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Recent Blog Posts
How a Non-Compete Agreement Can Protect Your Business
Non-compete agreements (NCAs) are very common in this day and age, especially in specific fields that are at the leading edge of technology, but also throughout business in general. There are a number of prevailing myths about NCAs. One myth is that NCAs can be fairly far-reaching and restrictive. At the same time, another myth is that they are not typically enforceable. The truth is that NCAs are enforceable, but the more far-reaching and restrictive an NCA is, the less likely a court will deem it enforceable. Still, NCAs can be powerful tools in protecting your business, your customers, and your proprietary information.
Illinois Trends
While Illinois does not have a general statute that regulates the creation of NCAs, common-law precedent establishes the two major trends that Illinois courts continue to follow in regulating NCAs. Generally, the state tends to disfavor NCAs because they are restraints upon trade, which is against public policy. In order to be enforceable, a court must find that a legitimate business interest exists worthy of protection to support an NCA, rather than a mere desire to hamstring a potential competitor or former employee.
The Importance of Business Succession Planning
Statistics from the U.S. Small Business Administration indicate that more than half of the country’s small business owners are over 50 years of age. Out of that number, only about 30 percent have a written succession plan for their business, and this can pose severe problems for their heirs or other successors in interest. If you are in this situation, it is generally in your best interests to consult an attorney to cement your future.
No Successor?
No one likes to admit it, but if you have a dearth of heirs or business partners that you truly trust, or if finances are not what they ought to be, selling the business as a whole may be an option for when you step down or pass away. An alternative that has been gaining popularity in recent years is to sell your interest (presumably, your controlling interest) to your employees, forming a cooperative or creating an employee stock ownership plan (ESOP). The decision must be based on what is best for you and your family and your employees, of course, but selling to employees does have one advantage: they know your brand and your product. Many employers see this option as similar to giving the business over to family given the closeness involved.
How to File a Claim for Wrongful Termination
The state of Illinois is an at-will employment state. Essentially, this means that under state law, an employer is not required to have a good reason for firing an employee. Thankfully, state and federal laws protect workers from being fired for bad reasons, such as in the case of a discriminatory termination. Protected Rights under State or Federal Law Under state and federal law, an employer may not fire you based upon your race, color, religious preferences, pregnancy status, gender, age, national origin, marital status, sexual orientation, order of protection status, or genetic information. Moreover, there are certain protections for individuals with disabilities, an unfavorable military discharge, or an arrest record. Those who believe they may have been fired under such pretenses may be able to file a wrongful termination claim. Filing a Wrongful Termination Claim Depending upon which law was violated, you will most likely need to file your wrongful termination claim with either the Illinois Department of Human Rights (“IDHR”) or the U.S. Equal Employment Opportunity Commission (“EEOC”). In most cases, charges of wrongful discriminatory termination will need to be filed in person, at the IDHR or EEOC location nearest you. Alternatively, you may be able to file by mail or telephone. Be aware, however, that both state and federal regulations impose strict statutes of limitations that determine how long you have to file after the discriminatory incident takes place. If you wait too long you may end up being barred from pursuing your claim. To file a claim, an employee must provide certain basic information about him or herself, as well as basic information about the employer, and then pertinent information regarding the incident and how it was discriminatory in nature. Mailed submissions must also be signed; they will not be investigated otherwise. Difficulty Proving Discrimination in an At-Will Employment State Even in states where an employer must provide a justification for firing an employee, proving discrimination can be difficult. This challenge is only further increased in an at-will employment state because there is often little evidence regarding the reason behind your job loss. Rather than attempt to file the claim on your own, it is advised that you contact a skilled and experienced attorney to assist you in the process. At Law Office of James F. White, P.C., we understand just how stressful a wrongful termination can be. To help ease the burden and give you time to manage life, our skilled Illinois employment law attorneys can work with the state or federal agencies on your behalf to ensure your side of the story is heard and understood. Learn more about how we may be able to help with your wrongful termination claim by scheduling a free initial consultation. Call 630-466-1600 today.
Estate Planning: Living Wills and Important Quality of Life Decisions
People often assume that estate planning is only for the rich, but there are important pieces that apply to everyone—from those that are in nursing home care or facing life-threatening illness to those that have only just turned 18. Otherwise known as advance directives, these critical aspects of an estate plan can help ensure you receive the medical care you want, and they can aid your family and care providers when making important end of life decisions.
Power of Attorney
If, at any time, you become unable to make medical decisions for yourself, a medical or health care power of attorney can allow someone to make them for you. This person may be a spouse, a child, a friend, or even a specific member of your community. You are also permitted to choose one or more alternate decision-makers, should the person you appoint be unable to fulfill their role.
