There are a variety of areas that we will be watching in 2023, from law practice considerations to employment, estate planning, real estate and other areas:
Will the U.S. Dept. of Labor implement a 2022 proposal that could make it more difficult for employers to classify their workers as Independent Contractors? Right now, Illinois employers are typically applying a three-pronged test when considering whether a worker can be classified as an Independent Contractor or an employee: Is the worker generally free from the control and direction of the employer, is the worker performing work/services outside of the employer’s regular business, and is the worker typically engaged in an independently established trade, occupation or business. The USDOL’s proposed rule would require examination of six factors, such as the worker’s opportunity for profit or loss; the skill required for the work; the degree of permanence of the working relationship; the investment in equipment or materials required for the task and whether supplied by the employer or the worker; the nature and degree of control over the worker’s time and work; and, how integral the worker’s services are to the employer’s business. The Society For Human Resource Management suggests that the proposed new rule is likely to affect employers who rely on gig workers in the most substantial way and will be watching for further DOL guidance and legal challenges. We believe that this is yet another reminder that all of our employer clients should review their pay practices to determine whether workers are properly classified as employees or independent contractors. The risk of misclassification, particularly for employers who rely without support on independent contractor identification and pay practices, is the risk of minimum wage, overtime and other benefit violations.
Chicago Employers’ compliance with, and effect of, the 2022 enhancements to the City’s law prohibiting sexual harassment. Chicago employers must provide Supervisors with 1 hour bystander intervention training, and 2 hours sexual harassment prevention training, and must provide Non-Supervisors with 1 hour bystander training, and 1 hour sexual harassment prevention training every year. The training requirements went into effect July 1, 2022 for all employers with 1 or more workers. The Chicago Commission On Human Relations enforces the City’s sexual harassment prevention training requirements and the other aspects of the law. The State of Illinois already requires sexual harassment prevention training, which may meet some of the City’s training requirements. Clients are advised to check out the information available at http://www.chicago.gov or reach out to us for recommendations for training compliance and Human Resources assistance, or to review worker complaints and assist with investigation.
Execution of Estate Planning and other documents using electronic signatures and remote notarization. The use of electronic signatures to accomplish a variety of legal, commercial activities is not new. Illinois law is also permitting execution of a Last Will And Testament by electronic signature by someone in the testator’s presence, at the testator’s direction, and attested to in the testator’s presence by two or more credible witnesses, can all be done electronically. An electronic Will is a digital asset and any person or business in possession of an electronic Will is a ‘custodian’ to whom safeguard measures apply, and provisions for certified copies of an electronic Will are available. Specific requirements for the remote witnessing, via audio visual communication, apply. These remote witnessing features are not just for Wills, but for almost any document executed in Illinois. In 2023 we will be watching to see how the verification of an electronically signed Last Will And Testament is handled and whether Illinois courts are becoming comfortable with petitions to have an electronically signed Will admitted to probate. We also expect that in 2023 we will introduce clients to our own opportunities to apply these important new changes for the creation of Estate Planning documents of all kinds.
Continuing consideration of new real estate tools and requirements:
Transfer On Death Instruments: We will continue to watch how the changes made by Illinois Real Property Transfer on Death Instrument Act will affect the use of a transfer on death instrument (TODI), which now allows a propertyowner to identify real or commercial property that they wish to be subject to a TODI. Upon the owner’s death the real property identified in the TODI is to automatically pass to the designated beneficiary(ies) named therein, intending to avoid the need to deal with the real property in the Probate Court. If you are not sure how your family may benefit by the use of a TODI, reach out to discuss your plans and questions.
Changes to the Illinois Residential Real Property Disclosure Act, applicable to all parties to residential real estate transactions on or after May 13, 2022. These changes expanded the definition of a “Seller”, removing prior exemptions for some actors. The new requirements also include modifications to the Seller’s duty to include information about whether the real estate is insured against flooding, and include an ongoing Seller duty to update the Disclosure Report until the time of closing, including any errors, inaccuracies, or omissions of which the Seller becomes aware. In fact, even if the Seller makes a supplemental disclosure, the changes to the law allow a buyer to terminate the contract if the Seller knew about the issue but failed to disclose it in the original Disclosure Report, or if the defect cannot be repaired prior to closing, or if the Seller refuses to repair the defect. A Seller can not just fill out the Disclosure Report at the time of the property listing and then stand on that disclosure with no obligation to provide updates. We are pleased to assist real estate Sellers and their brokers with questions about the transaction and questions about compliance.
With Over 180 New or Amended Illinois Laws There Is Insufficient Room To Discuss Each One. If you have an interest in the many new laws or new changes to existing laws, some of which are arcane and some of which may impact you or your business, reach out to us.
