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  • New Illinois Bill Makes it Possible to Fight City Hall

    City governments in Illinois have the right to issue a citation and fine to property owners for a number of reasons. These reasons may include failure to care for one’s yard, installing the wrong type of fence, parking a vehicle in the street during a snow storm when the plows are out, a barking dog that is disturbing the neighbors, and property that has been left neglected and poses a safety risk to others. However, in some cases cities have overstepped their boundaries and issued unfair fines to residential property owners, who often had no choice but to pay them. Now, a new law passed by state lawmakers is giving property owners the ability to challenge City Hall.

    Public Act 98-1105, which has been signed by Gov. Pat Quinn, empowers residential property owners who feel they have been improperly fined by their city. Under the new law, property owners can file a challenge against a city fine in circuit court and request that the city pay their legal costs if the court rules in their favor. The court will conduct an administrative review of the city’s code compliance, examine the property owner’s situation and decide whether to reverse the city fine or approve it.

    If the court rules in favor of the residential property owner, the court may order the city to pay the owner’s attorney fees and court costs. Prior to the passing of the bill, property owners had to foot their own legal costs and oftentimes, the costs were greater than the actual fine. This left property owners in a difficult position with little options but to pay an unfair fine to the city.

    The bill was initiated by The Illinois Rental Property Owners Association as an amendment to the state’s Code of Civil Procedure. One supporter of the bill, the Rockford Apartment Association, believes that cities will be more careful about issuing fines to property owners and if fines are issued, they will be fair ones. The new legislation only applies to owners of single family or multifamily residential dwellings in a municipality with a population of less than 500,000. The legislation goes into effect on January 1, 2015.

  • Illinois Gov. Signs Pregnancy Discrimination Bill

    Starting January 1, 2015, pregnant women in Illinois will have more protection in the workplace, thanks to a new bill passed by lawmakers this year. Gov. Pat Quinn recently signed House Bill 8 which amends the Illinois Human Rights Act, requiring state employers to provide reasonable accommodations for pregnant employees. The bill was a collaborative effort between Gov. Quinn, Representative Mary Flowers (D-Chicago) and Senator Toi Hutchinson (D-Chicago Heights) to address the widespread problem of discrimination against pregnant women by employers.

    Under the new law, employers must give pregnant women more frequent bathroom breaks, a private non-bathroom space for breastfeeding, places where they can sit and rest, help with manual labor tasks, limits on lifting heavy objects and time to recover after giving birth. The new amendment also gives pregnant women protection from termination; employers must reinstate an employee to her original or equivalent position after the pregnancy unless the employer can demonstrate that doing so would be an undue hardship.

    Similar to American Disability Act accommodations, if an employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the employer’s business, the employer does not have to provide it. However, the hardship must be either prohibitively expensive or disruptive to the employer. The new law mandates that the employee and employer engage in a timely and meaningful dialogue in order to determine effective and reasonable accommodations. The employer may require medical certification from the employee’s health care provider but that certification only includes a medical justification for the requested accommodation, a description of the reasonable accommodation required, the date(s) of the accommodation and the duration of the accommodation.

    The amendment applies to every employer in Illinois – not just those with 15 or more employees. It also prohibits employers from requiring pregnant employees to use an accommodation they didn’t specifically request, such as an assignment to light duty. Gov. Quinn points out that women should not be placed in a position where they either have to choose their job or the health of their baby. The bill is aimed at protecting mothers who are single parents and in the low-income bracket but will apply to every pregnant employee.

    As an employer, you should review, with your attorney, your policies on reasonable accommodations and medical certification, as well as your employee handbook and training for managers and supervisors. You must post a notice regarding pregnancy accommodation rights in January 2015.

    If, as an employee, you feel that your employer has not offered reasonable accommodations for your condition, you should consider contacting an attorney.