Careful consideration must be given when appointing a power of attorney; while other estate planning documents (such as a living will) may be present, such directives may not cover certain situations. As such, your power of attorney should be someone that:
Choosing the Right Business Structure for a Startup Company is Crucial
Determining how to structure a new business can feel like one of the most daunting and mundane tasks in creating a startup company, but it can also be one of the most crucial decisions. It determines who will be liable if the company goes into debt or bankruptcy, it can negatively affect the personal income taxes of owners, and the wrong decision may even limit the company’s decisions and possibilities. For these reasons, startup companies should investigate the pros and cons of each business structure and carefully weigh them against the company’s current and projected needs.
Sole Proprietorships
As one of the simplest business structures to set up, sole proprietorships are popular choices for solo businesses with few or no employees. Expenses and income are all included on the owner’s personal income tax return, which can offset income from other sources if the company experiences a loss. There are, however, some drawbacks to this business structure, namely the fact that the owner is responsible for all liabilities. They are highly susceptible to having their personal assets seized if their company goes under and decides to file bankruptcy. However, if there is adequate insurance or few assets to protect, it can prove to be an easy, low-cost solution to starting up a new business.
Estate Planning: Conducting Periodic Estate Plan Reviews
If you already have an estate plan in place, congratulations! You have taken a very important step in securing a future for your heirs. However, it is crucial to also understand that, contrary to popular belief, estate plans are not evergreen. Instead, they must be periodically reviewed and, if necessary, updated. The frequency and timing will vary, based on your particular circumstances, but the following guidelines should help give you an idea of when a review or update may be necessary.
Size of Estate a Factor
Because state and federal tax laws change each year, those with larger estates (i.e. estates that exceed state or federal exemption minimums) should review their estate plans annually. Those with smaller estates may be able to get by with a review every five years, so long as the valuation of their estate remains below the applicable state and federal exclusions and their personal situation has remained the same. There are, however, additional factors that may require a review prior to the one or five year time frames.
Department of Transportation Orders Recall of Defective Takata Airbags
The United States Department of Transportation has ordered the recall of close to 34 million vehicles as a result of faulty airbags manufactured by the Japanese company Takata. Some driver and passenger side air bag inflators are filled with a type of propellant that can cause the airbag to rupture. The defective airbags have resulted in at least six deaths worldwide and more than 100 injuries, which will likely lead to a number of personal injury lawsuits against the manufacturer based on products liability.
Illinois Product Liability Claims
Product liability is a theory of law that holds either the manufacturer, seller, or both, liable for injury caused by a defect in their product – from the maker of a piston that was purchased and installed by the car manufacturer to the manufacturer who placed the faulty piston in the vehicle.
Commercial Property Valuations in Illinois
When you are purchasing real estate, you want to make sure you are paying a fair price. This is especially true in commercial transactions, which typically involve the exchange of significant amounts of money. If the purchase will be financed by a bank loan, proper valuation is not only important to protect your interests, but is a requirement for bank-financed transactions.
Appraisal – The Key to Determining Value
The value of commercial property is determined through a property appraisal conducted by a qualified appraiser. A qualified appraiser is a person who has either been certified by a professional appraisal organization, or has the required education and experience to conduct appraisals in his area of expertise. A real estate agent is not a qualified appraiser (unless he or she also has these certifications), so the sales price he or she sets is insufficient to support the valuation, and should not be relied upon.
Illinois Medical Marijuana Program: Guide for Employers
Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act (Act) went into effect January 2014, making Illinois the 21st state to allow the use of medical marijuana. The Act permits Illinois residents who have a qualifying medical condition, or a caregiver of an individual who has a qualifying medical condition, to register with the state for receipt of a medical marijuana card. Registration authorizes the cardholder to obtain up to 2.5 ounces of marijuana from a dispensary every 14 days. But what impact does the Act have on employers?
Employer Rights under the Illinois Medical Marijuana Pilot Program
The Act prohibits employers from discriminating or penalizing any employee due to his status as a medical marijuana card holder. However, that does not give qualifying individuals a license to come to work under the influence. Under the Act, Illinois employers are permitted to:
U.S. Supreme Court Upholds Subsidy Portion of Affordable Care Act
Whether you are in favor of or opposed to the Affordable Care Act (ACA or "Obamacare"), this past summer the United States Supreme Court ruled in favor of a key provision of the Act, upholding a provision authorizing the payment of insurance subsidies to individuals who enrolled under the ACA through the federal insurance exchange. The provision at issue in the case of King v. Burwell, was upheld in a 6-3 decision written by Chief Justice John G. Roberts, Jr. King v. Burwell and Subsidies under Obamacare King dealt with a portion of the ACA that offered subsidies to any eligible person who enrolled in a healthcare plan through “an Exchange established by the State.”
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