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SPEECH IS STILL PROTECTED BUT PROTECTIONS ARE NOT ABSOLUTE

Friday, February 16th, 2018

With all the political rancor of late we hear the term “First Amendment” tossed around frequently, but most of the pundits using that term have no idea what “rights” are actually protected, or to what degree.

The First Amendment to the United States Constitution offers legal protection in many areas, such as speech, religion and assembly, and is one of the most difficult amendments to reconcile with the changing population and American culture.

Most people do not understand that the prohibition against restrictions on speech applies only to the government. No government can pass a law that restricts free speech, but that prohibition does not apply to private citizens or corporations. Accordingly, there is no “free speech” right for the NFL player to take a knee during the playing of the national anthem, and the NFL is free to prohibit such activities.

Private employers are free to prohibit political speeches or protests or other activities on their property and on their time.

Governmental bodies are more constrained on what they can do to limit speech or activities that are deemed to be a form of speech, however they are still allowed to regulate with content neutral rules that set parameters for time, place and manner of speech.

This concept was recently affirmed by the Illinois Supreme Court, when a group of “activists” (some would say trouble makers) decided that the City of Chicago’s ordinance that closes public parks after a certain hour did not apply to them.

Members of this organization staged a protest in Grant Park and refused police orders to disperse. After numerous warnings to leave the park the police arrested and cited numerous protesters, who in turn claimed it was unconstitutional to close the park to them.

That case eventually made its way to the Illinois Supreme Court who ruled that closing the parks was a content neutral and reasonable restriction on time, place and manner of speech and was therefore constitutional, and while First Amendment rights are of the utmost importance, there are legitimate limits, and nothing is absolute.

We are a nation of laws and there are many layers of regulation from the federal government to cities and everything in between and just as with the interpretation of the First Amendment, laws and regulations can be a quagmire and difficult to understand.

If you need assistance navigating the regulations that apply to your business, profession or license, the attorneys at our firm offer free initial consultations, and we would be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

– Dennis Both, Attorney


New Year, New Laws

Friday, February 9th, 2018

Although it is already the beginning of February, it is still the beginning of the new year. This meaning that new laws have come into effect in Illinois. On January 1st, 2018, more than 200 laws took effect thanks to actions by Illinois citizens and activists working with lawmakers. These new laws illustrate improvements, refinements and updates to reflect changing times and needs.

Here is a brief outline of some of the new laws that took effect on January 1st:

Criminal Justice

Seeking more tools to reduce gun violence in Chicago, Emanuel and Chicago police Superintendent Eddie Johnson won approval for a law to increase prison sentences for some people who commit repeat gun crimes. Instead of a range of three to 14 years for some repeat gun crimes, judges would hand out sentences of seven to 14 years under the new law.

  • Defendants accused of murder will no longer be allowedto try to reduce their possible sentences using what’s known as the “gay panic” defense — saying their violence was an act of passion after learning a victim was gay. And sexual orientation can’t be considered provocation for second-degree murder.
  • Crimes committed at churches, synagogues, mosques and other places of worship can now be tried as hate crimes.
  • Stalking, cyberstalking and sending obscene messages may be considered hate crimes, a change pushed by Attorney General Lisa Madigan to address the growing role technology plays when it comes to attacking victims.
  • People leaving the state prison system will now receive a copy of their birth certificate free of charge.
  • Lawmakers also tackled the state’s civil forfeiture law, which allows police and prosecutors to take money, land, vehicles and other propertyfrom those suspected of committing crimes.

Health

Consumer Measures

Schools

Other New Laws

  • Pet owners will be allowed to create custody plans for pets as part of divorce agreements
  • Illinois will now recognize Aug. 4 as Barack Obama Day, though state workers won’t get time off to honor the former president.

 

http://www.chicagotribune.com/news/local/politics/ct-met-2018-new-laws-illinois-20171219-story.html

– Kendall E. Hodges, Attorney


When You Want to Stick Together, But the Court Says “Go it Alone.”

