Theresa Bresnahan-Coleman Interviewed for an Illinois Chamber of Commerce Article on Employer Initiatives
Theresa Bresnahan-Coleman was recently interviewed for an article published by the Illinois Chamber of Commerce regarding how the 2016 election results will affect Illinois businesses. Theresa provided her thoughts about employment discrimination initiatives. You can read the entire article published in the Illinois Business Leader, including Theresa’s contribution, by clicking here.
LGLJ recently participated in an Illinois Chamber of Commerce Employment Law & Litigation Committee meeting that included representatives from the Illinois Department of Human Rights and Human Rights Commission. The meeting included a discussion of recent state legislative and agency initiatives. Here are some of the highlights from the discussion:
Dual Employment Discrimination Investigations
Employers often find themselves defending against the same allegations of employment discrimination filed in multiple forums, such as federal court and the Department of Human Rights. The current language of the Illinois Human Rights Act allows the Department to administratively close such dual-filed charges, but does not require them to do so. A bill introduced in the state Senate in spring 2016 to circumvent this problem passed that chamber unanimously, but has stalled in the state House of Representatives. If the bill passes, the law would require that the Department administratively close all charges that have been filed with the Department where there is already litigation pending in state or federal court which would result in a final decision on the merits. For example, if a complainant files a lawsuit against an employer in federal court alleging age discrimination under federal law, the Department would not continue to investigate the same allegations under the Illinois Human Rights Act. The Department will work with municipalities that have their own employment discrimination law to eradicate the forum selection problem that exists with those local government units.
Mediation at the Department of Human Rights
Currently, the Department offers mediation to parties after a charge is filed. If the charge fails to resolve at mediation, it is sent to investigation for processing. On December 1, 2016, the Department will implement a “beefed up” mediation program, offering multiple opportunities to resolve a charge. In addition to mediation after a charge is filed, the Department will offer mediation to parties right before a finding of substantial evidence of discrimination is issued. The Department will also offer opportunities for mediation or conciliation after a finding of substantial evidence, but before the charge is proceeds to the Human Rights Commission as either a complaint or a request for review. The Department is hopeful that this more robust mediation program will reduce the number of cases that proceed to the Commission, where there is a significant backlog of charges. The most significant cause of the backlog is requests for reviews, which can take 6 to 10 years to complete.
Streamlining Charge Processing
The Department acknowledged that certain aspects of its initial intake and processing of a charge could be candidates for streamlining. Department officials agreed that it could be prudent to consider whether the 60-day deadline to file a verified response after a charge has been filed can be extended if the parties elect mediation. The questionnaire issued to parties, on the other hand, is important for the Department’s agreement with the EEOC to investigate charges and needs to be completed when issued. Importantly, the Department stressed the need to educate state legislators on what the Department and Human Rights Commission do, as this will help the Department and the Commission obtain necessary resources for conducting investigations and processing requests for review. In light of the Illinois statutory requirement that each charge filed receive a “full investigation” before a complainant can file a lawsuit alleging a violation of the Human Rights Act, the Department is wary of taking any steps which may violate complainants’ due process rights.
The Devil is in the Details: Retained Control and Vicarious Liability for an Independent Contractor’s Negligent Acts
The element of control is a key consideration when determining whether or not an employer can be held liable for the negligent acts committed by an independent contractor during the course of work for an employer. From a liability perspective, employers may decide to hire an independent contractor over an employee due to a decreased likelihood for liability for the negligence or intentional acts or omissions of the independent contractor. As an independent contractor generally is free to achieve results in whatever manner she deems fit, she is not controlled by the employer as to the means and methods by which she performs her work. Because of the lack of control the employer has over the independent contractor’s work, an employer generally cannot be held vicariously liable for any negligent acts committed by the independent contractor.
