Continuation of Health Insurance Coverage in IL?

Continuation of Health Insurance Coverage by IL  may seem unnecessary, but it is required under Illinois Continuation laws.  The Illinois Continuation laws apply to employers or companies of any size and provides for the following:

1) spousal and dependent continuation of health insurance coverage;

2) written notice to the employee of his or her right to elect Illinois Continuation Health Coverage;

3) the employee bears a 100% of the premiums costs for electing the coverage;

4) the employee must elect the coverage within 60 days of the date his or her employment was terminated;

5) benefits for hospital, surgical or major medical are the same as that under the previous group coverage; and

6) the Illinois Continuation coverage lasts for nine months from the date of termination or separation of employment. 

If you have any questions regarding the requirements for Continuation of Health Insurance Coverage in IL, then please feel free to contact us.

When is an Employer required to provide a Reasonable Accommodation to disabled employees?

In the legal world, a Reasonable Accommodation is not a stay at a five star hotel or resort.  Instead these terms, refer to the balance that courts attempt to strike between a disabled employee’s rights and an employer’s duty to accommodate the employee. 

Typically, the employer or Company does not have to provide a Reasonable Accommodation under the American’s with Disabilities Act (ADA), unless the employee asks for the accommodation or the employer knows of the disability.  Hedberg v. Indiana Bell Tel. Co. Inc., 47 F.3d 928, 934 (7th Cir. 1995).  

In order for the employer’s obligation to accommodate to be triggered, without the employee’s request, the symptoms of the disability must be obvious enough to reasonably infer that the employer actually knew about the disability.  Hedberg,  47 F.3d 928, 934 (7th Cir. 1995) and Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000). 

However, this inquiry is often very fact specific, and courts will make a case by case determination about whether or not the employer or Company, had a duty to provide a Reasonable Accommodation to its disabled employees.   

Hedberg  and Jovanovic

A new test for determining Employee v. Independent Contractor Status?

A recent DC Appellate Circuit Court decision may create a new twist on the factors used to determine whether or not an individual is an employee or an independent contractor.  The DC Circuit Court of Appeals recently focused on the degree to which FedEx delivery drivers had the “opportunity and functioned as an entrepreneur”, instead of the traditional focus on the “right to control.” 

Although this decision involved classification of individuals for purposes of determining their rights to bargain as a Union with FedEx, the test and factors discussed are the common law factors used by courts to determine the employment status of an individual. 

The new standard resulted in FedEx delivery drivers being classified as independent contractors.  The DC court also focused on the following: 1) the drivers had their own vehicles; 2) the drivers could use the vehicles for personal or other commercial purposes; 3) the drivers were not subject to disciplinary actions; 4) the drivers signed independent contractor agreements; and 5) the drivers were responsible for the costs of operating and maintaining their vehicles. 

Of course, it is not clear if IL courts will follow this line of reasoning, but it does provide another way for business owners, entrepreneurs and companies to structure relationships with individuals and justify the classification.  Also, individuals need to be aware of the ruling to recognize the potential for greater enforceability of such an independent contractor agreement; otherwise, individuals may be unable to get out of such an arrangement.    

See. FedEx Home Delivery v. NLRB, 07-1931 (D.C. Cir. Apr. 21, 2009). 

The Safe Harbor for ISPs. What is it?

The safe harbor is not a tranquil body of water, but a section in the Digital Millennium Copyright Act (DMCA) that protects Internet Service Providers (ISPs).  The ISP is an entity offering transmission, routing or providing connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.  512 (A)

Or, an ISP is a provider of online services or network access or the operator of such facilities. 512 (B).  The ISP is immune from liability for monetary, injunctive or equitable relief for copyright infringement for storage of such material at direction of user on its systems.  512 (c).  However, the ISP must meet the following elements to acquire such immunity:

1) not have actual knowledge that the material or an activity using the material on the network is infringing;

2) is not aware of circumstances or facts from which the infringing activity is apparent; or

3) upon acquiring such knowledge or awareness, removes or disables access to the material;

4) does not receive a financial benefit directly attributable to the infringing activity, where the ISP has the right and ability to control such activity; and

5)    upon notice of claimed infringement responds expeditiously to remove or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Website Immunity for Defamation under the CDA!

