The Wage Act: What is it? Are you in compliance?

Most people are unaware of the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et. seq.  However, this statute is designed to ensure that employees and employers are able to contract for their compensation agreement (including salary, deferred comp, stock options, commissions and even vacation pay).  Any Illinois employee and Illinois employer may be subject to the Wage Act, 820 ILCS 115/1 and 820 ILCS 115/2. 

The Wage Act protects employees by ensuring that they are paid all earned wages at time of separation, including vacation pay (on a pro rata basis) as final compensation at the time of separation from employment.  Herron v. Magna Group, Inc., 272 Ill. App.3d 39, 42-43, 650 N.E.2d 675 (5th Dist. 1995).  The Wage Act also ensures that employers are not required to pay unearned compensation that was not covered by a compensation agreement at the time of separation.  Prettyman Commonwealth Edison Co., 273 Ill.App.3d 1090, 1096, 653 N.E.2d 65, 70 (1st Dist. 1995). 

However, a non-complying employer may have to pay the attorneys fees for an employee making and recovering the amount demanded pursuant to 705 ILCS 225/1 and Anderson v. First Am. Group of Cos., 353 Ill. App. 3d 403, 409-10, 412, (1st. Dist. 2004).  This fee shifting provision means a non-complying employer may end up paying more that what it would have paid, if it acted in accordance with the Wage Act. 

Craigslist a Discriminatory Publisher?

A recent Seventh Circuit Ruling highlights the blending of civil rights, employment, and copyright matters for online publishers.  Recently, there was an attempt to sue craigslists under the Fair Housing Act for permitting posts with “no minorities” or “no children”.  Craigslist was sued under 47 USC 3604 (c) for publishing discriminatory advertisements. 

However, in Chicago Lawyer’s Committe for Civil Rights under Law Inc. v. Craigslist Inc., a majority of the panel stated that Craigslist cannot be treated as a speaker or publisher of content posted by someone else under 230 (c) (1).  The panel stated that just because the message reveals a third party’s plan to engage in unlawful discrimination, it does not mean you can sue the messenger. 

The ruling seems similar to many cases involving allegations of copyright infringement and the notice and take down procedures provided for Internet Service Providers.  The internet continues to blur the lines between what were thought to be two varying areas of law.

Trademark Registration Pros and Cons

Registering a trademark provides many of the same advantages as registering a copyright, however, there are some important differences.  For example, a trademark does not have to be registered to assert a infringement claim.  However, registering a mark helps establish validity, provide notice of your rights to others, provide an additional business asset for sale or financing, increases the strength of the mark, and increases the value of your IP portfolio. 

In addition, intent to use applications allow trademark owners a process to acquire time that can be used to ramp up a potential advertising or branding strategy. However, registering a trademark may tip off a prior user of your potentially infringing use.  In effect, your efforts to obtain trademark rights may lead to some infringement liability and decrease your success of raising an acquiesence, estoppel or laches defense.  

Conducting a prior user search can often help in determining the proper course of action.  However, even with prior user search results a likelihood of confusion analysis should be performed and a trademarkability opinion should be obtained.  Often this can assist in preventing the expenditure of funds towards an unsuccessful advertising or branding strategy. 

These are just some of the considerations that business owners, entrepreneurs, individuals, small and mid size companies should take into consideration in registering a trademark.