Tim concentrates on the firm’s business, tax, and trust and estates practice areas. He routinely assists clients with employee benefit plan administration, general corporate matters, and complex tax issues.
During law school Tim served as an internet and symposium editor for the Illinois Law Review. He was awarded the J. Nelson Young Award for excellence in the study of tax law, and won CALI awards for the highest overall grades in corporate tax, state and local tax, and labor law. He has also published with the Illinois Business Law Journal on state and local tax issues.
Tim first came to the firm as a summer associate and returned after law school. Prior to joining Davis & Campbell, he served as an adjunct professor at the University of Illinois College of Law where he taught legal research and writing.
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On May 31, 2018, a federal judge in Chicago refused to dismiss allegations that an employer and its time-keeping equipment supplier violated the Illinois Biometric Information Privacy Act (“BIPA”). In part, BIPA requires private entities in possession of biometric information — including retina or iris scans, fingerprints, voiceprints, or scans of hand or face geometry — to: (a) inform an individual that biometric information is being collected, the purpose of such collection, and the length of time the biometric information will be stored; (b) develop written biometric information retention and destruction policies; (c) obtain a written release from the individual whose biometric information is being collected; and (d) refrain from sharing biometric information without the individual’s consent.
The lawsuit, Dixon v. Senior Smith Living et al., alleges the employer required its employees to clock in and out of work by scanning their fingerprints, which the employer stored in a database after the first time they were scanned. The lawsuit further alleges the employer: (i) did not inform its employees of the specific purpose or length of time for which the stored fingerprints were to be collected, stored, and/or used; (ii) did not make available information about its biometric data retention policy (if it had such a policy) or other guidelines regarding the permanent destruction of the biometric information it possessed; (iii) neglected to obtain a release from its employees to collect or store their fingerprints; and (iv) “systematically disclosed” that information to its time-keeping supplier. If proven, the employer could be required to pay the greater of actual damages or liquidated damages of $1,000 or $5,000 per employee.
The lawsuit serves as a reminder to employers adopting technology that uses biometric information. Before implementing those technologies, employers must take steps mandated by BIPA to ensure the privacy of its employees’ biometric information.
For more information or to discuss biometric information issues and the policies required by BIPA, contact author Jay Scholl.
On May 21, 2018, the United States Supreme Court decided Epic Systems Corp. v. Lewis, ruling that companies can draft employment contracts to include arbitration clauses that bar employees from joining together in court and taking legal action concerning workplace issues. For thousands of companies, this decision means they can continue to require arbitration agreements as conditions of employment. For others, it means they now have the option to include arbitration clauses in employment agreements to protect against expensive class action lawsuits.
The employment contracts at issue in Epic Systems required employees to resolve workplace disputes in arbitration rather than in court and to file their claims one-by-one rather than collectively. In analyzing consumer contracts, the Supreme Court previously ruled that companies may require arbitration and forbid class actions. The issue for the justices in Epic Systems, however, was whether consumer contract rules also applied to employment contracts. Workers argued that allowing arbitration clauses in employment agreements is different than allowing them in consumer contracts because the National Labor Relations Act prohibits class waivers and protects workers’ rights to engage in “concerted activities.” Federal appeals courts in Chicago and San Francisco had accepted that argument; a federal appeals court in New Orleans had rejected it.
The majority of the Supreme Court Justices disagreed with the workers’ arguments and instead affirmed the precedent favoring arbitration. If workers were allowed to join together to pursue their claims, Justice Neil M. Gorsuch wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”
In sum, this Supreme Court decision is a big win for employers who favor arbitration over litigation and who wish to avoid class action suits.
For more information or to discuss arbitration clauses in light of Epic Systems, contact author Nicole Meyer.
Recent changes at the National Labor Relations Board gave employers hope that some Obama-era regulations and rulings would be loosened. However, despite some favorable rulings, the recent decision in Nicholson Terminal & Dock Co. demonstrates it will take time for the Board’s new rulings to roll down to the Administrative Law Judge level. In reviewing an employee handbook policy, the ALJ in Nicholson seemingly stuck to the previous administration’s standard for review, rather than apply the new Boeing Co. standard established by the current Board in December 2017, which loosened some of the standards applied in reviewing employment rules and policies.
Despite the new relaxed balancing test, the ALJ held the policies at issue were unlawful because the employer failed to provide any evidence or argument that justified the policies. Consequently, the policies were unlawfully overbroad and violated the Act. With respect to the “no-camera” policy at issue, the ALJ acknowledged Boeing Co. specifically held a no-camera policy may be lawful, stating “…the Board has provided guidance that, in general, it expects to find no-camera rules lawful.” Even with that backdrop, the ALJ ultimately found the employer’s alleged justifications of “safety” and “no distractions” unconvincing.
Likewise, the ALJ held the “no moonlighting” rule violated the Act. This policy required that “…employees do not have another job.” The ALJ found the policy could be reasonably interpreted to prevent employees from working for the union. She concluded that though a legitimate employer interest, as written the policy did not outweigh the rights of employees to participate in union activities on non-working time.
The takeaway from Nicholson is that application of the Boeing Co. standard is still in its early stages. Despite the new balancing test, a broadly-written policy — even one regarding matters on which the Board intendeds to grant employers some measure of relief — currently will not withstand scrutiny under the Act. As more employment policy cases move forward, employers will begin to see the new Boeing Co. standard applied with additional leeway given to policies likely to previously have been found unlawful. Stay tuned.
For more information or to discuss employment policies in light of Boeing Co., contact author Paul Burmeister.
On November 2nd, Derek A. Schryer and Jeff. J. Huzenga will be at Estate Planning Council of Central Illinois, speaking on the topic of Strategies Involving IRA and Retirement Plan Beneficiary Designations. View More
Attorney Derek A Schryer spoke at ERISA – Common Mistakes Made By Employers in Designing/Administering Employee Benefit Plans on September 12th during a luncheon. He discussed avoiding common errors in the design and administration of benefit plans. Other topics of discussion were: ACA requirements, ERISA preemption rules, caution in regards to reactive changes to health plan design, COBRA, Wellness programs and much more. View More