The general rule insulating employers from liability for torts committed by independent contractors is not without its limits. An employer can be held liable for the torts committed by its independent contractor where it retains a certain degree of control over the details of the independent contractor’s work. Whether or not an employer has retained control of an independent contractor’s work can be determined in one or more of the following ways:
1.) The terms of the contract between the parties;
2.) The employer’s degree of supervisory control over the independent contractor’s work; and/or
3.) The employer’s degree of operational control over the independent contractor’s work.
Either one of the aforementioned elements of retained control alone, or, alternatively, a combination of all three can result in an employer being held vicariously liable for the negligent acts of its independent contractor.
First, the parties’ contract can expressly set forth terms that establish the employer retained control over an independent contractor’s work. The determination of retained control, however, is less clear with respect to supervisory and operational control.
Retained supervisory control relies upon a determination of whether or not the employer supervised or maintained an extensive work site presence over the contractor’s work. It is important to note that regular visits to a work site do not qualify as maintaining an “extensive work site presence,” where such visits are primarily intended as check-ups on the independent contractor’s work progress rather than as a means to supervise the contractor’s work. Retained operational control, on the other hand, requires a determination of whether or not the contractor is “free to perform the work in its own way, which personnel provided supplies and gave direction to the workers, and whether the employer was present during the [negligent] incident.” Where an employer has a greater say in how the independent contractor completes its job, there is an increased likelihood for a finding that the employer retained operational control over the independent contractor’s work.
In Lee v. Six Flags Theme Park, the appellate court for the First District held that an employer retained no control over an independent contractor’s work where the independent contractor was responsible for the provision of equipment, for the method in which it completed its project of dismantling a theme park ride, and where the parties’ contract reflected the same. 
An employer’s lack of control over an independent contractor’s work is inversely proportional to its risk of liability for the independent contractor’s negligent acts while working for the employer. While an employer may have less concerns of tort liability while working with an independent contractor compared to working with an employee, employers should still be alert and cautious with respect to the element of retained control.
 Griffin, Toronjo Pivateau, Rethinking the Worker Classification Test: Employees, Entrepreneurship, and Empowerment, 34 N. Ill. U. L. Rev. 67, 74 (2013).
 Lang v. Silva, 306 Ill. App. 3d. 960, 972 (1st Dist. 1999).
 Lee v. Six Flags Theme Park, 2014 IL. App. (1st) 130771, ¶74.
 Id. at ¶90.
 Id. at ¶89-95.
 Id. at ¶3-6, ¶76, and ¶96-97.
There are a number of new laws which become effective in the next few months that will affect employers in Illinois. Here are some of the highlights:
Child Bereavement Leave Act
This new law became effective July 29, 2016. It requires employers with 50 or more employees to provide two weeks of unpaid leave to employees to allow them to:
a) attend the funeral (or an alternative to a funeral) of a child;
b) make arrangements necessitated by the death of a child;
c) grieve the death of a child.
Additional provisions include the following:
• The leave must be completed within 60 days of the date on which the employee receives notice of the death of the child;
• The employee must give 48 hours’ notice of taking the leave if practicable;
• The employer may request reasonable documentation (e.g., death certificate);
• If more than one child dies in a a12 month period, the employee can take a total of 6 weeks bereavement leave in the 12 month period.
The new leave is available only to FMLA eligible employees and the leave should run concurrently with FMLA leave when possible. Also, an employee cannot be forced to take vacation time or paid time off during the time he/she is taking this leave.
A new bill effective January 1, 2017, creates the Domestic Workers’ Bill of Rights Act to define what is and what is not a domestic worker and uses this definition to amend the Illinois Human Rights Act, the Minimum Wage Law, the Wages of Women and Minors Act, and the One Day Rest in Seven Act to include domestic workers within the scope of those Acts.