  • Ban the Box

    Recently, Gov. Pat Quinn signed into law the Job Opportunities for Qualified Applicants Act. Commonly referred to as “ban the box” legislation, it prohibits Illinois employment agencies and private employers, with 15 or more employees, from prescreening applicants over a criminal record or history. Under the new law, which goes into effect on Jan. 1, 2015, employers and employment agencies cannot ask applicants to disclose information as to whether they have been convicted of a crime, or conduct a background check on applicants, during the initial application process. Employers and employment agencies are further required to change their application forms to remove any questions or boxes that ask the applicant about a criminal background.

    Employers who are prohibited by state or federal law to hire an applicant with a specific type of conviction are allowed to ask whether an applicant has been convicted of that crime. If applicants would need to obtain a standard fidelity bond as part of their employment, the employer can ask them whether they have been convicted of crimes that would prevent their approval for such a bond. Additionally, Emergency Medical Services Systems Act employers are allowed to inquire about an applicant’s criminal history or conviction. Employers who fall under these conditions may inform applicants in writing that they are not eligible for employment due to policy or existing law.

    Once applicants have been invited in for an interview or a position is officially offered to them, employers do have the right to inquire about whether they have a criminal background or conviction. Employers should examine their hiring processes to ensure that they comply with the new law and will face civil penalties from the Illinois Department of Labor if they violate the act. These penalties include the following:

    • First violation – written warning and 30 days to correct the violation
    • Second violation or failure to comply with the law from a first violation – civil penalty up to $500.
    • Third violation or failure to comply with the law from a first violation within 60 days – civil penalty up to $1,500
    • Additional violations or failure to comply with the law from a first violation within 90 days – additional civil penalties of $1,500 each 30 days that the employer fails to comply

    The Illinois Department of Labor also has the right to file a civil action against employers in order to collect these penalties. It is expected that under the new law, applicants in Illinois who have a criminal history or record, will have a better chance to find employment and employers will have more qualified applicants to select from.

  • Google Accused of Trade Secret Infringement

    In the past, lawyers for multiple small companies have accused search engine giant, Google Inc., of stealing and profiting from their clients’ trade secrets. In the case of VSL Communications, lawyers claim that Google did the same thing and left a paper trail of Post-it notes as evidence.

     

    London-based VSL Communications is accusing Google of stealing its proprietary method for shrinking video and audio files without any sacrifice in sound or image quality. The suit, filed in Santa Clara County Superior Court this past month, claims that Google used those trade secrets to enhance all of its streaming and downloading technology including YouTube, Google Play and Google Earth.

     

    The complaint alleges that Google coerced VSL into handing over trade secret information. A Google executive contacted VSL’s CEO to discuss the possibility of buying VSL’s video streaming and downloading technology. Google signed a nondisclosure agreement and VSL then provided the Google team with three CDs that contained working versions of its technology, 400 files and photocopies of additional VSL trade secrets as well as charts comparing the VSL technology with that of its competitors’. The complaint states that VSL did not know that”… behind the scenes, Google had devised a scheme to steal the VSL trade secrets and incorporate them into Google’s own products without compensating VSL for their use.”

     

    After discussions between the two companies came to a standstill over eight months later, VSL decided the deal was not going to go through and asked Google to return its intellectual property. Google returned the disks but the files and material were now covered with Post-it notes that contained information including the following:

     

    • Google employees should delete any incriminating emails
    • Google was concerned over the possibility of infringement regarding products in development
    • Engineers at Google should “close eyes to existing IP”
    • Google needed to speak with outside counsel about a non-infringement opinion
    • Google should consider infringement lawsuit risk
    • Concern over recklessness label on its infringement

     

    The complaint alleges that Google began to amend its preexisting patent applications and file new applications using VSL’s technology. In early 2012, VSL noticed that Google’s software showed significant improvement after VSL had provided access to its files and, upon examination, VSL staff found that VSL technology had been used in the company’s publicly available code. The complaint states that “Defendants’ theft of VSL’s trade secrets pervades virtually every website and product offered by defendants.”

