February 2018

SPEECH IS STILL PROTECTED BUT PROTECTIONS ARE NOT ABSOLUTE
Friday, February 16th, 2018

With all the political rancor of late we hear the term "First Amendment" tossed around frequently, but most of the pundits using that term have no idea what "rights" are actually protected, or to what degree.

The First Amendment to the United States Constitution offers legal protection in many areas, such as speech, religion and assembly, and is one of the most difficult amendments to reconcile with the changing population and American culture.

Most people do not understand that the prohibition against restrictions on speech applies only to the government. No government can pass a law that restricts free speech, but that prohibition does not apply to private citizens or corporations.

Accordingly, there is no "free speech" right for the NFL player to take a knee during the playing of the national anthem, and the NFL is free to prohibit such activities.

Private employers are free to prohibit political speeches or protests or other activities on their property and on their time.

Governmental bodies are more constrained on what they can do to limit speech or activities that are deemed to be a form of speech, however they are still allowed to regulate with content neutral rules that set parameters for time, place and manner of speech.

This concept was recently affirmed by the Illinois Supreme Court, when a group of "activists" (some would say trouble makers) decided that the City of Chicago's ordinance that closes public parks after a certain hour did not apply to them.

Members of this organization staged a protest in Grant Park and refused police orders to disperse. After numerous warnings to leave the park the police arrested and cited numerous protesters, who in turn claimed it was unconstitutional to close the park to them.

That case eventually made its way to the Illinois Supreme Court who ruled that closing the parks was a content neutral and reasonable restriction on time, place and manner of speech and was therefore constitutional, and while First Amendment rights are of the utmost importance, there are legitimate limits, and nothing is absolute.

We are a nation of laws and there are many layers of regulation from the federal government to cities and everything in between and just as with the interpretation of the First Amendment, laws and regulations can be a quagmire and difficult to understand.

If you need assistance navigating the regulations that apply to your business, profession or license, the attorneys at our firm offer free initial consultations, and we would be happy to set up an appointment through our toll free number at 888-488-4LAW or via email.

- Dennis Both, Attorney


New Year, New Laws
Friday, February 9th, 2018

Although it is already the beginning of February, it is still the beginning of the new year. This meaning that new laws have come into effect in Illinois. On January 1st, 2018, more than 200 laws took effect thanks to actions by Illinois citizens and activists working with lawmakers. These new laws illustrate improvements, refinements and updates to reflect changing times and needs.

Here is a brief outline of some of the new laws that took effect on January 1st:

Criminal Justice

Seeking more tools to reduce gun violence in Chicago, Emanuel and Chicago police Superintendent Eddie Johnson won approval for a law to increase prison sentences for some people who commit repeat gun crimes. Instead of a range of three to 14 years for some repeat gun crimes, judges would hand out sentences of seven to 14 years under the new law.

  • Defendants accused of murder will no longer be allowedto try to reduce their possible sentences using what's known as the "gay panic" defense - saying their violence was an act of passion after learning a victim was gay. And sexual orientation can't be considered provocation for second-degree murder.
  • Crimes committed at churches, synagogues, mosques and other places of worship can now be tried as hate crimes.
  • Stalking, cyberstalking and sending obscene messages may be considered hate crimes, a change pushed by Attorney General Lisa Madigan to address the growing role technology plays when it comes to attacking victims.
  • People leaving the state prison system will now receive a copy of their birth certificate free of charge.
  • Lawmakers also tackled the state's civil forfeiture law, which allows police and prosecutors to take money, land, vehicles and other propertyfrom those suspected of committing crimes.


Health

  • Illinois 16- and 17-year-olds can now sign up to be organ and tissue donorswhen they receive a driver's license.
  • It will be easier for people who identify as transgender to change the sex designation on their birth certificates. The new law would allow for a change if a medical or mental health professional confirms someone has received "clinically appropriate" treatment.
  • Lawmakers also took steps to push back at potential health care changes on the federal level. That includes barring health insurance companies from denying coverage for people with pre-existing conditionsand preventing employers from penalizing workers who refuse to disclose genetic informationor participate in wellness programs.