The Illinois Wage Payment and Collection Act has been amended to require the Department of Labor to conduct a good faith search to find aggrieved employees and remit them amounts recovered as unpaid wages, wage supplements, or final compensation. Recovered amounts must be deposited into the Department of Labor Special State Trust Fund. The Department of Labor cannot require an employee who seeks unpaid wages that have been deposited into the Fund to provide a Social Security number as proof of citizenship. This law is effective January 1, 2017.
Victims Economic Security and Safety Act
Effective January 1, 2017 the Victims’ Economic Security and Safety Act (VESSA) has been amended to expand the definition of “employer” to include any person who employs at least one employee. Employers with 1-14 employees must provide 4 workweeks of unpaid leave during any 12-month period to an employee who is either the victim of domestic or sexual violence, or whose family/household member is the victim of domestic or sexual violence. Current law provides that employers with 15 to 49 employees must provide 8 weeks of unpaid leave and employers with 50 or more are required to provide 12 workweeks of unpaid leave during any 12-month period.
Employee Sick Leave
A new law, the Employee Sick Leave Act, allows employees to use personal sick leave benefits already provided by the employer for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother/father-in-law, grandchild, grandparent, or stepparent for reasonable periods of time as the employee’s attendance may be necessary, on the same terms upon which the employee is able to use sick leave benefits for the employee’s own illness or injury. This new law becomes effective January 1, 2017.
The Criminal Identification Act to has been amended so that, when a petitioner seeks to have a record of arrest expunged, and the offender has been convicted of a criminal offense, the State’s Attorney can object to the expungement on the grounds that the records contain specific relevant information aside from the mere fact of the arrest. If the petitioner has obtained a court order waiving fees under Supreme Court Rule 298 or otherwise waiving the fees, there will be no fee required for filing a petition of expungement or sealing. One year from the effective date or until January 1, 2018, whichever is later, in a county of 3,000,000 or more inhabitants, there will be no fee required for a petitioner if the records sought to be expunged or sealed were arrests resulting in release without charging or arrests/charges not initiated by arrest resulting in acquittal, dismissal, or conviction when the conviction was reversed or vacated. The amendment removes requirements for paying a fee for juvenile records being expunged by the clerk of the circuit court. The amendment is effective January 1, 2017.
Heath Care Workers
Effective January 1, 2017, the Health Care Worker Background Check Act is amended to prohibit health care employers from knowingly hiring, employing, or retaining any individual in a position with certain health care related duties who has been convicted of committing or attempting to commit offenses concerning the manufacturing, delivery, or possession with intent to deliver or manufacture cannabis in excess of 10 grams (rather than any amount).
Wage Assignment Revocation
The Illinois Wage Assignment Act has been amended to allow an employee to revoke a wage assignment at any time by submitting written notice that he/she is revoking the wage assignment to the creditor. A wage assignment notice to the employee must include specified additional statements.
Non-Compete Covenants for Low Wage Employees
The new Illinois Freedom to Work Act prohibits all employers from entering into a covenant not to compete with any low-wage employee of the employer. This law becomes effective January 1, 2017.
Please feel free to contact Tom Weiler or Theresa Bresnahan-Coleman at 312-704-6700 if you have any questions about these new employment law provisions and how they may affect you.
For all Illinois citizens, the winter season comes with an abundance of ice, sleet and snow. But for Illinois business owners, there is an additional threat: the potential for legal liability where someone slips and falls on business premises. According to data compiled by the Centers for Disease Control, in 2010 there were 9,146,026 nonfatal injuries in the United States that resulted from an unintentional fall. This statistic represents 29% of all injuries reported, and the number one cause of nonfatal injuries in the United States for that year. The cost associated with medical treatment for these falls is staggering, as the CDC reports medical costs of more than $59 billion. While these figures may seem intimidating, a savvy business owner armed with a basic understanding of Illinois law can take steps to minimize his or her potential exposure to personal injury suits.