  • Target Data Breach Fuels Litigation

    Over the last year, retailers have experienced data breaches that compromised consumer’s private credit card and debit card information. The list includes CVS, Home Depot, Neiman Marcus, Shaws, Sears, Supervalu Inc., Target and Walgreens. When Target Corporation announced earlier this year that as many as 110 million customers’ credit and customer records had been hacked during the 2013 holiday season, retailers took immediate action to upgrade and protect their systems. Within days of the announcement, states filed would-be class action lawsuits on behalf of consumers, alleging that Target was negligent in protecting card information.

     

    At the beginning of August the first consolidated class action was filed against the retail giant on behalf of thousands of financial institutions. The class action claims these institutions suffered losses of as much as $18 billion. The costs were incurred in reissuing cards, reimbursing customers and changing or canceling accounts. However, missing from the complaint were claims under the U.S. Racketeer Influenced and Corrupt Organizations Act. An attorney, representing three financial institutions, has argued in favor of bringing RICO claims and sought the court’s permission to file individual lawsuits on behalf of his clients rather than join the class action. It is unknown whether he has been granted that request.

     

    In September, the class-actions from consumers and banks were consolidated into one and filed in Minnesota – Target’s home state. Target responded with a motion to dismiss the claims from financial institutions, arguing that they had failed to state a claim for their allegations relating to violation of the Minnesota Plastic Card Security Act, negligent misrepresentation by omission and negligence. Target argues that it has a relationship with the payment processors, not the banks themselves, and therefore, cannot be held responsible for damages to a third-party under state law.

     

    It may be more difficult for financial institutions to secure a verdict against Target, given outcomes in other cases. A data breach lawsuit against Michaels Stores Inc. was dismissed after the presiding judge ruled the plaintiffs couldn’t show that they suffered direct “economic damage” from a breach that compromised as many as 2.6 million customer credit and debit card numbers. Plaintiffs in data-breach actions against Barnes & Noble Inc., LinkedIn Corp., Sam’s Club and Aetna Inc. have also faced similar rulings.

     

    Though Target’s hack may have been the impetus for the uproar over consumer data protection, underlying the conversation, now taking place, is a threat that’s been growing for years: Data hackers are increasingly operating like businesses, with sophisticated networks of criminals hawking a lucrative product – our identities.

  • Chicago Seeks to Restrict Gun Stores with New Ordinance

    Chicago has long been known as a city with a high violence rate. Decades ago, the city’s leaders created a ban on gun stores which has continued to the present time. Despite that ban, gun violence continues to be the city’s biggest problem. In 2013 guns were responsible for the deaths of 415 people. While this fatality rate is the lowest it’s been in over 40 years, it still remains three-times higher than gun violence in New York City.

     

    Mayor Rahm Emanuel argues that banning gun stores makes it harder for criminals to buy guns and thereby, lowers the number of weapons on Chicago’s streets. However, one report states that the majority of guns used in criminal acts come from outside the state of Illinois and that a large number of the guns taken by law enforcement come from cities near Chicago. It is also reported that more guns are confiscated in Chicago than in New York City or Los Angeles over a single weekend.

     

    Despite the city’s argument, a federal court ruled that banning gun stores from Chicago was a violation of the Second Amendment – the right to keep and bear arms for self-defense. The court issued an order that is forcing Mayor Emanuel to allow gun stores to open in the city. In response, the mayor introduced a new ordinance which opens the way for gun stores to operate, but restricts these businesses to less than 2 percent of the city’s limits.

     

    In a city council meeting earlier this year, Mr. Emanuel pointed out that gun stores allowed to open in the city would be required to submit their records to law enforcement upon request. Gun stores would also have to conduct an inventory audit each quarter and make sure their employees were trained on how to identify gun traffickers as well as pass a background check. Additionally, all purchases of firearms would need to be videotaped and a person would be limited to buying one gun each month. People who buy handguns would need to wait 72 hours and people shopping for shotguns or rifles would have a delay of 24 hours to complete the transaction.

