Owners of businesses that are insolvent, regardless of whether the insolvency is determined using the balance sheet test (meaning their liabilities exceed their assets) or because they are unable to pay their debts as they come due, need to act responsibly to prevent creditors from imposing personal liability for business debts. Once a business is insolvent, the owners have a fiduciary duty to act in the best interest of their creditors to either turn the business around and make it profitable or to shut it down to prevent a deepening insolvency on the backs of the creditors.

On March 18, 2015, the Office of the General Counsel for the National Labor Relations Board (the NLRB is the federal agency tasked with enforcing the National Labor Relations Act (NLRA), which, generally speaking, protects employees’ right to discuss the terms and conditions of their work and to organize unions), issued a detailed memo concerning certain common employment policies that it considers overly broad and potentially illegal. The following are examples of the types of policies addressed in the memo:

Your website is your organization’s face to the world. Too often, the website is taken for granted and some things can fall through the cracks. We recommend a “website checkup” at least once a year.

A client consulted Golan & Christie Partner, Andrew Williams, concerning a problem with its 401(k) plan. The plan, which had been amended by the financial institution providing services to the plan, mistakenly added a fixed rate of employer matching contributions, although the plan had previously contained a discretionary formula. The discretionary formula allowed the employer to determine the match (including the discretion to make no matching contribution) on a year-by-year basis. Unaware of the change, after the amendment, the employer elected to make no matching contributions as a result of declining revenues during a period of sluggish economic growth. A routine private audit of the plan disclosed the employer’s liability to fund the matching contribution at the higher fixed rate, in an amount of more than $200,000.

Golan and Christie is excited to support its clients recently nominated for the 2015 Moxie Awards. The Moxie Awards, presented by Built in Chicago, recognize Chicago’s most innovative digital entrepreneurs. Winners will be announced on June 11, 2015. Congratulations to the nominees!

• Chapter 11 As A Remedy For Businesses In Financial Crisis
• NLRB’s General Counsel Issues Guidelines For Employee Handbooks
• Your Website Needs A Checkup
• Google Announces A Marketplace To Buy And Sell Patents
• Golan & Christie Partner Convinces IRS To Approve Unusual Voluntary Compliance Program Proposal
• Golan & Christie Opens New Location In Northbrook
• Congratulations To Golan & Christie’s Clients!

Baby Boomers currently own 66 percent of all private businesses that have employees. Those Baby Boomers are now reaching retirement age at a rate of 10,000 per day. An estimated $10 trillion — that’s trillion with a “t” — worth of businesses will change hands in the next 10 years. For Baby Boomer entrepreneurs with no inheritance option (due to the fact that Boomers had fewer children than their parents), succession and the associated liquidity needs require a solution.

We are very pleased to announce that Golan & Christie attorneys have been named to the prestigious list of “Super Lawyers” and “Leading Lawyers.”

As of January 1, 2015, the Occupational Safety & Health Administration (“OSHA”) has updated requirements regarding an employer’s responsibility to report any workplace injuries or deaths. While serious workplace injuries are rare, it is important that all employers are aware of their responsibilities under OSHA, should tragedy occur.

In December 2014, the Illinois Supreme Court issued a decision that narrows the burden on employers who are trying to defend against a claim of retaliatory discharge tort claims. The holding in Michael v. Precision Alliance Group, LLC, 2014 IL 117376 was that an employer is not required to provide a reason for an at-will employee’s discharge when facing a retaliatory discharge claim, but if an employer does provide a reason, and the judge or jury believes that reason, the employee’s case is over because the causation element of a retaliatory discharge claim cannot be met.

In January 2015, the Supreme Court of the United States (SCOTUS) decided two cases involving who decides issues in Intellectual Property cases.

• ESOPs: The Ultimate Succession Solution
• G&C Attorneys Earn Spots on 2015 Illinois Super Lawyers List and 2015 Leading Lawyers List
• New OSHA Regulations Impose Immediate Reporting Obligations
• Illinois Supreme Court Sides With Employers In Defeating Alleged 'Whistleblower' Claim
• IP Law Alerts - Report On The U.S. Supreme Court’s Busy Intellectual Property Docket
• Golan & Christie Welcomes New Attorney

There is a noticeable increase in news reports about individuals who take advantage of elderly persons with whom they have a trusted relationship. In many cases, these individuals are caregivers who have developed a close, almost familial relationship. The situation can be complicated if the elderly person has a diminished ability to understand the motivation of the trusted individual.