The “Natural Accumulation Rule”
In Illinois, if an individual slips and falls on water, snow, or ice on the premises of a business, and later seeks to sue the business owner for his or her injuries, he or she will need to prove, among other things, that the business owed him or her a “duty”. In most cases involving water, snow, or ice, Illinois courts use the “natural accumulation rule” to determine whether a duty exists.
The natural accumulation rule states that an owner or possessor of land has no duty to remove natural accumulations of ice, snow, or water on its property. This proposition holds true without regard to how long the natural accumulation has existed on the property, or how long any precipitation has been ongoing. Although there is generally no duty, there are situations where a business owner may be held liable.
Even though no duty exists, businesses often undertake efforts to remediate snowy and icy conditions on their properties because such conditions represent a hazard to patrons and employees alike. Where a business opts to remediate, it can be held liable if it performs its removal efforts negligently. Where a business owners opts to remove snow, they still owe no duty with respect to any natural accumulations of snow or ice that lie beneath the removed snow. Liability may also exist where a business owner either aggravates a natural condition, or engages in conduct that creates a new, unnatural or artificial condition.
Much like the run off from an unnaturally accumulated snow pile, defects on a business’ premises can cause unnatural accumulations of snow, ice, or water. For example, consider a scenario where there is melting snow on a building rooftop. As the snow melts, water runs from the source into the gutter system where it is funneled from the roof through a downspout. So what if the downspout releases the water directly onto a sidewalk and it refreezes? A pedestrian that slips on the refrozen water would likely argue that the ice was an unnatural accumulation because it arrived there at the business owner’s direction, as opposed to a more natural means.
However, there are a number of examples where natural accumulations may be altered by human interaction, yet liability does not arise. One proposition commonly cited by the courts is that ruts or uneven surfaces created by traffic in snow or ice are not considered unnatural and do not form a basis for premises liability. In other words, simply traversing over a natural accumulation, to the extent that the ground becomes uneven and potentially dangerous for a later passersby, does not turn the natural accumulation into one that is unnatural. Similarly, courts commonly note that the simple act of salting a patch of ice, such that it melts and then refreezes, does not convert a natural accumulation of ice into an unnatural one.
A final example is that of tracked-in water. The common scenario concerns points of ingress and egress for a business that become highly saturated with water as a result of heavy foot traffic. Under these circumstances, courts consistently hold that landowners are not liable for injuries sustained by those who slip on tracked-in water. Rather, the tracked-in water is considered a natural accumulation that cannot form a basis for liability against the business owner.
The Bottom Line
The key to understanding what will or will not give rise to liability is to look at accumulations of snow, ice, or water and ask how the accumulation arrived there. A vigilant business owner can protect his or her business by taking notice of concerning conditions and remediating them before an accident occurs. Remediation efforts can be as simple as regularly salting a frequently icy area, or as drastic as re-routing a downspout to a flower bed or cold-patching a depression in a parking lot where water frequently pools. Even where preemptive measures are taken, however, slip and falls will occur, and business owners will need to defend themselves. Fortunately, the law promotes the maintenance of safe public environments by encouraging business owners to voluntarily undertake efforts to remediate potentially dangerous conditions even where there is no duty to do so. Illinois courts do not demand perfection from businesses concerning the removal of snow and ice, as doing so would make property owners the absolute insurer of the safety of their business invitees, which the courts have deemed unacceptable. For this reason, the natural accumulation rule exists to ensure that liability may be triggered only where an accumulation of snow, ice, or water is unnatural.
 This data is available to the public through the Centers for Disease Control’s online statistics database, WISQARS, which can be found at: http://www.cdc.gov/injury/wisqars/.
 Graham v. City of Chicago, 346 Ill. 638, 641 (1931).
 See Nowak v. Coghill, 296 Ill. App. 3d 886, 893 (2d Dist. 1998)(finding that the defendants created an unnatural accumulation when they shoveled the snow on their driveway into piles along the perimeter.) Although the defendants were ultimately found not liable, the court agreed that these piles could form a basis for liability if the facts had shown the defendants had knowledge that a particularly wide vehicle would be parking on the driveway that day. Id. Although Nowak involved residential owners, the same principals apply to commercial properties.
