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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.
Americans talk about being “tethered” to their smartphones mostly from the standpoint of the time suck that’s involved and the tendency to miss what’s going on around us when we’re supposed to be working, spending time with family or friends, or (let’s hope not) driving down the highway. It’s hard to resist the offerings on your smartphone which now is millions times more powerful than NASA’s computers from the 1960’s.
But one result of all that tethering – whether we’re texting, streaming music, getting directions from our GPS, or posting on social media – is that our smartphone is silently, relentlessly gathering all kinds of information about us. Your smartphone knows where you are, how you got there, with whom you’ve been communicating, and what you’ve been typing into your favorite search engine lately. It is this geolocation feature of smartphones that lets parents and spouses know the location of their family members, but it also provides a wealth of information to law enforcement personnel and those who understand how to retrieve this information. It has been quietly used by law enforcement agencies to obtain data about what smartphones have been active near crime scenes by issuing a subpoena to Google to recover the data. This was a feature story in the New York Times on April 13, 2019 which is part of an ongoing examination of the privacy issues associated with smartphones.
Although many people are vaguely uneasy about the variety and volume of information they cough up in their various apps, ultimately they are too tapped into the convenience and entertainment aspects to worry about controlling how much of their data is falling into the hands of marketers, retailers, the government and even foreign governments. Not to mention the brain cell and social skills deterioration that takes place.
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.
After a teenage boy was fingerprinted without written consent when he purchased a season pass to Great America, his mother sued Six Flags for violation of the Illinois Biometrics Act. In January the Illinois Supreme Court unanimously found that plaintiffs can bring a private cause of action for violations of the state’s biometric privacy law’s notice and consent requirements, even if they can’t show any harm.
The court found (Rosenbach v. Six Flags Entertainment Corporation) that individuals have control of, and a right to privacy over, their biometric identifiers, such as voice samples, retina scans and facial geometry, in addition to fingerprints. Because neither the son nor the mother consented in writing nor signed a written release for the taking of the fingerprint, and because Six Flags did not provide documentation about how long they might retain the data before destroying it, the court found the theme park violated these rights.
This decision underscores the fact that biometric privacy is quickly becoming an area of the law with greater application for businesses—and that they need to start paying attention, particularly as technology ramps up to a whole new level with the advent of microchips. About the size of a grain of rice, these chips have been voluntarily implanted in the hands of employees at several companies and work like a card reader, providing the ability to open doors, get into company accounts and order from company vendors.
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.
Estate plans should account for the disbursal of all assets, lest they become marooned in probate purgatory. People are forgetting that they have digital assets that need to be accounted for.
Protecting Your Digital Assets
Digital assets like cryptocurrency, social media accounts, e-commerce and online accounts need to be cared for just as much as conventional ones, so that family members are able to account for and access them as property, wealth and assets are transferred from one generation to the next.
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.