Friday, February 2nd, 2018

In October, I wrote in this blog about the use of so-called Class Action lawsuits, wherein multiple injured parties band together to seek relief. They are especially useful when the amounts of individual damages may not be high enough to merit legal action on their own, but collectively amount to significant wrongdoing. On January 30th, the Federal District Court for the Northern District of Illinois handed down a reminder that, despite the usefulness of such consolidation, there are rules and restrictions as to how classes can come together. In the matter of Abraham v. Group O, Inc., the Judge ruled that the 76 plaintiffs in the case must proceed in separate actions for several reasons.
The actual facts of the lawsuit concern the Fair Labor Standards Act (“FLSA”), which regulates minimum wage, overtime pay, and other hourly wage rules at a Federal level. The plaintiffs each worked as temporary employers, through the staffing agency Group O, Inc., at the Caterpillar plant in Joliet, Illinois. They allege that they were forced to work unpaid through lunch hours and that they, due to the timekeeping system’s automatic “rounding off” 15 minutes at the beginning and end of each shift, were systematically underpaid for the actual work they were performing.
These circumstances led the workers to file several separate lawsuits alleging violations of various labor law stretching back to 2013. The current class action, however, was filed pursuant to Federal Rules of Civil Procedure 20 and 21. Rule 20 itself is actually pretty straightforward. It permits people to join their claims when “they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact common to all plaintiffs will arise in the action.” Of course, there’s a lot of disagreement about the specific meaning of all that. Thus, Rule 21 allows judges to cut out parties who don’t meet the requirements, or to “sever” them from the lawsuit.
In this case, the judge decided to essentially sever everyone except Mr. Abraham. He did so for several reasons, mostly pointing to the very different circumstances of each worker. They were employed by Group O, Inc. over a time period stretching from 2004 to 2016, worked in at least 27 different actual job positions ranging from clerical positions to forklift operators to actual supervisor roles, and altogether held jobs that required various distinct levels of responsibility. Basically, the Judge argued, the violations alleged by the class members did not really stem from the same series of transactions and occurrences.
If that seems overly harsh, part of the skepticism of the judge in this case does stem from the particular history of these claims themselves. The 2013 case on the matter, Creal v. Group O, Inc., brought a collective action under the enforcement auspices of FLSA itself under 29 U.S.C. § 216(b). The judge in that case found the many claims too dissimilar for much the same reasons as cited above and kicked the other part members out of that case as well. If the current judge was on the fence, he might have leaned towards severing the cases so as to prevent the workers from getting a “second bite of the apple” as to class action.

– Travis J. Dunn, Attorney


Labor in America

Friday, January 26th, 2018

Labor in Illinois has always been an ever changing and fluid topic in the legislature. Under Governor Rauner, there is no doubt that the common working men and women have been overlooked and underappreciated. In fact, our own state legislature held worker rights hostage by trying to force changes to the workers’ compensation act which would have affected the Petitioner’s right to recover instead of passing the budget. So how do we prevent these types of hostage situations from occurring in the future in our state?

Voting. Your upcoming votes are essential to the future outcomes for working people in Illinois. Given the information and candidate speeches I heard on Saturday, I can tell you from my own viewpoint, I think that most of these candidates are absolutely incredible, dedicated, and are passionate about the job position they are applying for. I truly believe that they will work for you rather than for the party they are running under. I believe them when they say they care about worker rights. Most of them have had the opportunity to show their commitment to you, and I think they have prevailed in representing to the public that they are following the wishes of the public that they serve.

I guess more than anything this blog is a simple plea for you to research all of the potential candidates running for office. Make sure that they are voting for you. Make sure they are someone who will vote and work in your best interests. Identify the platforms for each candidate that matter to you, and make your decision based upon their past political history, if applicable, as well as their current campaign promises. Look at their past job history. See what makes them uniquely qualified to represent you, and then vote based upon which candidate accurately represents your household. While it’s important to vote for someone who ideologically represents your major policy issues like religion or abortion policies or procedures, it is also important to vote for someone who can best represent your economic interests and can vote in a way that will protect your family and your economic future. I encourage you to get out and meet your candidates. Go to events where they are speaking, and take five minutes to shake their hand and find out who they are as a person. Find out if you truly believe they will vote in your best interests after they are elected to office, and then make your vote based upon all of the information you have gathered thus far. I believe Illinois has a bright future for workers if we allow it to. Join me in getting out to vote for the local candidates who really have the power to influence your life and livelihood in this upcoming election. The President functions on a national scale. The President doesn’t know you, and he doesn’t have to care about your specific family. Your local representatives do. Let’s bring politics back where they belong- home.