 Koziol v. Hayden, 309 Ill. App. 3d 472, 476 (4th Dist. 1999)(“Even when landowners voluntarily remove snow, they do not owe a duty to remove natural accumulations of ice underneath the snow.”) citing Watson v. J.C. Penney Co., 237 Ill. App. 3d 976, 978 (4th Dist. 1992).
 See Hornacek v. 5th Avenue Prop. Mgmt., 2011 IL App (1st) 103502 ¶¶ 31–32 (Sept. 30, 2011)(finding that a stream of water that ran off of a snow pile could constitute an unnatural accumulation that supports a finding of liability against the defendants.) In this case, the plaintiff presented evidence that the defendants had a habit of creating an excessively large snow pile in the corner of a parking lot. Id. ¶¶ 9–11. Throughout the day, the sun would melt the pile resulting in a stream of water that ran off and refroze elsewhere. Id. Plaintiff slipped on this stream of water and sustained injury. Id. The court found that the plaintiff presented sufficient evidence that she fell on an unnatural accumulation. Id. ¶¶ 31–32.
 Swartz v. Sears, Roebuck & Co., 264 Ill. App. 3d 254, 265 (1st Dist. 1993).
 Barber v. G.J. Partners, Inc., 2012 IL App. (4th) 110992 ¶ 25 (Aug. 8, 2012).
 Id. ¶ 26.
At common law, Illinois businesses that were engaged in the for-profit sale, distribution, manufacturing and wholesaling of alcohol were not liable for injures arising out of alcohol transactions. However in 1872, Illinois’ Dram Shop Act was enacted, which specifically recognized a cause of action against such businesses where an intoxicated person injured another. The Dram Shop Act currently provides that:
“Every person who is injured within this State, in person or in property, by any intoxicated person has a right of action in his or her own name, severally or jointly, against any person, licensed under the laws of this State or any other state to sell alcoholic liquor, who, by selling or giving alcoholic liquor, within or without the territorial limits of this State, causes the intoxication of such person.” 235 ILCS 5/6-21.
Under the Act, once a non-negligible amount of alcohol is provided to an intoxicated person, the for-profit seller or provider may be exposed to liability. While many sellers of open alcohol are keenly aware of the expenses and potential liability that can follow from the misuse of their products, many sellers of packaged alcohol are unaware of their potential exposure. Under the Dram Shop Act, recoverable damages may include an injured person’s medical expenses, pain and suffering, loss of means of support, society, and/or lost wages. However, there is a statutory limit to the amount an individual may recover under the Act. This makes insurance coverage a very valuable asset considering the sheer number of alcohol transactions the average business executes on a daily basis. In these circumstances, insurance can offset the costs of settling cases of uncertain liability, and pay for the defense against frivolous suits.
Fortunately, under certain circumstances Dram Shop actions may be defensible based on the contributory conduct of an injured person and their relationship to the intoxicated person. For instance, where an injured party provokes an intoxicated person into committing harmful conduct, such as engaging in a bar fight, the seller or provider may avoid liability by showing that the injuries were caused in part by the injured party’s own contributing actions, or “provocation.”
The “complicity,” or “drinking companion,” defense may also apply. This defense precludes recovery for an injured party that actively contributed to or procured the intoxication of the intoxicated person. For example, where an injured party accepts a ride home with an intoxicated person and they are involved in a vehicle accident, the complicity defense precludes recovery for the injured party if the defendant can show that he or she actively contributed or procured the intoxication of the intoxicated driver.
In today’s litigious society, for-profit alcohol sellers, distributors, manufacturers, and wholesalers are engaged in a risk-inherent business. Luckily, once business owners are aware of their potential liability, and the ways in which to limit their liability, they can plan for worst-case scenarios and protect themselves by taking proactive steps to obtain insurance and train their employees to identify potentially troublesome patrons and situations.