Consumer Measures

  • Customers will be able to post company and product reviews online without fear of retribution under a measure aimed at protecting the "right to Yelp."
  • A change pushed by state Treasurer Michael Frerichswill require life insurance companies to inform families if they are owed benefits from policies that date to 2000.
  • Hair salons, barbers, dry cleaners and tailors will be required to provide customers with a price listfor services upon request.


Schools

  • Preschool and early childhood education programs can no longer expel students, but rather must find programs and services to help them resolve problems standing in the way of schooling.
  • Public schools would have to provide a designated space for students to breastfeedand provide feminine hygiene products at no cost, in an attempt to prevent students from missing school.


Other New Laws

  • Pet owners will be allowed to create custody plans for pets as part of divorce agreements
  • Illinois will now recognize Aug. 4 as Barack Obama Day, though state workers won't get time off to honor the former president.

http://www.chicagotribune.com/news/local/politics/ct-met-2018-new-laws-illinois-20171219-story.html

- Kendall E. Hodges, Attorney


When You Want to Stick Together, But the Court Says "Go it Alone."
Friday, February 2nd, 2018

In October, I wrote in this blog about the use of so-called Class Action lawsuits, wherein multiple injured parties band together to seek relief. They are especially useful when the amounts of individual damages may not be high enough to merit legal action on their own, but collectively amount to significant wrongdoing. On January 30th, the Federal District Court for the Northern District of Illinois handed down a reminder that, despite the usefulness of such consolidation, there are rules and restrictions as to how classes can come together. In the matter of Abraham v. Group O, Inc., the Judge ruled that the 76 plaintiffs in the case must proceed in separate actions for several reasons.

The actual facts of the lawsuit concern the Fair Labor Standards Act ("FLSA"), which regulates minimum wage, overtime pay, and other hourly wage rules at a Federal level. The plaintiffs each worked as temporary employers, through the staffing agency Group O, Inc., at the Caterpillar plant in Joliet, Illinois. They allege that they were forced to work unpaid through lunch hours and that they, due to the timekeeping system's automatic "rounding off" 15 minutes at the beginning and end of each shift, were systematically underpaid for the actual work they were performing.

These circumstances led the workers to file several separate lawsuits alleging violations of various labor law stretching back to 2013. The current class action, however, was filed pursuant to Federal Rules of Civil Procedure 20 and 21. Rule 20 itself is actually pretty straightforward. It permits people to join their claims when "they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences" and "any question of law or fact common to all plaintiffs will arise in the action." Of course, there's a lot of disagreement about the specific meaning of all that. Thus, Rule 21 allows judges to cut out parties who don't meet the requirements, or to "sever" them from the lawsuit.

In this case, the judge decided to essentially sever everyone except Mr. Abraham. He did so for several reasons, mostly pointing to the very different circumstances of each worker. They were employed by Group O, Inc. over a time period stretching from 2004 to 2016, worked in at least 27 different actual job positions ranging from clerical positions to forklift operators to actual supervisor roles, and altogether held jobs that required various distinct levels of responsibility. Basically, the Judge argued, the violations alleged by the class members did not really stem from the same series of transactions and occurrences.

If that seems overly harsh, part of the skepticism of the judge in this case does stem from the particular history of these claims themselves. The 2013 case on the matter, Creal v. Group O, Inc., brought a collective action under the enforcement auspices of FLSA itself under 29 U.S.C. § 216(b). The judge in that case found the many claims too dissimilar for much the same reasons as cited above and kicked the other part members out of that case as well. If the current judge was on the fence, he might have leaned towards severing the cases so as to prevent the workers from getting a "second bite of the apple" as to class action.

- Travis J. Dunn, Attorney