The Communications Decency Act (CDA) of 1996, is still alive and protects many internet service providers (ISPs) and website hosts from liability for statements and actions made by others using their services.  The goal is to promote the free exchange of information and ideas over the internet.

Many individuals have received information or posts from individuals that defame or paint them in a bad light.  Sometimes there is false or misleading information that is posted on a website are the basis of tort, contract and intellectual property claims against the ISP or website host. 

The CDA shields these individuals from liability, because they are not considered the speaker.  Moreover, they are shielded from liability if they act in good faith and restrict access to false or misleading information.   Most of the cases dealing with these issues have been in the defamation context, but there is some crossover with contract and intellectual property matters. 

The ISP and the website host is immune as long as they are not the author or creator of the post or statement.  In other words, they are just a means of commnication.  It remains to be seen how the CDA, particularly, section 230, will be interpreted in the context of an breach of contract or violation of intellectual property rights claims.

On-line Auction Sites and Trademark Infringement!

On-line auction sites have become a popular method for selling, buying or bidding for many consumer items.  This raises questions about the sale of counterfeit or infringing goods being provided by anonymous sellers via on-line auction sites.  Often the on-line auction site is sued for direct and contributory trademark infringement. 

However, this raises concerns about shutting down an entire on-line auction site due to a few bad actors or anonymous sellers.  In Tiffany v. E-bay, the court dealt with this scenario and found that E-bay was not liable to Tiffany on its claims of direct trademark infringement, contributory trademark infringement, dilution, unfair competition or false advertising. 

The Court focused on E-bay’s extensive policies for investigating, reporting and removal of infringing or counterfeit goods from its sites.  The Court also went to on to find that the sale of actual Tiffany goods was protected under the nominative fair use defense.  Thus, on-line auctions sites were protected assuming they met their affirmative duty to police the sale of infringing and counterfeit goods. 

This ruling will provide for an increase in the number of on-line auction sites and allow for numerous resell opportunities.  Whether you are the trademark owner, a consumer or an on-line auctioneer, understanding trademark law and how it impacts your business practices or purchasing behavior is crucial to avoiding liability for trademark infringement. 

If you have any concerns or questions regarding these matters, then please feel free to contact us.

Back to the Basics: What is a Copyright?

A copyright is an often overlooked area of intellectual property law.  Most business owners, individuals, entrepreneurs and small/mid-size companies know that patents and trademark can help increase their number of assets, develop licensing royalties, increase market share, block competitors and a variety of similar business objectives.

However, most business owners, individuals and small/mid-size companies fail to realize that a copyright can help in many of the same ways.  Under 35 USC 106, a copyright grants the author or owner the following: a) the right to reproduce; b) prepare derivative works; c) the right to distribute works; d) the right to perform the work publicly; and d) the right to publicly display the work.

Moreover, owning a copyright is distinct from having a tangible copy of the work.  A copyright can be licensed or transferred in a similar manner to patents or trademark.  A individual, business owner, entrepreneur, small or mid-size company can acquire and register a copyright in a book, song, video, a play, business process manual, a photograph, a logo, a website, computer software, a movie and a variety of other similar works of authorship. 

Upon registering a copyright, you can sue for copyright infringement in federal court, get statutory damages and get attorneys fees for the lawsuit.  To learn more about how copyright law can help you achieve your business objectives please feel free to contact our office.

Registration of Music with the U.S. Copyright Office.

Musical compositions or songs can be registered with the U.S. Copyright Office.  Under 35 U.S.C. 102 (a) (2) musical works, including accompanying works may be registered for copyright protection.  However, as soon as the work is fixed (sheet music, written lyrics, video, cd or dvd format) the work is entitled to copyright protection. 

Registering provides the following: 1) benefit of notice to others of your registration; 2) the right to sue in Federal Court under the U.S. Copyright Act; 3) statutory damages; and 4) attorney’s fees for an infringement law suit.  The key to properly registering a musical work  is to comply with the deposit requirement.  The U.S. Copyright Office will utilize the “best edition” of the musical composition for registration purposes. 

