Tag: Exposure

Is Your Business Litigation Proof?

The heading of this blog is a misnomer. There is no such thing as being litigation proof. Anyone can sue your business for any reason and meritorious or not, you will still have to defend the claim.

Still, there are many important steps a business can and should take to reduce its exposure and put itself in an advantageous position in the event a lawsuit is filed. Here are two simple actions that every business, large and small, should take in order to be a little bit more secure in today’s volatile world.

1. An Updated Employee Handbook

Employee handbooks set forth company policy for all employees to follow. Handbooks are useful reference materials that employees can rely upon to guide their day to day activities. They are also evidence of a company’s practices that can be introduced in the event of a lawsuit.

As a business grows, it should be mindful that different laws will apply to it. For example, once a business employs 15 employees, that business is now subject to the provisions of the Americans with Disabilities Act (“ADA”). Once that happens, an employee handbook should be modified to include language related to the reasonable accommodations that the business will make to comply with the ADA. If an employee with a disability were to file a claim under the ADA, a company with a handbook containing reasonable accommodation language would have a stronger argument that its practice is to comply with the ADA, than a company without such a policy in its handbook.

Also, business owners must be mindful that the law is constantly changing. For example, Illinois just enacted a law that requires an employee’s existing sick leave be granted to employees not only while they are sick, but also to care for sick family members (read more about that law here – http://lgattorneys.com/illinois-employee-sick-leave-act). Illinois businesses should amend their handbooks to reflect the change or discuss the pros and cons of moving away from sick leave/vacation time to paid time off that does not differentiate between sick leave and vacation time.

2. Record Retention Policy

If a company becomes involved in litigation, regardless of the issue, there is going to be a records request for all relevant documents in anyway related to the underlying lawsuit. This often involves emails and other electronic communications.

Having a records retention policy is important for several reasons. First, it ensures that all documents are kept for the optimal amount of time to conduct business without clogging servers or storage spaces. Second, it ensures that a company isn’t holding any documents for longer than legally required. Should a business be subject to a records request, a business is required to produce the documents in its possession. A plaintiff in a suit cannot use a document against you if you do not have it (and are not legally required to have kept it). Third, there are many record retention laws specific to different areas of business. A record retention policy can make sure a business does not violate the law by getting rid of documents too soon.

It is important that the business in question follow its policy universally and not on an ad hoc basis. As long as there is not a litigation hold in place requiring a company to keep all related records, then the company is free to follow its record retention policy without inadvertently destroying evidence and leading to a claim of evidence spoliation.

By consulting with an attorney and preparing an employee handbook and records retention policy, a business can take important first steps toward avoiding litigation, or at least being better placed to withstand a lawsuit if one comes its way.

For more information about developing an employee handbook or record retention policy appropriate for your business, please contact:

Robert Cooper at:

rcooper@lgattorneys.com or 312-368-0100.

Who is In Charge of the Advertising and Social Media Content?

Social media has become one of the biggest and best ways for companies to advertise to their customers and generate new customers. Even smaller companies blast tens or hundreds of messages per week. But who is in charge of monitoring what is said, how it is said, and the legality of what is said? Do all companies have their lawyers reviewing this content? Likely not.

For a large company with an in-house legal department, procedures are often already in place where the legal department routinely conducts a comprehensive review of each piece of advertising and social media content before it is placed into the cyber world for all its customers and potential customers to see. For a small company, this is often not the case.

For many small companies, an internal marketing department is tasked with creating, reviewing, editing and sending out social media and advertising content. Yet, this department may or may not have the legal expertise to ensure that the company avoids claims that another party may construe as false advertising or claims that require legal substantiation under Federal or state law. Further, the company must ensure that their trademark and copyright denotations are used correctly and that the use of any other company’s intellectual property, if applicable, is used with permission or under license. Finally, the company must display all necessary disclaimers. These are just some of the issues that may arise without proper legal review of advertising and social media pieces. No company is shielded from liability that could arise as a result of such advertising and social media communications. With the right steps, companies can utilize an intellectual property lawyer to effectively and easily establish a quick review system in order to reduce their risk and exposure concerning advertising and social media content.

If you have any questions in this area, please contact:

Natalie A. Remien at:

nremien@lgattorneys.com or 312-368-0100

 

DISCLAIMER: This blog post is INFORMATIONAL ONLY, and DOES NOT CONSITUTE LEGAL ADVICE. No company should rely on this or any Levin Ginsburg blog entry or press release as legal advice, as it DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP with any client or potential client. For individualized legal advice, please call Levin Ginsburg and inquire about representation.

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