COVID-19 UPDATE from Bellas & Wachowski

Articles Posted in Contracts


non-compete-300x251

Illinois Freedom to Work Act 

Illinois Employers who want to protect their business and trade secrets by using restrictive employment contracts will find new hoops to jump through.   The enforcement of non-compete and non-solicit agreements, designed to erect roadblocks to prevent former employees from gaining an unfair advantage due to their proprietary knowledge of your business or relationships with your customers, has always been tricky.  But a recent law will make it more complicated.

An amendment to the Illinois Freedom to Work Act that will take effect on January 1, 2022, will create new hurdles for business owners hoping to prevent employees who have left on frosty terms from exploiting their knowledge of customer contacts, pricing and other trade secrets that could enable them to take shortcuts to parity as your adversary.

George-will-sign-300x251

Wills Can Be Signed Electronically

Prior to the COVID-19 pandemic, wills needed to be signed in person and witnesses (including notaries) needed to be on hand to see the will creator’s actually sign the will.

When the pandemic got underway, Illinois Governor Pritzker signed an Emergency Order declaring that for health and safety related reasons, wills could be signed electronically and that notaries public and other witnesses could view the signing from afar, provided they had a dependable audio and video connection.

For the first time to our knowledge a judge has ordered rent relief for a Chicago restaurant.   The bankruptcy judge ruled that the “Act of God” clause in the lease gives the restaurant rent relief when it was forced to closed during the the COVID-19 mandatory closings.

George Bellas Chicago Business Lawyer George Bellas answers questions for business owners.

CoronaVirus FAQs

The force majeure clause in the lease of Italian restaurant Giglio’s State Street Tavern eliminated the restaurant’s obligation to pay full rent during the time when the City and State implemented the “stay-at-home order” to deal with the pandemic.   (For more info on the force majeure contact clause, see my other Blog on force majeure.)

Protecting Data while Working Remotely

Cyber Security Issues while working remotely.

Does your cyber liability insurance cover data breaches that occur while employees are working at home, using their personal devices such as tablets and laptops?

There’s no time like the present to look into this issue, with most employees telecommuting and hackers perhaps sensing new opportunities to do what they do—and in fact, cyber intrusions have been on the upswing in recent weeks.

Did someone say force majeure?

Force Majeure Clauses

COVID-19 Pandemic and Force Majeure clauses

According to Black’s Law Dictionary, force majeure is defined as “An event or effect that can be neither anticipated nor controlled.”   It is generally viewed as an unexpected event that prevents someone from doing or completing something that he or she had agreed to do.  The term is usually applied to acts of God (such as floods and hurricanes), riots, strikes and wars.  It is unclear, however, if the term includes an epidemic, such as COVID-19.   That legal term for unforeseen circumstances resulting in non-fulfillment of a contract is likely to be invoked widely this spring and summer as businesses are unable to make good on commitments due to the corona virus crisis.

The Illinois Freedom to Work Act, which prevents non-governmental employers from requiring that low-wage employees enter into non-compete agreements, has begun to impact case law in the past three years since it was enacted. Employers would be wise to take note.

Help with Business Law Issues

Chicago Business Lawyers

The act, which defines “low-wage employees” as those earning the greater of $13 per hour, or the federal, state or local minimum wage, pushes back against employers who insert such agreements into new employee packets as a matter of course.

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.

https://www.businessattorneychicago.com/files/2017/11/agreements11.1.17.jpg
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

download
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.