Truck drivers often find themselves operating their trucks outside the scope of their employment, and outside the scope of their carrier’s insurance policy. As such, most people in the industry are familiar with “non-trucking” or “bobtail” liability insurance policies, which provide certain coverage while a tractor is being used for non-business purposes. Specifically, non-trucking liability insurance covers a tractor-trailer when it is used for non-business purposes, whereas bobtail insurance covers a tractor when it is not hauling a trailer, also known as “bobtailing.” Although the concept is simple, coverage issues between trucking and non-trucking/bobtail liability policies often find their way into the courtroom. The key issue in these cases is whether or not the truck in question was “acting in the business of the carrier” at the time of an accident. For perspective, courts throughout the country have found “acting in the business of the carrier” to include:
– Incidental stops, such as meals and rest, during transit;
– Returning an empty trailer after delivery;
– Driving to pick up a trailer or a load pursuant to orders from the carrier;
– Returning from a job that was cancelled;
– Returning home after a load was delayed; and
– Driving to a mechanic while not under dispatch, with the approval of the carrier.
An interesting aspect of these types of coverage cases is that the outcome is often determinative upon a single fact. For example, while some courts have found that traveling to a mechanic is generally an act within the “business of the carrier,” other courts have rejected this position where contract terms specifically provide that the owner-operator is responsible for the maintenance of the tractor. Thus, if a trucker is required to maintain their tractor at their own expense, an accident that occurs while the tractor is being driven to a mechanic may be considered outside the “business of the carrier.” See, e.g., Zurich-American Ins. Co. v. Amerisure Ins. Co., 215 Mich. App. 526 (1996). Courts have disagreed on this issue, but the majority view is that maintenance prior to picking up cargo is “in the business of the carrier” because it is a necessary function for the continued operation of the carrier’s business. However, such differences in interpretation mean that there are usually arguments to be made for and against coverage, and so these issues will inevitably continue to regularly appear in coverage litigation.
 Greenwell v. Boatwright, 184 F.3d 490 (1999).
 Liberty Mut. Ins. Co. v. Connecticut Indem. Co., 857 F. Supp. 1300 (N.D. Ind. 1994).
 Argonaut Midwest Ins. Co. v. Morales, 2014 IL App (1st) 130745.
 Cincinnati Ins. Co. v. Haack, 708 N.E.2d 214 (Ohio Ct. App. 1997).
 Guaranty Nat’l Ins. V. Vanliner Ins. Co., 1998 U.S. Dist. LEXIS 9505 (1998); see also Occidental Fire & Casualty Co. v. Padgett, 113 Ill. App. 3d 215 (1983).
 Great W. Cas. Co. v. Nat’l Cas. Co., 53 F. Supp. 3d 1154 (2014); see also Occidental Fire & Cas. Co. v. Soczynski, 2013 U.S. Dist. LEXIS 2687.
In Indiana, the amount of punitive damages recoverable is limited by statute. Under Indiana Code Section 34-51-3-4, punitive damages in civil cases are limited to three times the amount of compensatory damages, or $50,000, whichever is greater. But, what are considered “compensatory damages” under the statute? For example, consider a plaintiff who is awarded $100,000 in a breach of contract claim and $50,000 in a related defamation claim. If the jury also finds that punitive damages are warranted for the defamation claim, but not the contract claim, can it award $450,000 in punitives, or three times the total damages award, under the statute?
