Articles Posted in Small Business

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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.

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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.
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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.

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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.

Help with Business Law Issues

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.

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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.

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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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Chicago Business Lawyer

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,

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ADA Compliant Websites

Is Your Website ADA Compliant?

UPDATED APRIL 14, 2021: 

A federal appeals court in California has held that the protections of the ADA do not apply to websites.  Its ruling also finds that Title III applies to tangible, physical places. It does not apply to intangible places such as a website.  The case is: Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. 4/7/2021).  Not all the circuits agree with this result, so SCOTUS will eventually have to look at the matter. 

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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:

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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.

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