     

    Supporters of the new ordinance say the strict restrictions are needed to combat the level of gun violence that besieges the city. Those opposed to the new ordinance allege that the mayor’s restrictions makes it nearly impossible for gun stores to operate, and interferes with people’s rights to buy guns legally. Advocates of gun rights are already planning to challenge the ordinance, which was approved by the Chicago City Council, and believe that a court will find it to be unconstitutional.

     

  • “Arising Out Of” Employment

    The purpose of the Workers’ Compensation Act (Act) is to protect employees against risks and hazards which are particularly characteristics to the specific work they have been employed to do. An injury is compensable under the Act only if it “arises out of” and “in the course of” the employment. The phrase “in the course of” refers to the time, place and circumstances under which the accident occurred. The words “arising out of” refer to the origin or cause of the accident and assume that there is a causal connection between the employment and the injury. An injury “arises out of” the employment if it originates from a risk connected with, or incidental to, her /his job. Both of these elements must be present at the time of the accident or injury to justify compensation.

    Jane Brais worked for the Kankakee County Circuit Clerk’s Office as a child support coordinator. On the day of her accident, Brais was returning to her office at the courthouse from a work-related meeting at a nearby administrative building. Brais and other employees normally used the employee’s entrance at the rear of the courthouse. However, the entrance was locked, which meant she had to use the main entrance instead.

    As she neared the main entrance stairs, she caught the heel of her shoe in a sidewalk defect and fell;  the sidewalk where she fell had huge cracks and was broken up. Brais testified, “You could pretty much see the gravel that they put down underneath the concrete.” She further testified there was a one-half to a one inch difference in the level between the smooth concrete and the crumbled concrete.

    Brais filed her claim against Kankakee County, and the arbitrator denied it. According to the arbitrator, Brais’ accident “occurred when she was walking along a public pathway going in to the county courthouse.” He added, “In doing so, she was not subjected to a risk to which the general public is not exposed or that was peculiar to her work.” The arbitrator found that the risk to the claimant which caused her injuries was no greater to her than to the general public.

    The Brais case found that the employee’s presence on the sidewalk approaching the steps to the courthouse’s front door was based on the demands of her employment, which had required her to attend a meeting in the administration building two blocks from her office. The court noted that her attendance at the meeting was solely for the benefit and accommodation of her employer.

    According to the appellate court, when an employee is injured in an area which is the sole or usual route to the employer’s premises, and there is a special risk or hazard on the route, the hazard becomes part of the employment. The court found that the special hazards or risk encountered as a result of using the sole or usual access route satisfied the “arising out of” requirement in the Act. The appellate court noted that the front entrance to the courthouse “was not only a usual access route for the claimant, it was her sole and only route since the employee entrance was locked.” Because she was required to attend the meeting at the administrative building, Brais’ risk of injury on the defective sidewalk was greater than that of the general public.

    The Brais Court said, “this case does not merely involve the risks inherent in walking on a sidewalk which confront all members of the public. This case involves a cracked and defective sidewalk which was a contributing cause of the claimant’s injury. Because the claimant encountered a special hazard or risk as a result of using a sole or usual access route, her injury arose out of her employment.” The court said “Application of the existing case law to the undisputed facts in this case reveals that the only reasonable inference that can be drawn from the evidence is that the claimant’s injuries arose out of her employment.”

    The appellate court, in writing its opinion, was careful to state that the hazard becomes part of the employment only when an employee is injured in an area which is “the sole or usual route to the employer’s premises, and there is a special risk or hazard on the route.”

     

  • E – cigarettes

    The State of Illinois continues in its efforts to protect nonsmokers, children and students from the dangers of smoking. In the past month, Governor Quinn has signed new laws regulating the way electronic cigarettes can be sold. The new law requires that all e-cigarettes must be sold from behind a counter, in a sealed case or in an age-restricted area. The law will also make it illegal to sell e-cigarettes from a self-service display. That law goes into effect on January 1st 2015. Another law that takes effect on the same day will prohibit the sale of e-cigarettes to anyone under age 18.