Under Techna-Fit, Inc. v. Fluid Transfer Products, Inc., 2015 Ind. App. LEXIS 676 (Ind. Ct. App. 2015), the answer is no. In Techna-Fit, the Court of Appeals considered a question similar to the one above. The plaintiff was awarded damages for both breach of contract and for a related tort claim. The jury also awarded punitive damages. The punitive damages were within three times the total damages, but were greater than three times the amount awarded solely on the tort claim. The court considered the meaning of the phrase “compensatory damages” under the above statute.. Acknowledging Indiana’s policy that punitive damages should be awarded on a limited basis, the court ruled that punitive damages can only be based on those damages for the underlying claim for which punitives are sought. In other words, because the plaintiff did not seek punitive damages for his contract claim in the complaint, he cannot use his contract damages to magnify his punitive damages.
Applying the Techna-Fit rule to the example above, the maximum amount of punitive damages recoverable would be three times the amount awarded on the tort claim, but excluding the contract damages for which punitives were not sought. Hence, the maximum punitive damage award would be three times the tort damages, or $150,000.
What effect might this ruling have on parties in the future? For plaintiffs, they should be careful to include a prayer for punitive damages in their complaint, where applicable. The Tehcna-Fit ruling explains that a court will rely on the plaintiff’s complaint to determine whether punitive damages were sought, and only those claims may serve as the magnifier under the statute. If not plead within the complaint, then a plaintiff will be left to argue that the claims for punitive damages were “tried by consent” of the parties at trial, which is a difficult argument to prevail on. For defendants, they should use caution when proposing a jury verdict form prior to trial. A jury verdict form should strive to clarify what damages are being sought for each particular claim. Doing so can help clarify what damages are awarded for claims for which punitives are applicable, and to clarify what amount will serve as the basis for any potential award of punitive damages by a jury.
Illinois State Representative Ron Sandack recently introduced House Bill 4426, which proposes to modify 735 ILCS 5/2-1107.1, the Illinois Code of Civil Procedure section dealing with jury instructions in tort actions. If passed, HB 4426 would remove the requirement in Section 2-1107.1 that juries be instructed that “the defendant shall be found not liable if the jury finds that contributory fault of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought.” As amended, 735 ILCS 5/2-1107.1 would expressly provide that the jury shall not be instructed about the consequences of any findings of fault against any party. This practice has often been referred to as “blindfolding the jury” as to the consequences of their findings. The current instruction model is alternatively (and a bit tongue-in-cheek) referred to as the “sunshine” model.
Support for the bill is likely to be strongly split between the two sides of the trial bar. The plaintiffs’ trial bar may argue that the current statute provides the jury with a greater understanding of the consequences of their decision, and that transparent jury instructions have historically been associated with more equitable verdicts. The defense bar will offer that the current statute taints the jury’s role as the fact finder, as a sympathetic juror is less likely to find a plaintiff 51% or more contributorily negligent when he or she knows that such a finding will result in the plaintiff receiving nothing. Illinois Pattern Jury Instruction 36.01 makes it clear that a juror has no cause to consider a plaintiff’s damages unless there is a finding of liability against the defendant. Consequently, a juror should make a determination of the plaintiff’s comparative liability fault based on the evidence alone, and without the specter of the legal consequences or damages informing his or her decision.
However, is there any support for the perception that jurors’ decisions can be tainted by the current contributory fault instruction? In short, yes. Studies comparing a jury’s inconsistent findings in pure comparative negligence jurisdictions (i.e. jurisdictions in which a plaintiff may recover a pro rata percentage of their damages even if they are found 51% or more comparatively negligent) to Illinois’ current modified comparative negligence model, revealed that jurors instructed on the consequences of their comparative negligence determinations were more likely to manipulate their findings to avoid what they perceived to be a “harsh” result. “[A]s expected, juries in modified comparative negligence jurisdictions are significantly less likely to find that a plaintiff was more than 50 percent negligent and significantly less likely to find that a plaintiff was exactly 50 percent negligent or slightly less than 50 percent negligent.”