– Alexis P. Ferracuti, Attorney


RULES ARE NOT MEANT TO BE BROKEN

Friday, January 19th, 2018

Illinois has created an administrative agency known as the Workers’ compensation Commission, tasked with adjudicating claims involving workers who are injured on the job.

Cases initially are heard and decided by arbitrators, but the law allows for appeals, and if a party is not satisfied with the decision eventually they can appeal to the Circuit Court.

Appeals are governed by procedural rules that must be followed in order for an appeal to be heard. Failure to follow those procedural rules can have dire consequences as a local employer recently learned.

After a trial the employer appealed the decision and eventually the case made its way to the Third District Appellate Court which sits here in Ottawa, where the court determined that the rules of procedure had not been followed, stating “…on appeal from a decision of the Commission, the circuit court obtains subject-matter jurisdiction only if the appellant complies with the statutorily mandated procedures set forth in the Act.”

The Appellate Court determined that the rules had not been followed and it was error for the LaSalle County Court to have heard the appeal as the Court did not have jurisdiction to do so.

The decision was favorable to the employee as it allowed the award of benefits to stand, thus requiring the employer to pay.

The Law Offices of Peter F. Ferracuti has been fighting to protect the rights of injured employees and making employers pay for more than 50 years.

If you are injured at work or in an auto or other accident, our firm offers free initial consultations, and we’d be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

– Dennis Both, Attorney


Slips and Falls on Snow and Ice

Saturday, January 13th, 2018

The weather in Illinois is unpredictable. Today, I walked outside to a 55-degree January day. However, in a short couple of hours, the weather has predicted rain, ice and sleet to cause hazardous conditions. Ice and snow can cause all sorts of issues especially when it comes to traveling and having to enter and exit your vehicle or walk into a store or building. In Illinois, slip and fall on snow and ice cases are common especially during the winter months. Every winter, our law firm receives dozens of calls and inquiries from people who have slipped and fallen on ice and snow. Many of the people who call in have been seriously injured, some even resulting in surgery. However, we are unable to take some cases based on the law in Illinois in regard to slips and falls on snow and ice. I am going to go over how to determine liability after you slip and fall on ice in Illinois.

To determine liability for slips and falls on snow and ice, Illinois follows the unnatural accumulation of snow and ice rule. This means that in order for there to be liability for fall on ice or snow, the ice or snow that made you fall must be an unnatural accumulation of ice or snow. If it is a natural accumulation of ice or snow, then there is no liability.

The snow and ice are considered a natural accumulation if it is the result of natural weather conditions. This means that if the basis of your case is that the snow or ice was not shoveled or salted, there is no liability to the property owner. The law even considers ice which has been formed by snow being tamped down by pedestrian or vehicle traffic to be a natural accumulatio nor snow and ice. The law also considers puddles of waters inside of buildings resulting from pedestrians tracking in the snow or ice that melted to be a natural accumulation of snow.             There are exceptions to the natural accumulation of snow and ice rule. One important exception is if there is something in the lease for property where the management company and/or landlord agrees to remove snow and ice.

An example of unnatural accumulation of snow or ice which would result in liability for falling on snow or nice is if there is a feature or defect in the property which causes ice or snow to accumulate in a specific location. Such as, a downspout dumps water onto a sidewalk where it freezes and becomes ice. Another example of unnatural accumulation of snow or ice is if actions on the part of the property owner which cause ice or snow to accumulate in a particular location. Such as, where the property owner piles snow in front of a door.

The line between what is considered a natural accumulation of snow and ice and what is considered an unnatural accumulation of snow or ice is a blurry one, which is why our office can help you with your case. Cases involving falls on snow or ice require a thorough analysis of the facts before it can be determined if there is liability for the fall on ice or snow. Our office is always happy to discuss your case.

