LAW NOTES

FALL 2020

ATTORNEY WILLMAN ATTENDED LEADERS TO WASHINGTON TRIP

       In March 2020, Attorney Christina M. Willman was selected to attend the Leaders to Washington trip with the Illinois Farm Bureau. During the trip, Christina got the opportunity to represent farmers and agricultural producers in Stephenson County and to discuss current agriculture issues with elected legislators, governmental agencies and trading partners with the United States.

       The Illinois Farm Bureau selects a group of Illinois Farm Bureau members from all over the state each March and September to travel to Washington D.C. to lobby for and discuss current agriculture topics. Eighteen members traveled to Washington D.C. from March 10, 2020, to March 12, 2020. On March 10, the participants met with the U.S. Environmental Protection Agency to discuss their concerns about several policies affecting ethanol and fertilizers.

       The members also met with the French Embassy to discuss France and the United States’ trade relationship.  Topics included France’s agricultural industry and the odds of a trade deal between the two countries. At night, several of the members, including Christina, took a tour of the Washington Mall and learned the history of several of the monuments and buildings.

       On March 11, the participants met with their respective U.S. Senators and Representatives to advocate for policy changes and ask for help with current issues. Christina relayed her experience with clients during a meeting: “The calls for bankruptcy are increasing every day. Farmers are dipping into their equity and considering liquidating. They’re debating whether they should pass farms down to their children. More farms close every year.” Most of the participants attributed these consequences to issues with trade, weather, and markets. The members advocated for better rural infrastructure, including broadband, and more trade deals. They thanked the senators and representatives for USMCA.

       On the last day of the trip, members met with several departments of the U.S. Department of Agriculture, including the Office of the Chief Economist, Foreign Agricultural Service, Risk Management Agency, and National Agricultural Statistics Service regarding trade deals, crop reports, and agricultural programs, such as the Market Participant Program (MPP). The members shared their concerns and delivered ideas on how to improve the reporting procedure for crop reports. The last meeting of the trip was with the Chief Agricultural Negotiator Ambassador Greg Doud and the White House Office of Public Liaison. The members inquired about the progress of the China Phase I trade deal and the negotiations leading up to the deal. The Ambassador and the White House shared positive attitudes regarding future trade deals and relationships.

       Overall, the trip gave Illinois Farm Bureau members a direct opportunity to meet with policymakers to promote and advocate for agriculture and policy changes to benefit Illinois farmers. Christina was grateful for the opportunity to represent the Stephenson County Farm Bureau and highly recommends the Leaders to Washington program. If you are interested in future Leaders to Washington trips, please contact your local county Farm Bureau Manager for registration and additional information.

LEGAL UPDATES FOR EMPLOYERS

       The year 2020 has brought many new changes for everyone, especially employers and employees. Besides the executive orders and evolving regulations for COVID-19, the Illinois legislature updated and adopted several laws for employers regarding sexual harassment, discrimination, and recreational cannabis.

       Regarding sexual harassment and discrimination, the Illinois legislature amended the Illinois Human Rights Act to include various new provisions. One of the provisions permits non-employee individuals who work directly with the employer on a contractual basis (such as contractors or consultants) to bring a sexual harassment or discrimination claim against that employer. In addition, where the Illinois Human Rights Act previously only applied to employers with 15 or more employees, it now applies to any employer employing one or more persons. Small businesses with fewer than fifteen employees should seek legal advice regarding the Act to be aware of possible liabilities and any actions that may need to be taken to be in compliance with the revised Act.

       Beginning on July 1, 2020, and before each July thereafter, all employers must report to the Illinois Department of Human Rights (IDHR) the amount of judgments and administrative rulings against them for any unlawful employment practice. In addition, the Illinois legislature added a provision requiring all employers with employees working in Illinois to conduct mandatory annual sexual harassment training for the employees. The training must meet certain criteria determined by the IDHR, which has a model sexual harassment prevention training for employers on its website. The training must be completed by December 31, 2020. Please consult your attorney regarding questions about specific training programs and compliance with the new sexual harassment and discrimination provisions.

       In January 2020, Illinois legalized cannabis and adopted new laws relating to its use. The Right to Privacy in the Workplace Act prohibits an employer from discriminating against an employee for using cannabis or having a family member who uses cannabis. This provision means that an employer cannot refuse to hire, fire, or disadvantage an employee for using cannabis off the business premises during non-working hours. An employer who violates this provision can be sued for damages plus court costs and attorney’s fees. There may also be fines or criminal charges against the employer.

       However, the Cannabis Regulation and Tax Act still allows employers to keep their workplaces drug-free, which means employers can prohibit cannabis use while on business premises or company time. An employer can also discipline an employee for being impaired at work if the employer has a good faith belief the employee is impaired. An attorney can assist with changes to your company’s substance abuse policy and procedures for dealing with an employee believed to be impaired at work.

