Articles Posted in Small Business

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.

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.

Employee expense reimbursement is now required by law in Illinois, at least under certain circumstances, making the Land of Lincoln the ninth U.S. jurisdiction to statutorily impose such a requirement.   In doing so, Illinois joins the company of other states with similar rules.   Employers of all shapes and sizes should get up to speed on the new law, an amendment to the Illinois Wage Payment Collection Act that took effect on January 1, which requires employers to reimburse all “necessary expenditures” directly related to the employer’s services.

The new law (820 ILCS 115/9.5) defines “necessary” as “all reasonable expenditures … required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” This means that the employer must have either “authorized or required” the employee to purchase the product or service and must receive appropriate documentation within 30 days—unless the employer allows for a longer time frame.

Employers should have written expense reimbursement policies that lay out what they pay for and how much, along with what’s requested in terms of documentation; although if an employee cannot produce this documentation, such as a receipt, the employer must accept a “signed statement” from the employee instead.   This written policy can set caps for different categories of expenses and the employer does not need to reimburse more than the capped amount, provided the caps amount to more than “de minimis” reimbursement—a term the amendment does not define. In other words, the best guideline one can follow is: be reasonable, based on costs in your area.

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.

In late September, the social media behemoth Facebook told the World Wide Web that about 50 million accounts had suffered a security breach. Hackers had stolen password tokens for signing into Spotify, Instagram, Yelp and thousands of other third-party applications.

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Facebook Security Breach

Facebook automatically logged out the 50 million users directly affected and another 40 million who might have been implicated, and the company said that passwords weren’t compromised. But the incident serves as a warning to all who have multiple passwords across the various sites and accounts they use—in other words, virtually everyone in the First World, and certainly business owners—to take this opportunity to better manage account security.

Workers Classification – Employees or Independent Contractors

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Independent Contractor or Employee?

As a business owner or an employer, when you hire a new worker, you will be reintroduced to the question – should you classify the worker as an employee or an independent contractor?  In order to make this huge business decision, you need to fully understand the difference between an employee and an independent contractor and the importance of classifying them correctly.

Generally speaking, illegal immigrants have the same protections under labor laws as American citizens, with some minor exceptions.

Minimum Wage Laws:  addition to federal laws, each state has its own minimum wage requirements; where federal and state laws differ, the higher wage applies.  Minimum wage laws apply to all workers the same, regardless of immigration status. Minimum wages in the U.S. are primarily set forth by the federal government, under the Fair Labor Standards Act (“FLSA”).  But virtually every state has its own minimum wage law as well.  Though the federal law trumps the state law, if state law mandates greater benefits, the employer must pay the higher rate.

Importantly, the FLSA makes no exception for illegal immigrants.  They’re therefore entitled the same benefits as American citizens.   Currently, the FLSA minimum wage is $7.25 per hour for non-exempt employees, and the New York minimum is the same. The minimum under Illinois law is $8.25.

In case you missed it, on June 21 the Supreme Court of the United States passed a judgment that states were now allowed to impose taxes on online sales.  This overrules its previous decision to rule out tax collection on stores that did not have a physical presence in that state.

So what does this law means and how is this going to look for your online business?

Before we go further into the South Dakota vs. Wayfair Inc. ruling, it is important to be familiar with how sales tax on online purchases used to work until now. The previous verdict from 1992, also known as Quill Corp. vs. North Dakota ruling, set forth that online retail merchants only had to impose taxes on their online sales in states where they had a physical presence or a “nexus.”   This means that the customers were required to pay the tax on the purchase to their home state directly.