by Christopher Graham and Joseph Kelly

Will your company allow alcohol at this year’s holiday party? If so, unless you do some risk management, you may end up with a ligation lump of coal in your Christmas stocking — such as claims from drunk driving and sexual harassment.

Here are some suggestions:

• Keep employees who overindulge from driving. Designate sober drivers or provide cab fare.
• Limit the number of drinks. No open bar, provide drink tickets, hire a professional bartender.
• Invite spouses and even kids. Employees are less likely to overindulge when it’s a family affair.
• Schedule the party on a weeknight.
• Make food or entertainment — not drinking — the focus.
• Make it voluntary.
• No mistletoe!

For more suggestions about how to avoid potential liability, check out of this useful post from the Corporate Law Report.

Tags: Employer, holiday party, liability, sexual harassment

by Christopher Graham and Joseph Kelly

For years OSHA has required employers with toxic chemicals in the workplace to make certain disclosures — Hazard Communications (“Hazcom”) — to its employees.

OSHA created a new Hazcom standard which requires employers to train employees regarding the new standard and the deadline for compliance is December 1, 2013.

Failure to comply can lead to significant fines.

For more information on the new Hazcom standard, here’s an informative Q&A from OSHA.

Tags: OSHA, Hazcom

by Christopher Graham and Joseph Kelly

The U.S. Supreme Court is set to hear oral arguments on the issue of whether severance payments to laid off employees are taxable. The 6th Circuit Court of Appeals (covering Tennessee, Kentucky, Ohio and Michigan) previously decided that severance payments aren’t taxable. See U.S. v. Quality Stores, Case No. 10-1563 (6th Cir. 2012).

The Federal Circuit Court of Appeals held that severance payments were taxable. See CSX Corp., et al v. U.S., 518 F.3d 1328 (Fed. Cir. 2008).

The Supreme Court’s decision — expected sometime next year — will be significant for both employers and employees because both could have claims for tax refunds on taxes already paid on severance if the Supreme Court decides severance pay isn’t taxable.

Employers and employees should already be filing for refunds if they intend to reap the benefits of the Supreme Court ruling that severance pay isn’t taxable.

Tags: Severance pay, tax, employment law

by Christopher Graham and Joseph Kelly

Unfortunately for some companies their trade secrets don’t stay secret. (Not sure if information is a trade secret? See our post “What’s a trade secret?”)

Too often companies fail to take the necessary steps to protect that information.

Here are some of the steps businesses can take to protect trade secrets and confidential information:

• Stamp documents as confidential;
• Limit access to trade secrets and confidential information to employees on a need-to-know basis;
• Password-protect electronic files containing trade secrets or confidential information;
• Restrict physical access to documents containing trade secrets;
• Require employees and contractors to sign confidentiality or non-disclosure agreements.
• Establish a written confidentiality policy and enforce it.

Companies that don’t take proactive protective measures run the risk of the losing their most valuable assets.

Tags: Trade secrets, confidential information

by Christopher Graham and Joseph Kelly

Trade secrets are often a company’s most valuable assets.

Illinois (and most other states) have adopted the Uniform Trade Secrets Act which defines a trade secret as:

information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that:

(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and

(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. 765 ILCS 1065/2(d)

In simpler terms, a trade secret is valuable information kept confidential. Common examples are Col. Sander’s recipe for fried chicken and the formula for Coca-Cola.

But most employers aren’t in the fast food or soft drink industry.

A more common example of a trade secret is a customer list.

Is a list that only contains customer names and contact info. publicly available likely a trade secret? No.

But what if a customer list contains other information that makes the list distinctive? Customer lists that include things like sales history, pricing information, contact info. for decision-makers, product preferences are much more likely to be trade secrets.

A company’s ability to succeed often depends on its ability keep its trade secrets protected. For more information on how to protect trade secrets, please see our post – “Protecting Trade Secrets and Confidential Information”

Tags: Trade secrets, confidential information, customer lists, Illinois, Uniform Trade Secrets Act

by Joseph Kelly

Employers hazy on new pot law (Ameet Sachdev, Chicago Tribune, October 27, 2013)

Many Illinois employers have a zero tolerance drug policy. Those employers may want to read the story linked above which explains how such policies may soon conflict with their employees’ rights under new Illinois medical marijuana laws.

Tags: Illinois, employee handbook, medical marijuana, zero tolerance

by Joseph Kelly

An offer of employment is not enough consideration to make a new employee’s non-competition or non-solicitation agreement enforceable — at least according to an Illinois appellate court in Fifield, et al v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327 (June 24, 2013)

Previously, an offer of employment was considered sufficient consideration for a new employee’s agreement not to compete or solicit. According to the appeals court, a non-competition or non-solicitation agreement for a new employee will be enforceable only if the employee has two years of continued employment or there’s some additional consideration above and beyond the initial offer of employment. The court didn’t elaborate on what “additional consideration” would make such an agreement enforceable.

To ensure that a new employee’s non-competition and non-solicitation agreements are enforceable, Illinois employers should consider offering some sort of monetary payment or employment benefits to that new employee in exchange for those agreements.

by Joseph Kelly

Governor Quinn used his amendatory veto powers yesterday to reject portions of the proposed Illinois Concealed Carry Act, including the part that would allow employees with concealed carry permits to have firearms in their own vehicle in a parking lot and to store and retrieve their guns in the “immediate area” of their vehicle. It remains to be seen whether Illinois employers will be able to completely prohibit employees from having firearms at work, including in parking lots, under the concealed carry law that ultimately goes into law. Illinois employers accordingly may want to consider a policy on firearms to specifically address employee’s rights regarding firearms in the workplace.

by Joseph Kelly

The requirement that employers with 50 or more full-time employees provide health insurance or risk being fined has been postponed from January 1, 2014 to January 1, 2015. This requirement, according to the Obama administration, can only work if businesses accurately report to the government about their employees’ insurance coverage. The administration has suggested that changes will be made to Obamacare to make it easier for employers’ to report on their employees’ healthcare coverage. But there’s nothing to suggest that employers with 50+ employees won’t be facing this mandate in 2015.