Articles Posted in Bellas and Wachowski Law Firm

Employers who collect biometric information such as fingerprints, face scans, or retina or iris scans from employees—or even customers—need to ask permission and explain why the data is being collected, or they could well face legal liability.

Biometric-Illinois-Law-300x185The Illinois Biometric Information Privacy Act (BIPA), which regulates how employers must handle biometric data, received a relatively liberal interpretation from the Illinois Supreme Court, which means that state-level lawsuits have wider latitude than federal ones—but even suits dismissed at the federal level can sometimes be refiled in state court.   The law remains in flux when it comes to what, exactly, constitutes biometric data.  Photographs are not considered biometric identifiers, for example, but a software application that collects facial scans could be—and even federal courts have allowed for relatively broad interpretations on this front, mindful of the galloping pace of technological advances.

The Illinois Supreme Court in January defined an aggrieved person as anyone whose information is collected without their consent or knowledge, even if they were not harmed in the process, in the case Rosenbach v. Six Flags Entertainment Corp. (2019 IL 123186), issued on January 25 of this year and previously detailed on this blog.   This means employers are liable for $1,000 in damages for each negligent violations and $5,000 for each intentional violations.  For example, if an employer fingerprints employees each day as they check in and out of the office, and does not notify employees of the collection and storage of these fingerprints, the business could be fined $2,000 per day per employee.  Perhaps not surprisingly, at least 90 class action lawsuits alleging violations of BIPA have been filed since January in Illinois state courts.

Legal Marijuana Shouldn’t Mean Dazed and Confused Workers!

Starting on January 1 consumers will be able to buy marijuana for recreational use from licensed sellers.   Pot users will no longer need to worry about fines or jail time – but employees will need to pay attention to their employers’ policies about drug screenings and the use of cannabis at work.

Employers should consider how they want to handle the legalization of cannabis in terms of workplace policies, written guidelines and staff training on the many issues that employers will be facing.  Employers should take the time to review Section 10-50 of the “Illinois Cannabis Control Act” to see what protections they do and do not have.  Among these are:

You might not realize it’s happening, and you definitely might not realize you have the right to object. But when you enter an airport in 2019, it’s possible that your airline—or the federal government—are scanning images of your face for their security-related purposes.

George Bellas Chicago Business Lawyer

Say No to Airport Facial Recognition

This facial-recognition technology can be used during check-in, baggage drop, security and boarding. For the most part so far, it’s mostly only been deployed for international flights, to confirm passenger identity at the behest of Customs and Border Protection. But airlines and the Transportation Security Administration are considering doing so for domestic flights, as well.

An arbitration agreement is a contract, in which two or more parties agree to settle a dispute outside of court.  Usually, an arbitration agreement is a clause in a larger contract. The arbitration clauses are often subjects to hotly disputed litigation, stemming from the vague verbiage and possible inconsistencies with other parts of the contract.  One of such issues – the admissibility of the “Wholly Groundless Exception” – was decided by the Supreme Court in January in the case of Henry Schein, Inc. v. Archer & White Sales, Inc , 586 U.S. __ (Jan. 8, 2019).  This is a tricky issue for those in the trucking industry who include arbitration clauses in their contracts with drivers.

What Is A Wholly Groundless Exception?

A “wholly groundless exception” was born out of the “delegation clauses” ordinarily found in arbitration agreements.  A delegation clause represents an agreement between parties that an arbitrator, not the court, will determine the threshold issues of enforceability of the arbitration clause and the scope of the arbitration agreement.  In other words, it is up to an arbitrator to decide whether, according to the contract or the rule of law, an issue may be decided by arbitration or needs to be determined by a judge.  These clauses were held to be valid by the Supreme Court in 2010 in Rent-A-Center, West, Inc. v. Jackson, 561 US 63 (2010). Since then, several circuits decided that this provision must be limited; thus creating a so-called “wholly groundless exception” to the delegation clause. This exception lets parties avoid compelling arbitration in cases where the claims are so obviously not within the scope of the agreement, that it would be a waste of time to go through arbitration before filing a lawsuit.