    Quinn also signed legislation, which takes effect on July 1, 2015, banning indoors and outdoors smoking on all Illinois public college and university campuses including all state-supported schools. The bill was sponsored by state Sen. Terry Link of Waukegan and state Rep. Ann Williams of Chicago. Several Illinois college campuses, including the University of Illinois at its Champaign-Urbana and Chicago, already have smoke-free policies in place. Smoking would still be allowed inside of privately owned vehicles and during activities protected by the federal American Indian Religious Freedom Act.

    Illinois Attorney General Lisa Madigan, along with 28 other state attorneys general, recently submitted comments to the U.S. Food and Drug Administration on its proposed e-cigarette rules. They urged the federal government to strengthen its proposed regulations for electronic cigarettes to include a ban on the sale of flavored products claiming that flavored e-cigarettes attract children and teenagers to the products. They also want the FDA to make e-cigarette advertising and marketing follow the same restrictions as tobacco products.

    Even Congress has become involved with 12 Senate Democrats proposing a law that would require child-proof bottles for the liquid nicotine used for e-cigarettes. The American Association of Poison Control Centers stated that toxic exposure to e-cigarette devices and liquid nicotine has risen from 271 in 2011 to more than 2,300 this year.

    Locally, Mayor Rahm Emanuel is being urged to extend his ban on smoking to include Chicago parks. While Chicago beaches and playgrounds are smoke-free, the parks do not have a similar ban. Chicago has earned a reputation for driving residents to quit, with the ban on e-cigarettes in any location that also bans smoking, disallowing sales to minors and banning all flavored tobacco product sales within 500 feet of schools. These and other measures such as one of the higher national taxes on cigarettes, has worked as smoking by Chicago high school students has gone from 13. 6 percent on 2011 to 10.7 percent in 2013 and the adult smoking rate has dropped to 17.7 percent down from 22.6 percent.

    Health officials have praised these new laws aimed at reducing smoking rates,“Today is really about driving people to quit smoking.”

     

  • General Motors Has Set A New Precedence For Auto Recalls This Year

    General Motors (GM) has set a new precedence for auto recalls this year, as the first cavalcade of auto recalls quickly turned the safety notices into background noise ignored by many of the effected car owners. GM started the avalanche on February 2014, when they announced that they had to fix a fatally flawed ignition switch on some of their small cars. That was quickly expanded twice and now numbers 2.6 million cars worldwide. The defect is linked to 13 deaths and 54 accidents.

    Hoping to clean house and avoid more government fines for recall foot-dragging, GM has announced 38 recalls this year through June, covering 14.4 million U.S. vehicles. GM alone will far exceed the past decade’s annual auto industry average of 21 million cars and light trucks.

    GM’s stepped-up recall pace could continue into midsummer, said GM Executive Vice President Mark Reuss. In the past month, GM had announced four more recalls, with the largest for 464,712 Chevrolet Camaros. The Camaro ignition key can be bumped out of position, a problem linked to three crashes and four minor injuries.

    Meanwhile, other automakers are clearing their cupboards of safety-related issues to stay out of the sights of the National Highway Traffic Safety Administration, which is promising tougher oversight to prevent a repeat of GM’s 13-year dawdling before the switch was recalled. So far this year, other auto manufacturers have announced 47 recalls, covering 8.54 million U.S. vehicles, according to government records. That’s a lot, even though it seems otherwise when contrasted with GM’s overwhelming numbers.

    The millions of recalls that have been issued this year made the situation worse and owner response rates even lower. The typical consumer reaction seems to be, “My car’s running fine. Do I need to bother?” The fact is, car owners should be bothered, but getting them to grasp that fact is a bit like trying to push a piece of string.

    The National Highway Traffic Safety Administration (NHTSA) stated that about 75% of recalled vehicles eventually get fixed, depending upon the value and age of the vehicle, how serious the problem seems and how likely the owner thinks that the issue might effect their vehicle. The agency believes toning down recall commotion would hurt, not help; safety is their number one concern and they want to increase and improve ways to reach consumers, not limit the number of recalls.

