The Blog for Business Law

Latest from The Blog for Business Law

For many of our business clients, addressing the realities of estate and business succession planning amid the COVID-19 pandemic may seem unnecessarily alarmist or generally depressing. However, it is an all too necessary and practical concern for the sober-eyed, forward-thinking business leaders that make up our clientele. The lynchpin of a good succession or estate plan is understanding of how the plan works during any type of disruption. Many of our clients, quite understandably, associate estate planning exclusively with severe health issues, their own mortality, and planning for the future care and well-being of their loved ones. However, a good…
The Occupational Safety and Health Act (“OSH Act”), requires employers to satisfy the safety and health standards and regulations issued and enforced either by the Occupational Safety and Health Administration (“OSHA”) or by an OSHA-approved State Plan. In addition, the OSH Act’s General Duty Clause, https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=OSHACT, obliges employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. OSHA-approved State Plans may have standards, regulations and enforcement policies that differ from OSHA’s, but they must achieve results at least as effective as OSHA’s. (To see which states have such State…
The COVID-19 Pandemic has forced employers to face public health, customer service, workforce, travel, and business disruptions in constantly evolving circumstances.  Many of the decisions that employers must make on-the-fly create unintended consequences with serious labor and employment law liability issues.  The Business Law Blog will address these issues in a series of three blog posts to expose the subtle legal issues obscured by gut-wrenching decisions made to protect healthy workers from exposure to co-workers who may have the virus, to serve customers without putting them at risk to COVID-19 infection, and to cut losses as economic activity grinds to…
I. Illinois’ New Law Legalizing Cannabis for Adults Authorizes Employers to Maintain Zero Tolerance or Drug Free Workplace Policies and to Conduct Drug Testing. The Illinois General Assembly enacted the Cannabis Regulation and Tax Act (“Cannabis Act”) on May 31, 2019.  Governor J.B. Pritzker signed the bill into law on June 25, 2019.  It takes effect on January 1, 2020.  http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3992  The Cannabis Act, among other things, legalizes the possession and use of recreational marijuana for adults age 21 and older.  It directly addresses certain aspects of workers who use recreational marijuana both in and out of the workplace.  In…
A. The Department of Labor Issued Its Final Rule on September 24, 2019. The Department of Labor (“Department”) issued a final rule revising the regulations interpreting the Fair Labor Standards Act (“FLSA” or “Act”) on September 24, 2019.  They set new and higher thresholds for both the minimum weekly equivalent salary level and the total minimum annual compensation level for “highly compensated employees” (“HCE’s”).  These new salary and annual compensation minimums affect most employees eligible for the White Collar exemptions from the Act’s minimum wage and overtime requirements.   Generally, employees eligible for these exemptions perform any one or more of…
Have you ever intently followed legislation that you supported—an education bill, for instance—only to find out that another education-related proposal you didn’t like had been added to the bill as an amendment.  While this can be frustrating to the observing citizen, it certainly is not unusual and most often is appropriate under the Missouri state constitution.  That was the subject of the Missouri Supreme Court’s recent combined opinion in Calzone v. Interim Commnr. of Dep’t of Elem. & Secondary Educ. and Calzone v. Director of Dep’t of Agric., issued October 1, 2019. Applicable Constitutional Provisions The Missouri state constitution prevents…
Employers face a known but largely unquantifiable risk when they give their employees access to their confidential or proprietary information, trade secrets, and customers.  Some ignore these risks, hope for the best, and trust that they have hired only loyal, honest, and honorable workers.  Such employers basically risk the loss of critical assets and the success of their business in the fickle hands of their employees.  The same workers whose personal career experience or that of spouses, relatives, or friends has taught them because of repeated reorganizations and their attendant reductions-in-force to doubt the loyalty of employers. In view of…
Most employers that pay their outside sales representatives on a commission basis do so because of long-established practices, rather than a sound understanding as to how the Fair Labor Standards Act (“FLSA” or “Act”) impacts such a compensation practice.  Generally, the Act requires employers to pay their non-exempt employees compensation at a rate equal or greater than the federal minimum wage and overtime pay if employees work more than 40 hours in the same workweek.  The FLSA, however, includes an exemption from both its minimum wage and overtime obligations for outside sales representatives that satisfy the law’s requirements for the…