That said, a contrary empirical study (focused specifically on the net economic impact of a former Illinois “blindfolding” tort reform statute) found that the “net economic impact of adopting either a sunshine or a blindfold rule for a jurisdiction appears to be statistically insignificant.” Notably, the study also acknowledged that the empirical data indicated that “civil juries respond to sunshine rules by lowering the percentage of fault attributable to plaintiffs” while “also appear[ing] to temper this generosity by making smaller awards.” “The mean verdict data strongly support[s] the proposition that jurors who are aware of a percentage bar to recovery will react in ways generally perceived to be more favorable to the plaintiff than will jurors who are not privy to that information.” Thus, the findings remain clear – informing the jury of the consequences of a comparative fault finding against a plaintiff taints the jury’s fact finding process.
House Bill 4426 was referred to the Rules Committee for the Illinois House of Representatives on January 15, 2016. It has not been set for hearing before the Rules Committee as of the date of this post.
 A history of the two approaches in Wisconsin can be found at the website for the Wisconsin State Bar Journal: Robert Kinney, Jordana Thomadsen, Examining Wisconsin Jury Instructions, Wisconsin Lawyer (August 2003).
 Jordan Leibman et. al., The Effect of Lifting the Blindfold from Civil Juries Charged with Apportioning Damages in Modified Comparative Fault Cases: An Empirical Study of the Alternatives, 36 Am. Bus. L.J. 349 (1998).
The Illinois First District Appellate Court recently affirmed a circuit court’s refusal to enforce or modify restrictive covenants contained in an employment agreement, holding that the covenants failed the test of reasonableness articulated by the Illinois Supreme Court in 2011 in Reliable Fire Equipment v. Arredondo. In light of this decision, Illinois employers should take care when drafting restrictive covenants to ensure they are broad enough to cover their legitimate business interests, but not so all-encompassing that they are viewed as an unreasonable restraint on an employee’s ability to earn a living with a future employer. If a covenant’s scope is too broad, courts in the First District may decline to enforce any part of the provision, leaving employers unprotected.
In AssuredPartners, Inc. et al. v. Schmitt, the appellate court held that the restrictive covenants contained in an employment agreement were overbroad and unenforceable as a matter of law, and refused to modify any of the restrictive covenants because the deficiencies were too great to permit modification. The non-competition provision was unenforceable because it did not limit the prohibition on the former employee’s activities to only those related to his specialty of brokering lawyers’ professional liability insurance (LPLI), but rather extended to all business in which the employer engaged. Even if the provision was construed to include only LPLI-related activities, it was still unreasonable because the geographical scope was not narrowly tailored to protect the employer’s business interest, the employer had no legitimate protectable interest in business relationships with potential customers not included on its customer list, the employee would be forced to work in another country if he wished to continue working as a wholesale broker specializing in LPLI or any other type of professional liability insurance, and he would be prevented from working in professional liability insurance in this country for a period of time longer than he had worked for the employer.
The non-solicitation provision was unenforceable because it prohibited the employee from working in the future with customers, suppliers, and other business entities with which he never had contact while he worked for the employer. The court declined to narrow the scope of the patently overbroad provision to only those clients which employee serviced while he was employed. Finally, the confidentiality provision was patently overbroad and unenforceable because it prohibited the employee from using any information he obtained or any observations he made while working for the employer, whether or not such information was proprietary or confidential in nature. The appellate court declined to modify any of the restrictive covenants because their deficiencies were too great to permit modification, and concluded that the employer could not sustain any claims against the employee that would require the court to enforce the covenants.
The outcome in AssuredPartners warns employers in the First District that they cannot simply rely on “boilerplate,” all-encompassing language in their restrictive covenants with the expectation that a court will enforce at least part of a restrictive provision. Rather, employers should work closely with their employment counsel to craft language that puts reasonable, enforceable parameters on their legitimate business interests. Considering the uncertain state of affairs on what constitutes adequate consideration for a restrictive covenant in Illinois, employers need to be as proactive as possible when preparing restrictive covenants to ensure their enforceability and protect their business interests.