ILLINOIS ENACTS STRONGER PROTECTIONS AGAINST ELDER ABUSE

       Elder abuse at the hands of caregivers, siblings, children, and others has been an issue of increasing concern for several years. The term “elder abuse” consists of physical neglect and abuse or financial exploitation or both. The Illinois legislature and Illinois courts have developed protections for elder abuse victims that could deter individuals from committing elder abuse and prohibit the perpetrators from benefiting from his or her wrongdoing. 

       In January 2020, the Illinois legislature passed two laws that make it harder for people to receive any benefit from committing elder abuse and easier to hold people accountable for their criminal actions. The Illinois Probate Act of 1975 was amended to include a provision that disqualifies an abuser from receiving any property or interest upon the death of an elderly or disabled person if the abuser was found to have committed assault and battery, financial exploitation, abuse, or neglect against that person. The abuser may be found guilty of a criminal charge or held to be civilly liable. The abuser is prohibited from receiving any property of the victim no matter how it passes, including by gift, beneficiary designation, insurance claim, or by a will or trust provision. The abuser will not be allowed to receive anything from the victim’s estate.

       In addition, the Criminal Code of 2012 was amended to allow the State of Illinois to bring a criminal charge against a person who financially exploits an elderly or disabled person in any county in which the offense occurred or where the victim resides. Financial exploitation means that an individual uses an elderly or disabled person’s resources to the disadvantage of that person or to the profit of another person other than that elderly or disabled adult. For example, an agent named in an elderly or disabled person’s Power of Attorney can be charged with financial exploitation if the agent uses that person’s money to spend on themselves or their family. This amendment gives more flexibility to state’s attorneys to file the case in the victim’s county, which may make it easier for an elderly or disabled person to appear in court. The provision also states that consent is not a defense if the financial exploiter knew or had reason to know the victim lacked the capacity to consent. Not allowing consent as a defense will make it easier for the State of Illinois to hold abusers accountable when they knew that their victims were not able to understand what they were agreeing to.

       Illinois courts presume that any transaction that benefits the agent or another person besides the principal (the person appointing the agent to handle their financial affairs in a Power of Attorney document) is fraudulent. To overcome that presumption, the agent must prove that the transaction was in the best interest of the principal. Victims of elder abuse and their advocates should contact an attorney for legal assistance. An attorney can assist a victim of elder abuse with recovery of stolen assets and change documents to strip an abuser of the authority to control a victim’s finances and continue the wrongdoing.

PREMISES LIABILITY– WHEN ARE YOU AT FAULT?

       When a landowner purchases a property insurance policy, one of their main concerns is the coverage for physical damage to their property. However, landowners should also be knowledgeable about the policy provisions regarding their liability if a person gets injured on their property. This type of liability is often referred to as premises liability. A landowner’s premises liability depends on whether the person injured was trespassing or not.

       The Illinois Premises Liability Act (Act) sets forth the duty a landowner owes to persons on their property with the landowner’s consent regardless of the purpose of the visit. Under the Act, the landowner is not liable for the injures of an adult who is trespassing. Under Illinois law, a landowner owes a person legally on their property a duty of reasonable care. Generally, a landowner breaches the duty of reasonable care (and faces potential liability) by allowing an unreasonably dangerous condition to exist on the property that injures a legal visitor or guest.

       In order for an injured person to recover costs for his or her medical bills, lost wages, and other damages from the landowner, the injured person must prove that the landowner owed a duty to the guest (i.e. was not a trespasser), the homeowner breached their duty by allowing a dangerous condition to exist on their property, the dangerous condition caused the guest’s injury, and the guest suffered damages. If the accident was reasonably likely and reasonably foreseeable, the more likely a jury or judge may find the homeowner negligent and liable. An important piece of evidence for notice and foreseeability is whether the landowner had received any complaints about the condition or if there had been prior accidents or “near misses.” In addition, the guest would have to prove that the accident on the landowner’s property is what caused his or her injuries.

       One defense to a negligence claim by an injured person is that a condition on the landowner’s property was so obviously visible that the guest caused the accident by not paying attention to their surroundings. Landowners can prevent premises liability claims by fixing or repairing any potentially dangerous conditions that could foreseeably injure their guests such as a broken step, an uneven sidewalk, or an unfilled pit/hole.

       The specific facts of a premises liability case will determine whether a landowner is held responsible for an injury occurring on their property. Landowners may be liable to children and for willful and wanton acts against trespassers and others. Liability can extend to persons on the property for recreational or conservation purposes. An attorney can assist with analyzing and arguing your case, whether you are the landowner or the injured party.

OFFICE NEWS

        Our firm is ready and able to help assist our clients and the community with their legal needs during the pandemic. We have implemented procedures intended to keep our clients and our staff safe and continue to provide quality service. Please contact our firm for your legal needs.

        Thank you for everyone who filled out a feedback card in our last newsletter. We had a great response with wonderful suggestions! We will be incorporating many of the suggestions in our future newsletters.