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.

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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.

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 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.

Source:

http://www.eeoc.gov/employees/howtofile.cfm

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.

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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.

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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.

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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.

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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.

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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:

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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.”

The plaintiffs argued that, as enrollees in a federal exchange, they were not entitled to the subsidies based on the express language of the law, itself, which provided subsidies only to those enrolling through a State sponsored exchange. While it may seem as if the plaintiffs in King were arguing against their own self-interests by asserting that they did not qualify for the subsidies, in fact, they did not want to receive the subsidies because they did not want to have to enroll for any health care plan at all, and without the subsidies, they would have fallen under an ACA financial exception, allowing them to opt out of enrolling for coverage, altogether.

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When you or a loved one has been injured or if a loved one has been killed in an accident caused by another, you are entitled to compensation for your losses. Ordinarily, a plaintiff in a personal injury or wrongful death action is entitled to compensatory damages, which are designed to compensate for actual losses suffered as a result of the injury. Compensatory damages may cover losses such as medical bills, lost income, emotional distress, loss of consortium, and pain and suffering.

Punitive damages, on the other hand, do not compensate the plaintiff for his or her losses. Instead, they are designed to punish the defendant for causing the plaintiff’s injuries and serve as a deterrent both to the defendant and others from engaging in such actions again. Recovering Punitive Damages In order to recover punitive damages in Illinois, the plaintiff must show that the injuries were caused by more than merely an accident. Punitive damages will only be awarded if the plaintiff can prove, by a preponderance of the evidence, that the defendant’s actions were the result of:

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If you are caring for a child with a disability, you have no doubt worried about how your child’s needs will be met following your death, particularly if your child receives Medicaid or SSI. These benefits have strict income eligibility guidelines, and a direct receipt of money would result in the loss of benefits until the inheritance was spent down below the income limits. But without your support, your child will have no money to pay for uncovered medical expenses, recreation or even basic living necessities. How can you protect your child’s eligibility for these benefits but at the same time ensure his life will be enjoyable? Ultimately, this can be achieved by leaving his share of your estate to a third-party special needs trust.

Requirements for Third-Party Supplemental Needs Trust

A trust is an agreement between the person who creates and funds the trust (the trustor) and the person who manages the trust (the trustee). The trustee is responsible for managing the trust’s assets, which can include a mix of property such as cash, real estate, or investment accounts, for the benefit of the trust beneficiary. A third-party special needs trust, also called a supplemental needs trust or SNT, is created by someone other than the Medicaid or SSI recipient to hold assets left to the recipient as part of an inheritance.

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In the wake of the mortgage and foreclosure crisis that has plagued the nation over the past several years, you may have noticed an increase in advertisements for mortgage counseling services. These companies, which target not only homeowners but mortgage bankers and brokers as well, promise to help homeowners who are delinquent on their mortgage modify the loan’s terms to avoid foreclosure. In exchange for these services, homeowners are asked to pay an upfront fee. The only problem? Requiring payment of upfront fees is illegal in Illinois.

What is a Loan Modification?

Loan modifications alter the terms of an existing mortgage to make payments more affordable for a homeowner who is in danger of defaulting. In most cases it is done prior to a scheduled rate increase, for example when a five-year adjustable rate mortgage (ARM) is about to end, but can also be done when the mortgage holder’s circumstances have made it impossible for him to continue to make payments under the current terms of the mortgage.

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Earlier this month the United States Supreme Court heard oral arguments in King vs. Burwell, which challenges the payment of insurance subsidies to health insurance enrollees under the Affordable Care Act (ACA).

A Brief Intro to the Affordable Care Act

One of the major provisions of the ACA requires citizens to sign up for health insurance. For individuals who cannot get insurance through an employer, the ACA established healthcare exchanges, which allow people to shop for the insurance plan that best suits their needs and their budget. For those living in states that opted not to create their own healthcare exchange (34 did not), insurance may be purchased on the federal exchange.

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The Fourth Amendment to the U.S. Constitution requires police officers to have probable cause before making a traffic stop. In other words, the police can only stop a driver if they have reasonable grounds for pressing charges. For example, if a driver runs a traffic light, drives faster than the posted speed limit or commits any traffic violation leading to an accident, then he can be pulled over by police.

So if the Constitution requires police to have probable cause before making a traffic stop, does that mean random sobriety checkpoints–where any driver can be stopped, whether or not probable cause exists–are unconstitutional? No. The U.S. Supreme Court has ruled that random checkpoints are an exception to the Fourth Amendment guarantee against unreasonable searches and seizures.

