April 2019

Scott's Law

Friday, April 19, 2019

If you live in Illinois, you have heard of the recent Illinois State Police officers being struck and killed on the side of the road while conducting stops. Already in 2019, 16 Illinois State Police troopers have been struck by vehicles or died on state roads, doubling the total from all of last year in just four months. In response, state officials are hoping to better educate young drivers about Illinois' ">
Illinois' "move over" law is called Scott's Law. The law is named after Lt. Scott Gillen, a 14-year veteran of the Chicago Fire Department who was struck and killed by an intoxicated driver while assisting at a crash on the Dan Ryan Expressway in December 2000. He was 37 years old. After his death, Gillen's family pushed for the passage of Scott's Law to help protect emergency responders on accident scenes. Scott's Law mandates that drivers, upon approaching any stationary vehicle with flashing emergency lights, must reduce their speed, proceed with caution and change lanes if possible.

State officials along with the State Police and Illinois State Board of Education are making attempts to educate drivers about the "move over" law. Last week, the Illinois Senate unanimously agreed to add two reminders about Scott's Law to the state's drive pool. State Sen. Chapin Rose wants to send drivers a reminder about the law to move over for police officers with their lice plate renewal postcard. He also wants the Illinois Secretary of State to include a question about the law on the state's driver's test.

In addition, the State Police and Illinois State Board of Education have collaborated on a new flyer that is being distributed to driver education programs in Illinois to help spread awareness of Scott's Law.

Sources: WTTW, Illinois News Network

- Attorney Kendall Hodges


Charting a Course for Open Discourse

An Alderman in Evanston was recently found to have violated the Illinois Open Meetings Act (5 ILCS 120/1) when she restricted the 19 attendees at a public meeting last year to 1 minute of speaking time each. Following the meeting, a resident of Evanston who had attended filed a request for review with the Illinois Attorney General’s office. In her request, she claimed that "[r]esidents were taken by surprise with such a short time allotment and most were not able to deliver [their] full messages." In its investigation, the attorney general assigned significance to the fact that the city’s rules provided for 45 minutes of public comment at such a meeting and there seemed to be no compelling reason why such rule was not followed given that there were only 19 residents who had signed up to speak. The attorney general’s determination hinged on its finding that the alderman’s actions "unreasonably restricted public comment."

The attorney general’s finding that a violation occurred in the above instance shines a light on the Illinois Open Meetings Act and its intended purpose. If you’ve never attended a local or state government meeting, or even if you have, you may be unaware of the law and what rights it’s meant to protect. The Illinois Attorney General describes the Illinois Open Meetings Act as "designed to ensure that the public has access to information about government and its decision-making process." In publications available online, the attorney general further explains that the Act "requires that meetings of public bodies be open to the public except in certain specific, limited situations … where the law authorizes the public body to close a meeting." Additionally, "the public must be given advance notice of the time, place and subject matter of the meetings of public bodies.

To fully understand the Act and its implications, it’s necessary to unpack some of the terms above. For example, a "public body" subject to the Act includes "all legislative, executive, administrative or advisory bodies of … the State, counties, townships, cities, villages, or incorporated towns, school districts and all municipal corporations." But what kind of "meeting" does the Act cover? The attorney general defines such "meeting" as "a gathering of a majority of a quorum of the members of a public body for the purpose of discussing public business." The attorney general elaborates that "[f]or example, for a 7-member board with a quorum of 4, a majority of the quorum would be 3." As far as "notice" of such meeting, "[n]otice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held."

Other notable provisions in the Act include the right of members of the public to "record the meeting by tape, film, or other means, subject to some reasonable restrictions" and the requirement that the public body take minutes of its meetings. In light of recent violations and a growing trend toward transparency in government, it’s more important than ever that members of the public and government officials alike are aware of such legislation as the Illinois Open Meetings Act and its practical implementation.

Sources: Illinois Attorney General; Patch.com

- Attorney Ryan Zaborowski


Arbitration: Correct Arbiters or Contractual Arbitrariness?

Friday, April 12, 2019

Since it's passage in 2008, the Biometric Information Privacy Act has regulated the collection, use, safeguarding handling, storage, retention and destruction of biometric data in the state of Illinois; "Biometric data" for the purpose of the act including things such as retina and iris scans, fingerprints, voiceprints and face scans. The Act has some fairly high potential penalties for violators, as the law sets out penalties of $1,000.00-5,000.00 per violation. It's somewhat of an open question as to what, exactly, constitutes separate violations, and as a result, business facing suits based on the law can get pretty desperate to get rid of them.

Which brings us to Liu v. Four Seasons Hotel, Ltd, which is a class action filed by former employees of the hotel chain alleging that the companies' management of their fingerprint-based time clock system failed to comply with the law in several respects, including failing to fully inform the employees of the purpose and length of tie of storage of the data, failing to inform them that the data was shared with third-party vendors, and failed to actually properly destroy the data. Four Seasons tried to get the case thrown out of court and into arbitration, but the Federal First District Appellate in Illinois affirmed a stop to that on Tuesday, ruling that the case could proceed in civil court.

The dispute stemmed from the employment agreement that the employees signed with Four Seasons at the beginning of their employment, an agreement which included an agreement that employment disputes would be ultimately resolved in binding arbitration rather than civil court in a variety of circumstances, most pertinently for this case in situation here the disputes arising out of "wage or hour violation." While it is true that courts favor the enforceability of arbitration clauses, and in fact recent decisions even tends allow arbitration over the scope of arbitration clauses, courts also favor enforcing the clear language of contracts. Four Seasons argued that, since the fingerprinting was solely used for tracking wages and time, then the dispute falls under the arbitration clause concerning wages and time.

The court made short work of this argument, pointing out that the employees weren't claiming that there was an issue with their wages or timekeeping, but rather that Four Seasons had violated a widely-applicable privacy rights statute. Succinctly, it stated that: "Simply because an employer opts to use biometric data, like fingerprints, for timekeeping purposes does not transform a complaint into a wages or hours claim." Liu v. Four Seasons Hotel Ltd., 2019 IL App (1st) 182645. This decision correctly affirms that even if an employee signs an arbitration agreement, such agreements cannot be used to completely cut off plaintiffs from seeking relief in the courts.

- Attorney Travis Dunn