Illinois: Can You Be Fired?

Under federal law, probationary employees are protected by the same discrimination statutes as permanent employees. Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) prohibits employment discrimination based on race, color, religion, sex, or national origin and covers employers with 15 or more employees for 20 weeks in a calendar year. The Americans with Disabilities Act (42 U.S.C. § 12101) requires employers with 15 or more employees to provide reasonable accommodations to qualified disabled employees, including those on probation. The Age Discrimination in Employment Act (29 U.S.C. § 623) protects workers age 40 and over from age-based discrimination at employers with 20 or more employees. Title I of the Civil Rights Act of 1991 allows compensatory and punitive damages for intentional discrimination.

The Equal Employment Opportunity Commission (EEOC) enforces these federal laws. At-will employment does not override these protections; an employer cannot use probationary status as a pretense to discriminate. Probationary employees also retain rights under the Family and Medical Leave Act (FMLA) if their employer has 50 or more employees and they have worked there for 12 months, though the probationary period need not count toward the 12-month threshold.

Federal wage and hour law (Fair Labor Standards Act, 29 U.S.C. § 201 et seq.) applies during probation. Employers must pay at least the federal minimum wage of $7.25 per hour and comply with overtime rules for non-exempt employees. The National Labor Relations Act (29 U.S.C. § 151 et seq.) protects union organizing activity and collective bargaining rights even during probation.

Illinois law is more employee-protective than federal law in several key respects. Under the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.), Illinois prohibits employment discrimination based on race, color, religion, sex, national origin, age (40 and over), disability, sexual orientation, gender identity, marital status, and unfavorable discharge from military service. The Act applies to employers with even one employee, making the coverage substantially broader than the federal 15-employee threshold for Title VII.

Illinois also recognizes a common law wrongful termination tort when an employer fires an employee in violation of public policy. This includes retaliation for: (1) reporting illegal conduct to law enforcement or appropriate authorities; (2) refusing to commit an illegal act; (3) filing a workers' compensation claim; (4) serving jury duty; (5) taking protected leave under the Illinois Whistleblower Protection Act (740 ILCS 740/1 et seq.); and (6) exercising statutory rights such as wage claims. Probationary employees are not exempt from this protection.

Illinois requires payment of at least the state minimum wage (currently $14.00 per hour as of 2024, higher in some municipalities) during probation. Illinois wage law (820 ILCS 105/1) is stricter than federal law and requires accurate timekeeping and full payment of wages owed. Probationary periods do not suspend these obligations.

Unlike federal law, Illinois recognizes implied-in-fact employment contracts and implied covenants of good faith and fair dealing. If an employer's handbook or offer letter creates expectations about probation length or protections, a court may enforce those promises. Additionally, the Illinois Whistleblower Protection Act provides broader retaliation protections than federal law; probationary employees cannot be fired for reporting violations of any federal, state, or local law or regulation.

No mandatory probation period exists under Illinois law; length and terms are set by employer.

Illinois Human Rights Act covers employers with one or more employees (vs. federal Title VII threshold of 15 employees).

Illinois minimum wage: $14.00 per hour statewide as of January 1, 2024 (higher in cities like Chicago at $15.00).

Overttime: 1.5 times regular rate for all hours over 40 per week (applies during probation).

Whistleblower retaliation claims: no time limit stated in statute; common law wrongful termination has a discovery rule.

Illinois Human Rights Act complaints: File with Illinois Department of Human Rights (IDHR) within 180 days of the discriminatory act (or 300 days if federal EEOC charge filed first).

At-will employment in Illinois does have important limits during probation. First, an employer cannot fire a probationary employee for an illegal reason—discrimination, retaliation, or refusal to commit an unlawful act. However, if the employer has a legitimate, non-discriminatory reason for the termination, the at-will doctrine allows the firing even on probation. Courts apply burden-shifting analysis: if the employee establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate reason for the termination.

