How to Limit Your Liability to Subcontractor Employees for Workplace Injuries
In a recent decision, Carney v. Union Pacific Railroad Company, 2016 IL 118984 (Oct. 20, 2016), the Illinois Supreme Court provided some guidance to owners and general contractors on limiting their liability to subcontractor employees in construction injury cases. Under the common law, anyone who employs an independent contractor is generally not liable for that contractor’s acts or omissions, but the hiring entity may still be liable for its own negligence.
In this case, Union Pacific Railroad Company entered into a written agreement with a general contractor, Happ’s, Inc., to remove three abandoned bridges on property owned by the railroad. Under this agreement, Happ’s purchased the bridges from the railroad and agreed to provide the labor, tools, and material necessary for the work. The contractor hired a subcontractor to assist with the removal. An employee of the subcontractor was severely injured during demolition of one of the bridges, when a falling bridge girder severed his legs, and he filed a negligence claim against the railroad. The court considered owner liability under three potential claims: owner control, negligent hiring, and dangerous condition on the land.
Major Changes to Exempt Status under the FLSA
The Department of Labor (DOL) has made some pervasive changes to the Fair Labor Standards Act (FLSA) which will affect the minimum salary requirement for employees to be considered Exempt from overtime.
As of December 1, 2016 the DOL has raised the minimum salary for administrative, professional, and executive positions from $23,660 to $47,476 to be qualified for Exempt status under the FLSA’s minimum wage and overtime requirements. Highly Compensated Employees must be paid a minimum of $134,004 per year. This applies to all employers no matter how small.
In addition, the Department of Labor will adjust this base salary for administrative, professional, executive, and highly compensated employees. Also, there are still no salary level requirements for outside sales, teachers, doctors and lawyers. Read more…
Misconduct Expanded in Recent Update of Unemployment Insurance Act
On December 4, 2015, House Bill 1285 was signed into law, codifying how the industry defined employee misconduct for purposes of unemployment insurance claims. With the new legislation, the question becomes whether the clarified misconduct violations will automatically bar a former employee from obtaining unemployment benefits.
Prior to House Bill 1285, an employee was ineligible for unemployment benefits if he or she committed egregious acts such as committing a theft or felony, for work-related misconduct, out of work because of a labor dispute, or if the employee quit voluntarily without good cause. Illinois Appellate Courts have held that a policy did not need to be written or even articulated in circumstances where the behavior violates a policy which is self-evident, such as stealing, Ray v. IDES, 244 Ill. App. 3d 233 (1st Dist. 1993) or fighting, Bandemer v. IDES, 204 Ill. App. 3d 192 (1st Dist. 1990). However, in situations where the misconduct was not specifically addressed in employer policies, proof of warnings to the misconduct that violated the policy was required. See Zuaznabar v. Bd. of Review, 257 Ill. App. 3d 354, 358 (1st Dist. 1993) Read more…
Criminal Background Check and “Ban the Box”
Effective January 1, 2015, Illinois legislature enacted a law that requires private employers with 15 or more employees to remove “the box” on their employment applications which asks whether or not the applicant has been convicted of a felony. Thus the name “Ban the Box”.
Some employers ask that potential applicants complete an employment application before an interview or job offer. In the past, most employment applications asked whether or not the person has been convicted of a felony or a similar question.
With the new law in place, employers are now compelled to consider only whether or not the applicant is “qualified” for the job based on information provided by the applicant and prior to an interview. Once a decision has been made to conduct an interview or provide a conditional offer of employment, then the employer may require a criminal background check.
There are three exceptions to this rule: 1) if federal or state law excludes specific criminal convictions because of the nature of the position being applied for, 2) if a fidelity or equivalent bond is required and certain convictions would disqualify the candidate, or 3) the position requires an Emergency Medical Services (EMS) license.
Domestic Violence in the Workplace
Unfortunately it sometimes takes a tragedy such as the recent shooting of Nadia Ezaldein at Nordstrom store by her ex-boyfriend, Marcus Dee, to make us as business owners think about what we could have done to prevent this from happening in our place of business. Fortunately, the State of Illinois has 2 little known laws in place that can offer both employees and employers some added protection from domestic violence and abuse in the workplace. These are the Victims’ Economic Security and Safety Act (VESSA) and the Workplace Violence Prevention Act.
McDonald’s Triumphant in “Mc” Trademark Dispute
An individual who wanted to trademark “BioMcDiesel” won’t be allowed to do so according to the Trademark Trial and Appeal Board, which ruled (McDonald’s Corp. v. Joseph, July 14, 2014, Bergsman, M.) that consumers would likely confuse the proposed biofuel mark with McDonald Corp.’s family of “Mc” trademarks.
