COVID-19 UPDATE from Bellas & Wachowski

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.

Marijuana became legal in Illinois on January 1, yet licensed cannabis dispensaries are generally forced to operate like their street-corner, black-market counterparts in at least one respect: They are cash-only businesses because they have no access to banking services.

Chicago Business Lawyer

Illinois Cannabis Laws create new issues

That’s because federal law still classifies marijuana as a Schedule 1 drug, and classifies marijuana businesses as illegal. And since banking is regulated by federal law, banks technically could be subject to charges like aiding and abetting, or money laundering, should they make loans, provide credit or otherwise service these businesses.

Borrowing a line from Leynrd Skynrd’s song, three quick steps to the doorway of business organization will get you into today’s preferred format for your business – a limited liability company (“LLC”).    So here are the three quick steps:

  1. Draft and file the Illinois Articles of Organization.  This is a required form offered by the Illinois Secretary of State and gives the State all of the required details for your LLC.  This is required in every state.  Although the questions seem simple, each one can have some serious ramifications for your business.    Even the choice of a Registered Agent is one that should be considered with care.
  2. Every LLC needs an Operating Agreement.  The is an important document as it relates to the ownership, management and taxation of the business.

If you’ve watched any of the Democratic presidential debates, you might have heard candidate and entrepreneur Andrew Yang – you know, the guy with the $1,000 per month guaranteed income plan – talk about something called the “Fourth Industrial Revolution.”   This is a recognition that technology is imploding and changing everything about our lives.

4th-Industrial-Revolution-300x225In describing the ways social media and technology have redefined communication, in 2009 journalist Graeme Wood said that  “Change has never happened this fast before, and it will never be this slow again.”  

Klaus Schwab, founder of the World Economic Forum, coined the phrase “fourth industrial revolution” in his 2016 best seller.  This is techie-speak for disruptive technologies and trends like robotics, artificial intelligence, virtual reality and the Internet of Things – i.e. everyday devices like doorbells and thermostats that you can control remotely – that are changing how we live and work.  This Fourth Industrial Revolution is bringing together digital, physical and biological systems.  It will open up our minds to all kinds of new things:  Mobile supercomputing; Artificially-intelligent robots; Self-driving cars; Neuro-technological brain enhancements; Genetic editing.  We can see the evidence of these revolutionary changes all around us – and it’s happening faster and faster.

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.

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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.

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.

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: