Corporate Transparency Act
This is big reminder for every small business owner.
Under U.S. Corporate Transparency Act (CTA), most corporations, limited liabilty companies and other legal entities, including homeowners’ associations (HOAs), condominium associations, and co-op associations, are required to file Beneficial Ownership Information (BOI) with the U.S. Financial Crimes Enforcement Network (FinCEN) by no later than January 1, 2025. Every U.S. business must register and file this report.
Insurance Coverage for BIPA violations.
Businesses across Illinois are facing serious challenges in securing insurance coverage for lawsuits brought under the Biometric Information Privacy Act (BIPA). And a recent decision by the federal court in Chicago – Westfield Insurance Company v. UCAL Systems, Inc. – dealt yet another blow to corporate policyholders. This ruling is just the latest in a series of legal setbacks that make obtaining coverage for BIPA claims under standard Commercial General Liability (CGL) policies an uphill battle.
What Is BIPA, and Why Does It Matter?
Make Sure Non-Disclosure Agreements Don’t Stymie Whistleblowing
Small businesses who enter into non-disclosure agreements (NDAs) with employees need to ensure that those documents clearly delineate that they will not be used to discriminate against those who engage in “whistleblower” activity—or such employers could potentially face unpleasant regulatory consequences.
This was underscored in late July, when the federal Consumer Financial Protection Bureau (CFPB) issued a “reminder” that the Consumer Financial Protection Act establishing the agency bars employers from either firing or otherwise discriminating against employees who participate in whistleblower activity, assuming the business in question is regulated by the CFPB.
Illinois Human Rights Act Expanded to Include AI Regulation
Recently, Illinois Governor Pritzker signed H.B. 3773 into law, marking a significant expansion of the Illinois Human Rights Act to include specific regulations on the use of artificial intelligence (AI) in employment decisions. This move reflects the state’s ongoing commitment to civil rights protection, now extending into the realm of advanced technology.
What Does H.B. 3773 Mean for Your Business?
Time to Review Severance Agreement
Employers who have not already done so should comprehensively review their past and present severance agreements to ensure that any non-disparagement and confidentiality clauses contained therein do not run afoul of the National Labor Relations Board’s ruling in a February 2023 case called McLaren Macomb, in which the NLRB significantly—and retroactively—restricted employers’ rights to include such clauses.
Referring to a provision of the National Labor Relations Act (NLRA) that protects employees’ rights to “engage in protected, concerted activities to address or improve working conditions,” the board wrote that: “a severance agreement is unlawful if its terms have a reasonable tendency to interfere with, or coerce employees in the exercise of their Section 7 rights.”
Chicago Paid Leave Ordinance
Employers physically located within the City of Chicago need to be ready as of July 1 to implement the new Chicago Paid Leave and Paid Sick and Safe Leave Ordinance, which stipulates that covered employees can earn up to 40 hours of paid sick leave and 40 hours of other paid leave usable for any reasons per 12-month accrual period.
Covered employees are those who work at least 80 hours within a 120 day period. Immigration status is irrelevant. The benefit year can be defined the same for all employees or entirely individually, and can be tied to the calendar year, fiscal year, tax year, contract year or anniversary date of employment.
AI & Content Creation
Businesses using generative AI programs like ChatGPT to create any content—whether for blogs, websites or other marketing materials, and whether text, visuals, sound or video—need to ensure that they’re not inadvertently using copyrighted materials in the process.
Clearly, the times they are a changing….and businesses need to adapt to the changes. Employers should promulgate messages to their employees and contractors updating their policy manuals to ensure that communications professionals and others crafting content are aware of the risks of using AI-generated materials, which go beyond the possibility that they are “hallucinated” rather than factual—although that’s worth considering, too.
Non-Competes Now a Nonstarter
This is really big news!
Businesses that have entered into non-compete agreements with current or recently departed employees will need to come up with other ways of achieving the investment-protecting goals those non-competes were designed to accomplish. That’s because the Federal Trade Commission has issued a final rule, which will take after 120 days after publication in the Federal Register, that invalidates current non-competes for most workers and bans new ones for all employees.
Corporate Transparency Act
While Congress might have had worthwhile purposes in passing the Corporate Transparency Act, a section of the 2021 National Defense Authorization Act, it’s nonetheless unconstitutional, according to a federal judge’s summary judgment ruling in an Alabama case brought by the National Small Business Association (NSBA).
The Act requires most entities incorporated under state law to provide the U.S. Treasury Department’s criminal enforcement arm with significant personal information about their stakeholders, in an attempt to prevent money laundering, tax evasion and other financial crimes that often make use of shell corporations.
Employee or Freelancer?
Is a person who works for your business financially dependent on you, or can they potentially independently profit based on their skill set? Will they be part of your company indefinitely? Do they perform a central, daily, integral role? Do you dictate when, where and how they work? Do you limit their ability to work for others? Can the person apply what they do to other endeavors, widening their market reach and leading to other revenue streams?
Small businesses and other employers will need ask themselves this set of questions and consider the “totality of the circumstances” in determining whether to classify people who work for them as employees or independent contractors, in a rule change published by the U.S. Department of Labor’s Wage and Hour Division on January 10, set to take effect March 11.
Chicago Business Attorney Blog