The applicant, Joel Joseph, filed an intent-to-use application to register the trademark “BioMcDiesel,” in standard character form, for biodiesel fuel. McDonald’s opposed this registration for several reasons, including that “BioMcDiesel” could be construed as part of McDonald’s family of “Mc” formative marks and it had the “likelihood of confusion.” The applicant conceded that that “Mc” family of marks is famous and has been in use much longer than his application filing date.
The applicant’s mark, “BioMcDiesel” has the “Mc” formative in the middle of the mark with a generic term following it, which does not distinguish it enough from McDonald’s marks since its family of marks has such items as Chicken McNuggets, Egg McMuffin, and Sausage McMuffin.
The applicant’s biodiesel fuel is an alternative fuel for diesel engines or can be used as an additive to standard diesel fuel. It can be made from used fryer grease, also known as yellow grease. McDonald’s is one of the largest suppliers of yellow grease and has received media publicity for its recycling programs. It promotes its sustainability programs, including its recycling efforts, on its website (McDonalds.com).
A WOMAN’S RIGHT TO BIRTH CONTROL VS. RELIGIOUS RIGHTS
On June 30th, the U.S. Supreme Court ruled in favor of three family-owned businesses, with the majority of the court saying that businesses can refuse to pay for certain forms of contraception they find “morally repugnant.” At issue are four contraceptives known as abortifacients which are contraceptives that prevent ovum implantation or cause a miscarriage shortly after becoming pregnant.
In writing the majority opinion, Justice Samuel Alito noted that the Obama White House already provided an opt-out for nonprofit religious corporations by allowing an outside insurance company to pay for birth control and felt this should also apply to for-profit employers. It was suggested by the court that the Government could assume the cost of providing the four contraceptives at issue to women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.
Federal Involvement in Gay Marriage Rights
Recently the Obama administration, along with the Department of Labor, have proposed expanding the definition of spouse to allow legally married same-sex couples the same rights as heterosexual couples under the Family Medical Leave Act (FMLA) and Family Military Leave Act. This means that if same-sex couples were married in a state that has legalized gay marriage, then these couples would experience the benefits of the FMLA no matter which state they live in, even if gay marriage in that state is illegal. This in effect would impose federal law over something which has always been a state regulated matter.
In addition, this week U.S. District Judge Richard Young, for the 7th Federal Judicial District, ruled that the State of Indiana’s ban on gay marriage was unconstitutional. This issue is expected to be presented to the U.S. Supreme court because several similar Federal rulings are on hold pending appeal.
What Happens Now that the Redskins Trademark Has Been Revoked?
Published on 6/23/2014
On June 18, 2014, the Trademark Trial and Appeal Board of the USPTO cancelled the Washington Redskins’ registrations for the “Redskins” trademarks on the grounds that the term “redskins” is disparaging of Native Americans. Hear Ken McLaughlin being interviewed on the John Kass and Lauren Cohn show on June 19, 2014 on WLS 890AM! What do you think?
For more information on Trademark and Copyright law, please contact Ken McLaughlin, Jr.
Starting a Business as a Non-Citizen, Part lll (Work Visas for USA)
This is the third installment of a series discussing the options for non-citizen business investors to obtain Work Visas in the USA. The following are a list of the least desirable visa options a non-citizen may apply for in order to work for the company that he or she built:
Temporary Visas (Less than one year duration)
B-1:The B-1 visa temporarily allows non-citizens to participate, and get paid, for activities of a “commercial or professional nature.” While the United States Citizenship and Immigration Service (“USCIS”) does not limit the definition of “commercial or professional nature,” managing a business would be an accepted activity under B-1 so long as the applicant can show that the purpose of the trip is legitimate, the stay is for a limited period of time, there are adequate funds to cover the trip, and the applicant has a residence outside the United States that they do not intend to abandon. However, with a B-1 visa and extension good for only one year in the United States, this visa is a temporary solution that would not be ideal for a potential business owner or investor looking to build a business. Read more…
- Ban the Box
- Criminal Background Check
- Federal Law
- Handbook Policy
- Human Resources
- Illinois Law
- Intellectual Property
- IRS Regulations
- Job Posting
- Medical Marijuana
- S Corporation
- Same Sex Marriage
- United States
- Violence in the Workplace
- Weapons in the Workplace
- Work Visas
- Workers' Compensation