Chicago-Business-Lawyer-George-Bellas-300x177A Legal Guide to Holiday Parties

Alas, the holiday season is upon us!  It’s time to celebrate the successes of the prior year with a festive holiday party, where employees can let off steam, socialize and spread cheer.  So, who should you contact first? A caterer… or a DJ… or your friendly Chicago business lawyer?  Although it may not sound like the most fun way to kick off celebrations, calling your company’s lawyer to discuss legal guidelines and potential liability pitfalls may be a good idea.  We don’t mean to be scrooge and kill the fun, but times have changed.

To ensure that your holiday party is memorable for the right reasons, this guide may help understand some concerns are and how to avoid potentially troublesome situations.

By Misty J. Cygan, Attorney at Law

George Bellas Small Business Attorney

Aileron is a trained emotional support dog.

Business owners and their customers are perfectly used to service dogs who assist people with disabilities in getting around and performing daily tasks.

George Bellas business lawyerThe growth of e-commerce and the resulting physical distance between parties in various transactions, along with advances in technology more broadly, have helped lead to the rise of online dispute resolution, a digital offshoot of traditional alternative dispute resolution that provides greater efficiency and convenience to the parties involved.

While online dispute resolution does not necessarily arise from online transactions—and can be used in marital separations, property tax appeals, no-fault insurance claims and other types of cases—many believe it applies especially well to e-commerce given that it resides in the same jurisdiction, so to speak, of cyberspace.

A third-party mediator or arbitrator is still often involved in resolving such disputes, however, the process also includes a “fourth party” automated tool that can, for example, schedule meetings, organize information germane to the case, and tone down inflammatory language found in communications by blocking certain verbiage.

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Under a new Illinois law, non-compete agreements must be premised on a legitimate business interest and narrowly tailored in terms of time, activity, and place.  In addition, under the newly enacted Illinois Freedom to Work Act, employers are prohibited from entering into non-competes with employees who make less than $13/hour.

To prove the point, the Illinois Attorney General filed a suit in October against a payday loan company (Check Into Cash) because the employer required all store employees, including those making under $13 an hour, to agree to a one-year non-compete.  The suit alleges that the non-compete prohibits all store employees from working “directly or indirectly . . . as an employee, officer, consultant, or in any other capacity, for any individual, firm or entity, which provides deferred presentment, deferred deposit, and/or any other payday advance services, . . . and/or any other consumer lending services or https://www.businessattorneychicago.com/files/2017/11/11.1.17-1-300x150.jpgmoney services.”  The suit contends that the non-compete in question: (1) prohibits employees from working within 15 miles of any Check Into Cash location, not just the store the employee works in; (2) prohibits employees from working for any company that directly or indirectly provides consumer lending services, regardless of whether that company competes with Check Into Cash; (3) applies equally to all store employees, regardless of position or time spent with the company; and (4) applies to employees who make less than $13 an hour.  See: http://www.illinoisattorneygeneral.gov/pressroom/2017_10/20171025d.html

Employers should review their non-compete agreements to ensure compliance with Illinois law.  All restrictive covenants should: (1) be supported by adequate consideration; (2) narrowly tailored, in time, activity, and geography, to protect the employer’s legitimate business interests; and (3) not apply to low-wage employees as defined by the Freedom to Work Act.  If the employer is concerned about a low-wage employee’s exposure to trade secret information, they should also consider other means of protection, such as confidentiality agreements.

Can Student Loans Ever Be Discharged?

Yes, and there’s a new tool to help bankruptcy lawyers deter29905732 mine whether clients qualify

Contrary to common perception, not all student loans can be wiped out in bankruptcy court. Although the Bankruptcy Code does protect federal loans and some private loans from discharge, student loans can be discharged if the debtor can prove an “undue hardship,” which usually means you’re living in poverty and not likely to escape any time soon.

BIG WOES FOR ZILLO

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Zillo, the gigantic online real-estate database company, has a gigantic headache, legally speaking. It is currently the target of a class action lawsuit in Illinois. Zillow is the website that allows a person to search for properties for sale–properties located just about anywhere. And Zillow’s cornerstone feature–Zestimate–allows one to look up the estimated value of a property–most any property, most anywhere, whether it is for sale or not.  (Your own home may well be listed there right now; just go to the site and put in your address.)

Lots of people love Zillo; it is free, comprehensive and convenient.   Its legal problems stem from its Zestimate feature.