Constitutionality of Random Checkpoints

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Millions of Americans have lost their homes to foreclosure since the 2008 subprime mortgage crisis. And for thousands of former homeowners–including in Illinois–the foreclosure nightmare is ongoing.

After a homeowner defaults on his mortgage payments, the lender files a foreclosure action. The house then becomes subject to a foreclosure sale, the proceeds of which go to the bank. However, a foreclosure sale will not necessarily generate enough proceeds to cover the bank’s expenses (i.e., what the homeowner owes to the bank). Such was the norm after the recent housing crisis.

Now, years later, some lenders are pursuing deficiency judgments to recoup borrowers’ old debts. Specifically, the “deficiency” is the difference between how much the property sold for at auction and the amount that was still due on the loan. Lenders can freeze the borrower’s bank account, garnish his wages and seize his assets in order to recover that difference, or at least a portion of it.

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Illinois business owners face numerous legal hurdles, including issues related to incorporation, taxes, health insurance and concealed carry permits. However, that does not include one of the most onerous legal hurdles of all–litigation.

Business owners can be sued for a variety of reasons. Employment discrimination is one of the most common examples. If you are a business with at least 15 employees in Illinois, a public contractor or a state agency, then you could become the subject of an employment discrimination lawsuit. Specifically, the law prohibits employers from discriminating against any individual because of:

• Race or color;
• Religion;
• Sex or sexual orientation;
• National origin, ancestry, citizenship status or language;
• Age (40 and older);
• Order of protection status;
• Marital status or pregnancy;
• Physical or mental disability;
• Military status or unfavorable discharge;
• Arrest record;
• Real estate transactions;
• Access to financial credit; and
• Availability of public accommodations.

Prohibited employer actions include discrimination in hiring, promotion, pay and discharge.

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Buying or selling a house can be a stressful process. For those who feel they have found a perfect home, discovering defects after buying the house can sour the dream of homeownership. Similarly, if a seller sells his house and moves on to better prospects, he may find himself pulled back by a buyer suing the seller for defects in the house that the buyer accuses the seller of keeping hidden. In order to avoid these situations, and ensure a smooth transaction, Illinois law has some safeguards in place protecting the seller and buyers.

Illinois Real Estate Law 

In Illinois, the Illinois Real Property Disclosure Act governs the information parties must give or receive when transferring real estate. The Act does not apply to all transfers of property, and includes some exceptions listed in the language of the law.

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With winter in Illinois comes snow, many times in great amounts that accumulate on the roads, pavements, and pathways. Depending on the amount of snow, and the measures taken to remove it, the buildup of snow can cause various dangers to people walking on sidewalks. Slipping and falling on snow or ice can cause minor to serious injuries, and leave the injured person with medical or other personal bills that he or she may not be able to pay. In Illinois, holding a property owner responsible for injuries sustained in a fall due to snow on the property may be difficult, although not impossible.

Law Regarding Snow Removal

Illinois property owners are generally not required to remove snow that naturally accumulates on their property. Therefore, property owners are not liable for injuries caused due to the natural accumulation of snow or ice on their property. However, a property owner can go on to create a situation whereby he or she is liable for the injuries. If a property owner hires someone who negligently removes snow or ice from his or her premises, and therefore creates unnatural accumulations of snow, the property owner becomes liable for injuries caused by this snow. This difference between natural accumulations and unnatural accumulations should encourage property owners to make sure they are careful in who they hire to remove the snow from their property.

There are other situations in which an injured person may otherwise recover from a property owner. In a situation where the walkway on the property is designed in a faulty way so as to cause snow and ice to collect in a dangerous way, a court can find that the design caused the snow or ice to collect in an unnatural condition.

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Thinking about the future and what can happen in case of illness, disability, or incapacity is not something that everyone likes to do. However, planning for these situations can be a great way to be prepared and to ensure that your wishes for your future finances and health care are honored. One way to accomplish this in Illinois is through the creation of a power of attorney (POA). A POA can be beneficial in most situations. However, it is limited in terms of planning for situations after death. For after death planning, there are other estate planning methods that are better suited to accomplish that long term goal.

What is a Power of Attorney? 

A power of attorney is a legal document authorizing an arrangement between two people in which one person, known as a principal, appoints an agent and authorizes him or her to make property, financial, personal, and health care decisions for the principal. The agent who acts on behalf of the principal in this arrangement does not have to be an attorney.

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