Probationary employees have no special protection beyond what all employees receive. Illinois law does not require employers to complete a probation period or honor promises made during hiring regarding job security after probation ends. An employer can terminate a probationary employee before the stated probation period ends if there is no discriminatory or retaliatory motive.

Union employees represent an important exception. If the employee is covered by a collective bargaining agreement, the CBA may restrict the employer's right to fire during probation. Many CBAs require "just cause" for termination after probation ends but allow more discretionary termination during probation. The specific CBA language controls.

Employees subject to Illinois Public Labor Relations Act (PLRA) protections (public sector unions) have additional contractual rights. Additionally, federal FMLA-protected leave cannot be used as a basis for termination during or after probation, and probationary status does not waive FMLA eligibility if the employer is covered.

The Illinois wage and hour exemption for executives, professionals, and outside salespersons still applies during probation; employers are not required to pay overtime to employees who truly qualify as exempt, regardless of probationary status. However, misclassification claims can still arise, and the burden is on the employer to prove exempt status. Finally, probationary status does not override statutory protections for jury duty, military service, voting, or serving as a witness.

Step 1: Document Everything. From day one of employment, keep detailed records of your job duties, hours worked, wages paid, and any feedback or warnings from your employer. Save copies of performance reviews, emails, text messages, and witness statements. If you believe discrimination or illegal conduct is occurring, document the specific dates, times, locations, what was said or done, who was present, and how the conduct affected you. Retain all paystubs, offer letters, employee handbooks, and any written promises about probation length or job security. Do not delete text messages or emails, and consider photographing written documents if you think they may be destroyed.

Step 2: Follow Internal Complaint Procedures. Before filing an external complaint, review your employer's employee handbook and compliance policies. If the handbook requires you to report complaints to HR or a manager first, follow those steps and document your report in writing (email is best). However, if you reasonably fear retaliation or if the complaint involves the person in charge of HR, you may skip the internal process. Even if you follow internal procedures, do not assume this prevents your termination; it does create a record that your employer was aware of potential wrongdoing, which strengthens a later legal claim. Keep copies of all internal complaints and any responses received.

Step 3: File a Charge of Discrimination. If you believe you were fired due to discrimination based on a protected class, file with the Illinois Department of Human Rights (IDHR) at: https://www2.illinois.gov/dhr/Pages/default.aspx. The filing deadline is 180 days from the date of termination (or 300 days if you also file a federal EEOC charge). You can file online, by mail, or in person. Include your name, contact information, employer's name and address, dates of employment, date of termination, the protected class(es) involved, a description of the discrimination, and the names of any witnesses. You do not need an attorney to file, though having one review your charge is advisable. IDHR will assign an investigator and notify the employer of your charge.

Step 4: Expect the Investigation Process. IDHR typically contacts you and the employer within 10-30 days to gather information. IDHR investigators will request documents, conduct interviews, and may visit the workplace. The investigation process generally takes 90-180 days, though delays are common. You will receive periodic updates on status. The employer will be required to respond to the charge in writing. Cooperate fully with IDHR and provide all relevant documents. Do not sign any settlement or severance agreement without legal review; such agreements often include confidentiality and non-disparagement clauses.

Step 5: Consult an Employment Attorney. If you were terminated during probation and believe it was illegal, contact an employment lawyer licensed in Illinois immediately. A consultation is often free or low-cost. Employment attorneys work on contingency (meaning you pay no upfront fees if they take your case), and you may be entitled to recover attorney's fees if you prevail. An attorney can review your offer letter, employment contracts, the employee handbook, and any alleged violations to assess the strength of your claim. If IDHR's investigation does not result in a finding of probable cause within 120 days, you may request a right-to-sue letter and file a civil lawsuit in Illinois state or federal court. The statute of limitations for wrongful termination based on public policy violation is typically four years, but discrimination claims have a three-year window for state court and a much longer discovery rule applies.