    It’s easy to see why car companies are quicker to pull the recall trigger on issues now when in the past they might have studied them longer. They do not want lawsuits such as those piling up against GM or a Justice Department criminal investigation such as GM’s or even a Securities and Exchange Commission probe that looked at whether GM was truthful with its investors. So far, GM has announced $1.6 billion in charges against its earnings for the first two quarters in order to pay for the recalls.

    Some less immediately life-threatening issues might takes months to be fixed as dealers wait for the parts needed to repair the problems. Owners must either trust that the problems are not life threatening or leave their vehicles at the dealership for weeks, incurring the expense of rental cars, taxis and altered plans. Affected owners should be aware that they may need to consider seeking legal redress for economic damages including the costs associated with repairs as well as a decline in the resale value of the effected vehicles.

    In a roundabout way, recalls can improve overall auto safety beyond the recalled and repaired cars. Good dealers can turn recalls into sales of new cars with the latest safety features as they have an influx of customers waiting for their recall repairs to be completed. With the assistance of qualified salespeople this can turn a misfortune into a major sales opportunity.

  • Traffic Ticket Quotas

    The policy of assigning quotas for the number of traffic tickets each officer must issue officially ended in Illinois after Gov. Pat Quinn signed legislation in June. This is good news for some drivers but ending the policy could have an effect on how Illinois police are evaluated as well as how much money some municipalities will earn from ticketing motorists.

    In many jurisdictions, ticket quotas were one of those traditions like doughnuts – always around but hidden in a drawer and not on the top of the desk where visitors might be able to see them. Quotas do have an upside for municipalities as traffic tickets generate income through fines. They also serve as an easy performance-measuring device for supervisors in police departments, since ticket numbers are verifiable. But the practice drew the fury of drivers who would often complain – unsuccessfully – that they were victims of an arbitrary rush on the part of police to meet a numerical goal. Some drivers argued that the number of tickets had risen at one point as a means of building public pressure to resolve tense labor negotiations between the police union and the city.

    Quinn was noted as saying that the law, which was overwhelmingly backed by both houses of the legislature, will allow police to exercise judgment when deciding whether to ticket a driver rather than simply pursuing a fixed number of citations during every shift. The law, which immediately went into effect, applies to local, county and state law enforcement officers.

    Law enforcement officers should have discretion on when and where to issue traffic citations and not be forced to ticket motorists to satisfy a quota system the Governor said in a news release; “This new law will improve safety and working conditions for police officers and prevent motorists from facing unnecessary anxiety when they encounter a police vehicle.”

    The Illinois law applies to the range of citations that police issue, including parking, speeding and other functions. It also specifically bars municipalities from using the number of tickets issued by an officer in their performance reviews. In a statement in April, as the measure was still being discussed, John H. Kennedy, executive director of the Illinois Assn. of Chiefs of Police, issued a statement opposing the bill.

    While law enforcement executives strongly agree with eliminating the imposition of arbitrary traffic ticket quotas, the bill also eliminated vital data-driven performance measures used to assist in the performance appraisal of police officers. This bill could essentially strip the ability of law enforcement leaders to establish expectations for officers and to hold officers accountable for certain minimum performance standards. The bill does address the concerns of drivers who felt that law enforcement officers had arbitrarily targeted them in order to maintain their ticket quotas.

     

     

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    Our firm handles workers' compensation and personal injury claims in Chicago, Berwyn, Joliet, Cicero, Waukegan, Chicago Heights, Elgin, Aurora, Oak Park, Oak Lawn, Schaumburg, Bolingbrook, Glendale Heights, Aurora, Niles, Schaumburg, Arlington Heights, Naperville, Plainfield and all of Cook, DuPage, Lake, Will, McHenry, LaSalle, Kankakee, McLean and Peoria Counties.