Articles Posted in Small Business

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.

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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.

We all get them … and we get them all the time … and we are all tired of them … and we all cuss them out!

Many of those calls are illegal.   Some of the robocalls you may have agreed to receive when you signed up for certain services – like those reminders that your prescription needs to be refilled – and those are legal.  But the automated, unsolicited calls coming from other countries are finally getting some attention from the federal government.

TRACED-Act-300x167The dead heads in the House and Senate have finally agreed on something and adopted the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”) at the end of 2019 and it was signed into law at the end of 2019.  The TRACED Act’s stated purpose is to limit the increasing number of illegal robocalls and other violations of the telemarketing laws.  The Act also gives the FCC more powers to punish violators under the Telephone Consumer Protection Act (“TCPA”) and to seek out violators in foreign countries.

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:

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Illinois Cannabis Laws create new issues for Property Owners

Cannabis may be legal in Illinois after January 1, but it is still illegal under federal laws.  This will make for some interesting discrepancies in how the laws will be applied.  Federal law remains in direct conflict with the new Illinois state law.  There are a number of issues that property owners should be concerned with on January 1.

Federal Subsidized Housing:  In federal subsidized housing – like the Housing Authority of Cook County – medical or recreational use of marijuana has been and remains prohibited in the Housing Authority’s housing programs. This includes participants using Housing Choice (“Section 8”) Vouchers in the private rental market,

ADA Compliant Websites

Is Your Website ADA Compliant?

I have previously reminded business owners that their websites must be ADA compliant in a post titled: “Is Your Website ADA Compliant”.  And a recent (non) decision by the U.S. Supreme Court affirms that position.

As a followup to this post, the U.S. Supreme Court recently declined a petition for certiorari in Domino’s Pizza v. Guillermo Robles, letting stand the Ninth Circuit’s decision holding that Title III of the Americans with Disabilities Act (ADA) applied to websites and mobile applications for businesses with physical locations.    In the Domino’s Pizza case a blind customer asserted he could not order a custom pizza from Domino’s website or mobile application, even while using screen reading software.   The 9th Circuit Court of Appeals ruled that the ADA applied to Domino’s website and mobile application because the ADA mandates that places of public accommodation provide auxiliary aids and services to disabled individuals.   The Appeals court stated that “Domino’s website and app facilitate access to the goods and services of a place of public accommodation – Domino’s physical restaurants.”

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:

Does your business have insurance to protect you against breaches of your cybersecurity? Turns out that’s not a simple “yes” or “no” question, and the answer changes constantly based on new cases being litigated and new types of breaches impacting companies.

Businesses need to take into account a wide range of factors in determining whether they have enough breadth and depth of insurance coverage to guard against any cyber liabilities. And it might be helpful to consult with an insurance broker who handles these types of policies.

First of all, you need to make sure you’re covered for your own damages resulting from such an incident. These can include the costs of forensic analysis to determine what happened, legal assistance, notification of individuals and regulators about a data breach, and any fines, penalties or other costs stemming from an enforcement action. Also, you need to be insured for any degree of business interruption.

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.

When the Americans With Disabilities Act passed in 1990, the World Wide Web was only a year old and was not even a commonly used term yet, much less a commonly used medium. Although the ADA is most commonly associated with the inclusion of wheelchair ramps, elevators and handrails in public buildings, three decades later the law is also being used to demand that business websites become ADA-compliant.

The law firm Seyfarth Shaw tallied more than 2,250 such federal suits filed in 2018 under Title III of the ADA, more than triple the number from the year before, alleging violations because plaintiffs “could not use websites because they were not coded to work with assistive technologies like screen readers,” the firm said.    Advocates for the disabled say that websites must accessible to everyone, just like brick-and-mortar stores, restaurants and schools—with content coded to enable screen-reading software to convert words to an audio translation for the blind, video that includes written descriptions for the deaf, and interactive functions operable through keyboard commands for those who cannot operate a mouse.

It can cost several thousand to a few million dollars to make a site accessible depending on its complexity, although adding to the confusion is the fact that no formal government standards have been promulgated—and the Trump administration has decided to stop drafting rules for website ADA compliance, which many people are saying is to blame for the rise in lawsuits. A consortium of web innovators has created the Web Content Accessibility Guidelines.