If you find yourself in the unfortunate situation of slipping and falling on snow or ice, the Law Offices of Peter F. Ferracuti would be happy to set up an appointment for a free consultation through our toll-free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com

– Kendall E. Hodges, Attorney


Spectator Sport Injuries: A Topic for All Seasons

Friday, January 5th, 2018

During these coldest of winter months, a reminder that injuries and the litigation that accompanies them can last well beyond the seasons where they occur: On December 15, 2017 The Chicago Cubs and Major League Baseball filed motions seeking the dismissal of a negligence claim filed by a fan who was blinded by a foul ball in Wrigley Field at a game on August 29th. They argue that the suit, brought by John “Jay” Loos, is blocked by Illinois Baseball Facility Liability Act (IBFLA), which provides immunity from these types of injuries in the course of watching a game of America’s pastime except in cases where the venues engaged in willfully or wantonly dangerous conduct or their netting was defective or insufficient.
The dangers of foul balls in baseball are fairly straightforward, but for the most part the legislative presumption is that someone who is watching a baseball game is aware of and accepting of the risk. The provision regarding required netting exists, however, to ensure that levels of protection are given to the most egregiously dangerous locations, such as the areas directly behind the batter. Mr. Loos was sitting on the first baseline, and his suit tries to avoid the immunity afforded by the law by arguing that the current netting at Wrigley Field is insufficient and should be extended further up the baseline.
Somewhat ironically, the MLB seems to have gotten hooked into this suit in the first place on the basis of its making a recommendation in 2015 for this very thing: more extensive netting at the fields. Loos argues that this letter constituted the MLB undertaking a legal duty to the fans at the fields where this recommendation was directed: a proposition that the MLB obviously denies. Now it is up to a judge to decide if the MLB can get out of the case for lack of duty, and whether the existing netting was reasonable enough to save the Cubs under the IBFLA.
Of course, the existence of the IBFLA itself is a bit of a puzzler. Why single out a particular sport for blanket legal protections regarding liability at their properties? While only four states have similar laws, it turns out that similar “Baseball Rules” are good caselaw in a majority of jurisdictions in the country. Illinois just felt the need to enshrine it in a statute: perhaps that’s why we have two professional baseball teams (I know, I know, but Busch Stadium is on the other side of the border). And if you want something that is perhaps a bit more seasonal, I would note that there is also a Hockey Facility Liability Act. I might be talking about puck injury suits when summer roles around.

– Travis J. Dunn, Attorney


OUT WITH THE OLD

Friday, December 22nd, 2017

As 2017 draws to a close, it is time to look back on the year past and look forward to what the new year brings

One of the things we will see in 2018 is tax reform and hopefully it brings the promised relief so more of you can keep more of what you earn in your own pocket. We all know better than the government how to spend what we work hard to earn.

In addition to tax changes the government always brings us new laws related to employment, and Illinois may be on its way to increasing the minimum wage.

Keeping abreast of changes in the law and how those changes may affect you or your business can be challenging. You would be surprised at how many businesses are clueless to employment laws that impact them.

For instance, did you that in 2017, in Illinois a law went into effect that requires employers to allow employees to use sick time to take family members to the doctor. This means if you have a sick leave policy you cannot be docked or punished if you use your sick time to care for a qualified family member or take them to the doctor. It probably comes as no surprise that many employers violate this law either out of ignorance or malice. Either way a violation may be actionable

In Illinois we will see new laws on many topics form outlawing elephant in circuses, to considering the welfare of your pets in divorce cases (even if you are a pet lover, with the nation’s highest taxes, huge unemployment and gang violence at all time highs you have to wonder about the priorities of Illinois legislators), new laws are set to take effect January 1.

If you need a audit to see if your employment policies are in compliance with new or existing laws, or if you feel your employer is not following the law, we can help.

Our firm offers free initial consultations, and we’d be happy to set up an appointment through our toll-free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

Here’s to hoping 2018 is a healthy and prosperous year for everyone.

 

 

– Dennis Both, Attorney


Winter Driving Tips

Friday, December 15th, 2017

We are half-way through December and have yet to see a significant amount of snow in Illinois. This seems to be a little odd for this time of year in Illinois. I mean last week Georgia even got snow before Illinois has. However, as winter continues, and the weather continues to drop, there becomes more of a likelihood of snow. Snow and ice can be both frightening and dangerous for automobile travel. Snow is one of the top causes of car accidents. As our personal injury attorneys know, traffic accident statistics always increase in the winter months, so if you live in a cold-weather state, you will need to be prepared for it. If you have no choice but to drive in the snow, here are some tips:

 

