The Chicago City Council recently passed the Fair Workweek Ordinance, the most sweeping “predictive scheduling” ordinance in the country. The Fair Workweek Ordinance aims to give hourly workers more predictable schedules and stable paychecks by mandating that employers give workers early notice of their schedules or face financial penalties if they change shifts unexpectedly. Additionally, the Ordinance requires employers needing to fill additional shifts to first offer those hours to covered employees.

Beginning July 1, 2020, employers in specific industries are required under the Ordinance to post employee work schedules at least 10 days in advance of their scheduled shifts; the deadline for advanced notice increases to 14 days on July 1, 2022. The Ordinance grants employees the right to decline any previously unscheduled hours the employer adds to their schedule after the deadline for advance notice. Employees are also entitled to one hour of “predictability pay” (in addition to their regular compensation) if the employer changes their shift, adds hours of work, or cancels/reduces their shift with more than 24 hours’ notice. If a shift is canceled or reduced with less than 24 hours’ notice, employees must receive at least 50% of their pay for any scheduled hours not worked. An employer can avoid paying “predictability pay” if the employee mutually agrees to a proposed schedule change in writing.

Employers covered under the Ordinance are those that (1) globally employ 100 or more employees (250 or more for not-for-profits), 50 of whom are covered employees, and (2) are “primarily engaged” in one of the following industries: building services, healthcare, hotels, manufacturing, retail, and warehouse services. Restaurants with 30 locations and at least 250 employees globally are also covered employers, unless the restaurant is a sole franchise with three or less Chicago locations. Covered employees are employees who work primarily within Chicago city limits and earn less than $26 per hour (or $50,000 in annual salary).

Employers that violate the Ordinance are subject to a $300 to $500 fine; however, each employee whose rights are affected constitutes a separate and distinct offense. Employers who retaliate against an employee for exercising his/her rights under the Ordinance are subject to a $1,000 fine.

Illinois has also passed a new law, which goes into effect on January 1, 2020, aimed at employers who use artificial intelligence during their recruiting process for new hires.

The Artificial Intelligence Video Interview Act applies to employers who ask applicants to record video interviews and then use “artificial intelligence analysis” of that video interview. Though it may sound futuristic and high-tech, some popular HR solutions companies are automating the interview process by offering platforms where applicants record themselves fielding interview questions and AI technology is then used to analyze the video and score their performance. In other words, the technology enables companies to use machines instead of people to conduct initial screening interviews. With this law, Illinois is addressing the obvious privacy concerns with this technology by imposing notice and consent requirements and regulating how the videos are shared and retained.

If you have questions or need additional information, please contact an employment law attorney at Golan Christie Taglia, LLP.

But the United States Patent and Trademark Office (“USPTO”) didn’t quite keep up. The USPTO would routinely reject any trademark it considered scandalous, disparaging, immoral or offensive.

Two plaintiffs decided to challenge the USPTO’s rejections. And they both won before the United States Supreme Court (SCOTUS).

The first case was Matal v. Tam, 137 S.Ct. 1744 (2017). Simon Tam is the founder of and bassist for an Asian American band called The Slants. Slant-eyed or slants are historically racist terms to refer to Asians. Tam named the band The Slants to “reclaim and take ownership of Asian stereotypes.” The USPTO refused to register the trademark because it was disparaging to persons of Asian descent. Tam appealed all the way to SCOTUS and won. SCOTUS held that Tam had a right to use a disparaging term for his band under First Amendment Free Speech. There was a societal basis for choosing the trademark. It helps that the band has a fan base that understands the message of the name while enjoying their music. The band used a disparaging word to name themselves. The opinion did not address the questions of whether one can register a trademark that disparages another. For example, using the name “Redskins” for a sports team.

The companion case is Iancu v. Brunetti, 588 U.S. __, 139 S.Ct. 2294 (2019). Erik Brunetti wanted to register the word “FUCT” as a trademark for wearing apparel. The USPTO refused registration saying it was too “scandalous” because it was “extreme nihilism,” evidence of “anti-social behavior” and “extreme misogyny”. Brunetti appealed to the Trademark Trial and Appeal Board who affirmed the refusal. Brunetti then appealed to the Federal Circuit Court of Appeals who reversed the refusal. The director of the USPTO, Andrei Iancu, appealed to SCOTUS who affirmed the Federal Circuit thus allowing the trademark to proceed to registration.

Justice Elena Kagan, writing for the majority, adopted the reasoning in Matal v. Tam. Like the now-prohibited ban on disparaging trademarks, the USPTO’s ban on scandalous marks was based on the viewpoint of the observer. Justice Kagan stated that the USPTO allows registration for trademarks that are consistent with society’s sense of rectitude and morality. But the USPTO discriminates against trademarks that, in its viewpoint, don’t fit into a standard of morality. The USPTO’s viewpoint analysis is not neutral. Therefore, the prohibition against the registration of scandalous trademarks is an unconstitutional violation of First Amendment Free Speech. Brunetti’s trademark projects a certain sensibility; one that Brunetti obviously believes his customers share.

To some degree, SCOTUS appears to side with George Carlin when it comes to questioning bans on certain words. However, neither opinion discussed the market impact of adopting a scandalous, offensive or disparaging trademark. Trademarks that don’t fit into societal norms may be fun, interesting and good marketing tools. But, a trademark reflects the values of the owner of the products or services. So when choosing a trademark, know your customer base and be careful about the impression your trademark makes.

If you have questions or need additional information, please contact an intellectual property attorney at Golan Christie Taglia, LLP.

DAVID M. SALTIEL was named Best Lawyers’ 2020 Lawyer of the Year in the practice area of Entertainment Law—Motion Pictures and Television in Chicago. This is the third time that David has been recognized as Lawyer of the Year.

Our commitment to service extends into our communities, as well. GCT attorneys serve on a wide range of charitable organization boards and volunteer time and resources to many worthy causes. During KATHERINE M. OSWALD’s term as a Chicago Bar Association (CBA) Young Lawyers Section (YLS) executive board member, the CBA YLS received Awards of Achievement from the American Bar Association in six categories.

Golan Christie Taglia is pleased to announce a new addition to our extended family: Joseph Stephen Ballard was born on Tuesday, October 15 at 12:22 am. He weighed in at 6 lbs 3 oz and 22 inches. Joseph is the first child of GCT attorney Brianna Golan and her husband Brian Ballard. We wish the Golan and Ballard families much health and happiness.

CHALLENGE: A couple was contemplating selling their family business, and were feeling overwhelmed with how best to ensure that the sale resulted in the greatest value possible for their children. GCT needed to structure a sales package that worked in conjunction with the specific estate/tax planning needs that the family required be put into place.

STRATEGY: Many GCT attorneys have owned or led businesses and hold MBAs or CPAs themselves, so are able to effectively act as financial and business advisors in addition to providing legal counsel. By combining invaluable first-hand business experience with in-depth knowledge of commercial real estate and estate planning laws, the GCT team was able to play an active and crucial role in consulting and coordinating with private equity firms and accounting firms to help guide this client every step of the way. This approach ensured that informed, smart business decisions were implemented throughout the process and the resulting sales package was designed to successfully meet all the family’s complex needs and goals.

RESULTS: The sales contract and estate planning strategies GCT created resulted in millions of dollars saved in tax liability for the client and nearly full value of the business realized for the children.