Admit it: Your company, as a 401(k) sponsor, and the company decision makers who direct plan operations (including in-house trustees), are ERISA fiduciaries. Don’t quibble about this but take a step back and figure out what to do about it.

Starting on January 1, 2015, Illinois employers and staffing agencies are no longer allowed to ask any question about an applicant’s criminal history until after an interview or conditional job offer has been made. The “Job Opportunities for Qualified Applicants Act” (otherwise known as “Ban the Box”) provides steep monetary penalties for any violations. If the job application your company currently uses asks whether an applicant has any criminal convictions, this language must be removed no later than January 1, 2015. Please contact Golan & Christie if you would like assistance in updating your company’s application forms.

In the July/August 2014 issue of Inc. Magazine, business owners were given a stern warning that any company with a social media policy that hasn’t been updated in the last 18 months is probably violating the law. The ongoing mission of today’s National Labor Relations Board (NLRB) seems to be finding and penalizing companies whose social media restrictions go too far.

In Alice Corp. v. CLS Bank International, SCOTUS affirmed a Federal Circuit decision invaliding a patent for using a computer to execute a well-established method of settling investment trades. Justice Thomas, writing for the Court, said that “merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.” The plaintiff in the case, Alice Corp., is a non-practicing entity (also known as a “Patent Troll” because they use their patents to accuse others of patent infringement for large settlements or long-term licensing deals). Some commentators are praising the decision as bringing clarity to the gray areas in patent law that Patent Trolls use to intimidate businesses into paying them for licenses. Those in the software industry are concerned that the decision will stifle innovation.

Join ABI in the Windy City this fall for the Seventh Annual Chicago Consumer Bankruptcy Conference! This day-long educational program, devoted entirely to consumer bankruptcy professionals, will focus on current issues affecting debtors and creditors in consumer cases.

• New Illinois Caregiver Law
• What is a 401(k) Fiduciary to Do?
• New Illinois 'Ban The Box' Law goes Into Effect January 1
• Social Media Policies Continue to Make Headlines
• U.S. Supreme Court Decision Puts Software Patents In Jepordy
• Even Established Trademarks Can Evoke The Wrong Message
• Agence France-Presse And Getty Images Liable For Copywright
• False Positive Reviews Are Just As Bad As False Negative Reviews
• Best Practices in Client Advocay: From Beginning to Bitter End

Before becoming an attorney, I spent several years intimately involved in running my family’s marketing and advertising business. On many occasions we found ourselves with upset clients, annoyed vendors, disgruntled employees and unsuccessful business relationships and some of these disputes led to lawsuits. There was no greater source of anxiety than carrying the weight of threatened or pending litigation.

In recent years, the number of sexual misconduct and abuse claims against colleges and universities, religious institutions and other organizations that regularly interact with minors, including summer camps and country clubs, have become more frequent and high-profile. In addition to the horrible impact on the victims of such abuse, the institution where the abuse occurred can have significant liability.

President Obama announced two executive orders which will have a significant impact on any employer who is a federal contractor. The first, which goes into effect on January 1, 2015, raised the minimum wage for federal contractors to $10.10 per hour. The current federal minimum wage for all other employers is $7.25, unless the applicable state minimum wage is higher (the minimum set by individual states varies, with Illinois currently at $8.25 and the District of Columbia, the country’s highest, currently at $9.50).

Employers in Illinois will have to comply with a new law, starting January 1, 2015. The recently passed amendment to the Illinois Human Rights Act provides that it is a civil rights violation for an employer to refuse to provide reasonable accommodations for an employee that are based on pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider. The term “reasonable accommodations” means actions which would enable an employee to perform the activities involved in her job and may include providing light duty work, acquisition or modification of equipment, job restructuring, more frequent breaks or a modified work schedule. The law provides an exception to the reasonable accommodations if the employer can show that it would impose an undue hardship on the business.