The “best edition” for printed copies is determined based on the following: 1) fullness of score ( including vocal music, orchestral accompaniment, instrumental music, etc…); 2) printing and paper; and 3) binding and packaging (special editions, bound rather than unbound, protective folders, etc…). 

The “best edition” for phonorecords is determined based on the following: 1) cd rather than vinyl; 2) vinyl rather than tape; 3) special enclosures; 4) open reel rather than cartridge; 4) cartridge rather than cassette; etc… The deposit requirement is key to determining the copyrighted material and the scope of the registered copyright. 

See Attached Publication from the U.S. Copyright Office: Musical Works Brochure

If you have any questions relating to registering your musical works, then please feel free to contact us.

Proposed Local Rules for Patent Cases in the Northern District Court of Illinois!

On March 19, 2009 the full court met and approved local rules for patent infringement cases for the Northern District Court of Illinois.  These local rules are designed to stream line the patent litigation process to help reduce costs, fees and the time it takes to get to a jury trial. 

Currently, the average time to get to a jury trial is about 4.7 years.  However, the proposed local rules hope to cut this time down to about 2 years.  The local rules require an Answer to a Complaint within 7 weeks and build in a one time extension of 28 days to Answer or otherwise plead.  The local rules require initial disclosures similar to 26.1 (a) (1), but are particularized for patent litigation.

The rules set a deadline to get to final contentions regarding infringement, non-infringement, and invalidity.   In addition, the rules provide a schedule for claim construction or markman briefs and hearing.  After the court’s claim construction or markman ruling, the rules permit an additional 42 days to conduct fact discovery.  

Upon completion of fact discovery the rules set deadlines for expert discovery, dispositive motions and the trial is supposed to take place within 23 months from the date the Complaint was filed.  (See rules below for specific deadlines or time periods).  The proposed rules were a collaborative effort by the local bar and judges to make the practice of patent litigation more efficient. 

Through the hard work of many lawyers and judges these rules do not seem to  favor either Plaintiffs or Defendants.  This is not the rocket docket, but a balancing of interests to provide an efficient litigation process.  However, it remains to be seen how the local rules will be adopted or modified for counter-claim or third party practice. 

Attached is a copy of the local rules for patent infringement claims in the Northern District of Illinois for your consideration:   Proposed Local Rules for Patent Cases

Employment Discrimination Damages: Back pay, Front pay, and Lost Future Earnings.

Many employers and employees do not understand the types of damages or remedies that are available for employment discrimination claims (”ED claims”).  ED claims are different from ordinary contract or tort claims in that they do not provide the typical compensatory damages. 

For example, under the Age Discrimination in Employment Act (ADEA), compensatory damages are not available, unless there is a retaliation claim.  Pfeifer v. Essex Wire Corp., 682 F.2d 684, 685-688 (7th Cir. 1982) and Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 283-84, (7th Cir. 1993).  However, under Title VII of the Civil Rights Act of 1964, employees that are able to establish discrimination based on race, religion, national origin, sexual orientation, or sexual harassment may recover compensatory damages in the form of back pay, front pay and lost future earnings.  Pals v. Schpel Buick & GMC Truck, Inc., 220 F.3d 495, 499-501, (7th Cir. 2000) and Hildenbrandt v. Illinois Dep’t of Natural Resources, 347 F.3d 1014, 1031 (7th Cir. 2003). 

However, back pay, front pay and lost future earnings are equitable remedies that are determined by a judge, instead of a jury.  Pals, 220 F.3d 495, 499-501, (7th Cir. 2000) and Hildenbrandt, 347 F.3d 1014, 1031 (7th Cir. 2003).  Moreover, front pay and lost future earnings are different, because lost future earnings compensate employees for diminishment in future earnings based on an injury to their reputation instead of future salary or wages they could have obtained from the discriminatory employer.  Williams v. Pharmacia Inc., 137 F.3d 944, 953-54, (7th Cir. 1998). 

In addition, there are caps on damage awards and employees have a duty to mitigate their damages.  Understanding the types of remedies and how they are awarded is crucial to litigating and negotiating ED claims.  If you have any concerns or questions regarding litigating or negotiating employment ED claims, then please feel free to contact us.

See Attached Cases: hildenbrandt; pals; and pfieffer.