  • Accelerate and decelerate slowly. Applying the gas slowly to accelerate is the best method for regaining traction and avoiding skids. Don’t try to get moving in a hurry. And take time to slow down for a stoplight. Remember: It takes longer to slow down on icy roads.
  • Drive slowly. Everything takes longer on snow-covered roads. Accelerating, stopping, turning – nothing happens as quickly as on dry pavement. Give yourself time to maneuver by driving slowly.
  • The normal dry pavement following distance of three to four seconds should be increased to eight to ten seconds. This increased margin of safety will provide the longer distance needed if you have to stop.
  • Know your brakes. Whether you have antilock brakes or not, the best way to stop is threshold breaking. Keep the heel of your foot on the floor and use the ball of your foot to apply firm, steady pressure on the brake pedal.
  • Don’t stop if you can avoid it. There’s a big difference in the amount of inertia it takes to start moving from a full stop versus how much it takes to get moving while still rolling. If you can slow down enough to keep rolling until a traffic light changes, do it.
  • Don’t power up hills. Applying extra gas on snow-covered roads just starts your wheels spinning. Try to get a little inertia going before you reach the hill and let that inertia carry you to the top. As you reach the crest of the hill, reduce your speed and proceed down hill as slowly as possible.
  • Don’t stop going up a hill. There’s nothing worse than trying to get moving up a hill on an icy road. Get some inertia going on a flat roadway before you take on the hill.
  • Stay home. If you really don’t have to go out, don’t. Even if you can drive well in the snow, not everyone else can. Don’t tempt fate: If you don’t have somewhere you have to be, watch the snow from indoors.
  • Upgrade with tire chains or snow tires.
  • Clear snow off all your windows and your roof before beginning your trip. Keep a special ice scraper in your vehicle to properly clean off your windshield and windows.
  • If you start to skid, remain calm and steer your car into it. Release your brake and honk your horn to alert other drivers’ attention.
  • Be especially careful of black ice which is like invisible ice.             Thorough preparation is most of the battle against snowy conditions.  If you take the proper precautions before hitting the roads during a snow storm, your chances of avoiding a car accident are that much better.
  •             If you’ve been injured in a car accident involving snow, we offer free initial consultations, and we’d be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

– Kendall E. Hodges, Attorney


Animals out of Control

Friday, December 8th, 2017

Earlier this week, a wrongful death lawsuit was revived in the case of a man who was drowned after he was attacked by a nesting swan in 2012. The suit, brought by his widow, alleges that the property management company which owned and managed the property (and a pair of mute swans located there) was liable for the death. The current suit is actually a refiling of a 2014 action making substantially similar accusations.
Although the circumstances of this particular claim are particularly tragic and eye-catching, the case does highlight the level of responsibility that animal owners have in the injuries (and in this case, death) caused by the creatures, both exotic and domestic, under their care.
In fact, the law surrounding such animal-caused injuries has several layers. In the first place, Illinois has actually mostly outlawed the private ownership of certain particularly dangerous animals, including lions and tigers and bears. And wolves. And poisonous lizards. If you choose to keep a hyena and it injures someone, not only will you be responsible for the injuries it causes (except in certain specific circumstances such as the injured party assuming the risk of coming into contact with the animal, or outright provoking the attack in some way) but you also may be subject to criminal penalties. Judicial decisions will also hold you strictly accountable if your animal isn’t commonly domesticated, such as the swans mentioned above.
In the past, injuries caused by “normal” pets created liability only if there was reason to believe that the animal was unusually dangerous or mischievous. However, the Illinois Legislature found such law to allow too much leeway for animal owners to claim ignorance about the danger their pets posed to others. They passed the Illinois Animal Control Act, which holds owners to account if there is (1) proof of injury by the animal; (2) lack of provocation; (3) peaceable conduct; and (4) presence of the injured party in a place where he or she had a right to be.
Of course, there is plenty of grey area in even these fairly comprehensive laws. In one 2016 case, Coe v. Lewsader, the fourth appellate district was called upon to determine whether a motorcycle accident caused by a dog lying in the middle of a road fell under the Animal Control Act or not. Since the dog hadn’t taken any action in the injury, the cyclists could not hold the owner responsible. In a less intuitive case before the same court, 1997’s Docherty v. Sadler, the question was whether an injured child who was “babysitting” a neighbor’s dog had “control” of the animal, preventing him from holding the neighbor responsible. The court found that the child had assumed temporary ownership over the dog in caring for it, and thus couldn’t collect against the absent neighbor for the attack. Cases like this demonstrate the importance of seeking qualified legal counsel even in situations that appear straightforward.

– Travis J. Dunn, Attorney


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