Articles Posted in Employment law

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.

As Harvey Weinstein rape trial moves forward, has your Chicago area business kept up with the increased awareness of sexual harassment and moved forward with adequate policy and cultural safeguards to ensure that you’re not the next target of the #MeToo movement?

George Bellas Business Attorney

#MeToo Movement is changing business environment protections.  

A survey conducted by the AP-NORC Center for Public Affairs Research, in conjunction with the software company SAP, found that one-third of U.S. workers and 38% of supervisors say they have changed their office behavior as a result of #MeToo.

Help with Business Law Issues

Protecting Chicago Area Business Owners.

The threshold for white-collar employees to be classifiable as “exempt” rose about 50% to $684 per week (about $35,568 per year) on January 1, 2020. Employers will need to make adjustments to ensure they’re compliant with this updated rule, under the Fair Labor Standards Act, announced on September 24 by the U.S. Department of Labor.  By “exempt” I am referring to employees who do not qualify for overtime pay.

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.

Guns in Your Place of Business?

Can a business ban guns from the business and workplace?

If a customer walked into your retail business or professional office carrying a gun, would you be comfortable with that, or would it feel a little too much like the O.K. Corral? What if they were carrying their weapon openly?

Businesses in Oklahoma (postal abbreviation: OK) have had a new reason to ask themselves those questions since November 1, when a change in state law enabled most Oklahoma residents to carry firearms without a license. That follows a 2012 law that gave licensed firearms carriers the ability to open-carry weapons.   Most businesses in the state do not seem to have changed their policies, according to the Oklahoma Retail Merchants Association, which has more than 300 members including both mom-and-pop Main Street businesses and national chains. While some have been considering the question, most continue to welcome gun-toting patrons.

Non-competition agreements (“non-competes”) have long been viewed as viable means for Chicago area business owners to prohibit former employees from taking confidential information and using it to unfairly compete against the business.   Non-competes are actually prohibited in some states, but not Illinois.

Illinois allows the use of non-competes with some limitations.  Illinois employers are allowed to use non-competes provided they reasonably protect the employer’s legitimate business interests.  What this means has been left to the courts, and there has been a steady erosion of the effectiveness of non-competes by limiting the scope of those agreements.

Illinois has passed several laws recently which limit the effectiveness of employee non-competes and which should be of concern to Chicago area business owners:

New Employment Issues

Employment Discrimination issues explained by George Bellas Chicago Business Lawyer

The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all other places that are open to the general public.[1]   When it comes to employment, the ADA provides that employers covered by the statute may not discriminate against “qualified individuals” with a disability with respect to employment matters.[2]  The ADA defines such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job.[3]    Thus, the most contested issue becomes the question of whether or not the employee has a disability, as that term is defined by the Act.

One type of claimed disability that is increasingly the subject of litigation is obesity.  Although courts initially were reluctant to recognize obesity as a qualifying disability for purposes of the ADA protections, courts are increasingly willing to consider obesity as a disability giving plaintiffs status to raise ADA claims.

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:

Back in 2012, facing extreme reluctance from employers, the Equal Opportunity Employment Commission (“EEOC”) published guidance on whether and when to hire workers with criminal backgrounds who had done their time and were, hopefully, ready to be productive citizens and workers.

But employer reluctance to consider hiring ex-cons has waned in the past seven years as the economy has improved, the population has continued to age, and at least in Illinois, the population size has fallen due to people leaving for faster-growing states and fewer immigrants coming into the state.  Meantime, more than 27,000 people got out of state prisons and more than 50,000 were released from Cook County Jail in 2018, and the National Employment Law Project estimates that 42 percent of Illinoisans have either criminal records or at least histories of arrest, which can include not only those found not guilty but those never formally charged in the first place.

It’s become somewhat easier for ex-cons (“the formerly incarcerated”) since the state legislature in 2014 prevented employers from asking on applications or early in the process about criminal history, making Illinois one of 23 states to take this step; private companies like Target had already done so.   Then in 2016 the state changed licensing laws to make more than 100 occupations more accessible to those with criminal records, including areas like healthcare, accounting and real estate, while expanding the types of convictions that can be sealed—and therefore invisible.

Employers:  Be cool with Pot Policies!

With Illinois adopting medical marijuana and looking to legalize recreational marijuana, lots of questions will be arise about what policies employers should adopt.  Imagine workers passing a joint (or a bag of spiked gummy bears) around the water cooler or sharing a joint after work.  Will employees be allowed to bring their baggie into work?  And what about refusing to hire people who test positive for weed.  These are murky waters we are wading into and it’s happening across the country.   For now, it’s probably wisest for most Illinois employers to take the high road when it comes to disciplining or refusing hire those who smoke marijuana for medicinal purposes.

Illinois employers are allowed to implement a drug-free workplace policy that prohibits employees from possessing or using marijuana in the workplace and/or being impaired during working hours. And those provisions can apply even to those who hold medical marijuana cards under the Compassionate Use of Medical Cannabis Pilot Program Act, signed into law by former Governor Pat Quinn in 2013.    However, only those employers that risk losing either a federal contract or federal funding for hiring those who use marijuana are permitted to discipline, or refuse to hire, a person who has a medical marijuana card or fails a pre-employment drug test because they use medical marijuana. The latter provision addresses the fact that marijuana stays in a person’s system up to a month after use.