Seven in ten Americans use social media, according to the Pew Research Center.  They connect with one another, access content, share information, and entertain themselves through social media.  When the Pew Research Center first surveyed the use of social media in 2005, only five percent of American adults used at least one form of social media.  By 2011, half of all American adults used social media.  Today, 72% of adult Americans interact with some form of social media. In other words, social media has gone mainstream.  It no longer involves a cutting-edge technology.  Thus, for good reason, employers have adapted…
On July 10, 2019, Missouri Governor Mike Parson signed legislation that permits state universities to use public-private partnerships (also known as “P3s”) to deliver projects on their campuses.  Specifically, the law will allow a higher-education institution to enter into “a long-term concession with a private developer to construct, operate, maintain, and finance the project in exchange for annual payments subject to abatement for nonperformance.”[i] Around the nation, public universities have been turning more and more to the private sector to design, build, finance, operate, or maintain various projects.  P3s have allowed state colleges to build, renovate, or maintain student…
The unemployment rate hovered at a 49-year low of 3.6 percent in both April and May of 2019.  Low unemployment typically creates a jobseeker’s market in which workers find plentiful attractive job openings.  On the other side of the equation, however, employers usually have a more difficult time locating highly qualified candidates well-suited to the employer’s workplace culture. Both smart and lawful hiring and recruiting practices have more importance when employers face fewer candidates and more competition to hire them present in a tight labor market.  In such circumstances, employers must think strategically to recruit the best candidates.  Many employers…
SUPREME COURT RULES LAW PROHIBITING REGISTRATION OF IMMORAL OR SCANDALOUS TRADEMARKS IS UNCONSTITUTIONAL Only two years ago, in the case of In re Tam, the Supreme Court unanimously ruled that the federal law (the Lanham Act) that prohibited registration of “disparaging” marks violated the First Amendment’s Free Speech Clause.  This week, in the case of Iancu v. Brunetti, the Court ruled that the provisions of the same law that prohibited registration of “scandalous” and “immoral” marks, was also unconstitutional.  So why is this important? Under the Lanham Act, the Patent and Trademark Office (“PTO”) administers a federal registration system for…
On May 17 , 2019, Governor J.B. Pritzker signed legislation that lifted restrictions for workers suffering from occupational diseases resulting from exposure to toxic substances such as mesothelioma and lung cancer resulting from asbestos exposure for filing civil actions against their former employers. Supported primarily by the plaintiffs’ attorney trial bar, Public Act 101-0006 changes the provisions of the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Disease Act that had imposed a 25 year statute of repose for occupational injury and a setting 3 year statute of limitations for filing such claims. Under the new Act, while maintaining…
The Missouri General Assembly recently passed legislation to expand the cultivation and processing of industrial hemp in Missouri.  Senate Bill 133, passed on May 15, 2019, has been sent to Governor Parson’s desk for his signing. Before we discuss the 2019 legislation, a brief overview of Missouri’s current legal landscape with respect to industrial hemp would be helpful. In 2018, the Missouri legislature passed and the governor signed HB 2034 to provide a legal framework for the re-introduction of industrial hemp to Missouri. Among other things, HB 2034 decriminalized industrial hemp. In other words, industrial hemp (defined as Cannabis sativa…
On May 2, 2019 the United States Patent & Trademark Office (USPTO) issued new guidelines for businesses seeking to obtain registrations for cannabis-related marks.  Any company that is in –  or wants to be in – the CBD, hemp or medical marijuana business and is looking for maximum brand protection, needs to understand the new guidelines. Here are the rules in a nutshell. A.  For any application to register a mark for use with a product derived from “marijuana” (as opposed to legal hemp), the USPTO will refuse the registration.  This includes products such as CBD. B. However, the same prohibition…
1. Abuse of Power Produced the Me Too Movement. In the past three years, many well-known executives and personalities have made headlines because of their unwelcome conduct directed at female associates.  Roger Ailes resigned from Fox News on July 22, 2016 after more than 20 female accused him of sexual harassment, including a lawsuit that produced a $40 million settlement with former anchor Gretchen Carlson.  On April 19, 2017, Fox News fired  Bill O’Reilly several days after the New York Times had reported that either Fox News or Mr. O’Reilly had paid, at least, five women a total of about…