Right to Privacy - Social Networks

Prospective employers would be prohibited from asking job applicants to provide access information (e.g., user name, password) for social media outlets such as Facebook if legislation pending in the Illinois General Assembly becomes law. Maryland has already enacted a law which prohibits that practice, and bills now pending in Springfield would amend the Right to Privacy in the Workplace Act to ban requests for access information to social media. (HB3782, HB 5713).

Disclosure of Mental Health Records 

Some mental health records may now be disclosed without the consent of the patient. Those authorized to disclose without consent are county jails, insurance companies, integrated health systems, State agencies (including the Department of Corrections and the Department of Children and Family Services, to name two). Those authorized to receive the disclosures are hospitals, physicians, therapists, emergency medical personnel (and the members of an “interdisciplinary team“ treating a patient.

Those whose records may be disclosed without consent -- in common parlance: patients -- are “recipients in a program administered or operated by the Department of Healthcare and Family Services or the Department of Human Services.

The records that may be disclosed (and disclosed solely for purposes of treatment and coordination of care) are: services rendered, providers rendering the services, pharmaceuticals prescribed or dispensed, and diagnoses.

All this appears in a new section (section 9.4) added in August of 2011 to the Mental Health and Developmental Disabilities Confidentiality Act. (See PublicAct 097-0515)

 

Tobacco Use Cessation Programs

Insurance coverage for “quit smoking” programs is now mandatory in Illinois by virtue of an amendment to the Illinois Insurance Code that went into effect earlier this year. That is, insurers who provide group accident and health insurance plans must now offer (for additional premium) coverage for the expense of participating in a “tobacco use cessation program.”

Tobacco use is the number one cause of preventable death and disease in Illinois, costing $4.1 billion annually in direct health care costs and another $4.35 billion in lost productivity. (See Public Act 097-0592)

Serving Our Seniors: Living Wills

Narrated by Bill Kurtis

FUNDAMENTAL DO'S AND DON'T'S OF THE HIRING PHASE

The hiring phase is complicated. Here are some of the basics of what may and may not be asked about and required during the hiring process.

Race, Sex, Age, Disability

Inquiries about race, gender, birthplace, religion, marital status and disability are prohibited with these exceptions. It is all right to identify the essential functions of the job and ask how the applicant would perform them, and also to ask whether the spouse of the applicant is an employee of the employer.

It is permissible to ask for the full name of the applicant and whether he or she has ever worked for the company under a different name, but impermssible to ask for a maiden name.

The applicant may be asked how long he or she has lived in the state or the city but not whether he/she owns or rents. The only question that can be asked about age is whether the applicant is at least 18 years old, and then only to determine whether the applicant is of legal age for employment.

A LEGITIMATE BUSINESS INTEREST ON THE PART OF AN EMPLOYER IS A PREREQUISITE FOR ENFORCEMENT OF A COVENANT NOT TO COMPETE AFTER ALL.

An employer who would enforce a covenant not to compete must establish that enforcement is necessary to protect a legitimate business interest. That has been the law in this State for a long time. But there had been some doubt about it since 2009, when the appellate court in Sangamon County held that all that mattered was that the covenant be reasonable in time and area. (Sunbelt Rentals Inc. v. Ehlers, 394 Ill.App.3d 421 (4th Dist. 2009)). The Illinois Supreme Court has just set the record straight about that. (Reliable Fire Equipment Company v. Arredondo et al., Docket No. 111871).

In so doing, the Court announced a totality-of-circumstances doctrine: The enforceability of a covenant not to compete must henceforth be determined on a case by case basis evaluating the totality of circumstances in the given case. The presence or absence of a legitimate business interest had hitherto turned on two questions: One, was there a misuse of confidential information? Two, was there a "near permanent" relationship between the employer and the customer?

The answer to both those questions was "no" when the Reliable Fire case was in the trial court (DuPage County) and the Appellate Court (Second District). So both of those courts refused to enforce the pertinent covenants not to compete.
Why, then, a different result in the Supreme Court? Because the Illinois Supreme Court may ignore its own precedents but our lower courts may not. Although there were no trade secrets and no "near permanent" customer relationships in the case, there was flagrant competition on the part of the defendants: While they were still in the employ of the plaintiff-employer, they were using company time and company resources to sell competing product to their employer's customers for their own account.

Employee or Independent Contractor?

by David McCarthy

As a rule an employer must withhold federal income tax, withhold and pay social security (FICA) and Medicare taxes, and pay unemployment tax (FUTA) on wage paid to an employee; but need not withhold or pay any federal taxes on payments to independent contractors.

The key to distinguishing an employee from an independent contractor is the degree or extent to which the employer has the right to control what will be done and how it will be done.

The price of guessing wrong can be a steep one.

One way to reduce or eliminate the risk is to ask the Internal Revenue Service for a determination. This is done by submitting IRS form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding.