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Fall is in full swing and I’m trying to not let the Cardinals sweep last weekend ruin my mood. It’s going to be weird next year without Yadi and we may never see someone else hit 700 homeruns in our lifetimes.
Oh well, onto the corn mazes with my daughters. We’re getting to be experts; pretty wild for someone that can’t drive more than 20 miles without Google Maps.
Pour a cup of coffee before you start this one, we’ve got a lot to cover.
Annual Luncheon Thank You
The luncheon is one of our biggest fundraising events of the year. It enables us to do what we do at the capitol to support pro-business policies. A special thank you to all of you that sponsored and attended our annual luncheon last week at the Palmer House in Chicago. The luncheon is always a great opportunity for members of the Chamber to network with each other and hear from some tremendous speakers on relevant topics of the day. This year's attendees heard a great panel discussion on the future of energy as well as remarks from the Federal Reserve.
So, to each of you that supported our event- thank you. For everyone else, we hope to see you next year.
Independent Contractors- Federal DOL Proposes Its Own Definition
This week the US Department of Labor released updated regulations to determine employee or independent contractor classification under the Fair Labor Standards Act (FLSA). https://public-inspection.federalregister.gov/2022-21454.pdf
The FLSA does not define what constitutes an employee versus an independent contractor. As a result, which workers are to be treated as employees has come via court decisions. Courts have devised an “economic realities test” to balance factors to determine whether a worker is so dependent on the business to which they render services that they must be treated as an employee.
The DOL attempted to institute its own rule in 2021 but later withdrew that rule before it went into effect. This new proposal would create a multi-factor test:
- The worker’s opportunity for profit or loss depending on managerial skill
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Investments made by the worker and the employer. Note that the DOL notes that the use of a personal vehicle or vehicle leased by a worker to perform work will generally not be indicative of independent contractor status
- Degree of permanence of the work relationship
- Nature and degree of the business’s control over the worker
- Extent to which the work performed is an integral part of the employer’s business
- Whether the worker uses specialized skills in performing the work
While the proposal is just a proposal, the guidance is obviously designed to decrease the number of workers employers classify as independent contractors and increase the number of workers classified as employees. Don’t forget that this is just one statute in which employment classification matters. Illinois has its own minimum wage and overtime laws, and several of those laws contain different definitions of who is an employee and who is a contractor. The DOL’s proposal does not affect that. It also does not affect the definition of employee vs. independent contractor under all the other federal or state employment statutes, such as the National Labor Relations Act.
The Chamber is still watching closely for further bills designed to curtail the usage of independent contractors to be introduced in Illinois.
Illinois Receives A- Grade in 2022 Digital States Survey
The Center for Digital Government announced the results of its 2022 Digital States Survey, a biennial evaluation of the technology practices of state government in all fifty states, on Thursday and raised Illinois’ overall grade to an A-, in addition to awarding Illinois second place in the Data Driven Government category.
The survey evaluated states based on a set of criteria that included actions supporting state priorities and policies to improve operations or services, hard and soft-dollar savings/benefits, progress since the last survey, innovative and citizen-centric services, and effective collaboration. Those states receiving high marks demonstrated results across all criteria.
Additionally, the state of Illinois was awarded second place in the Data Driven Government category. This recognizes that the systematic use of the state’s data resources supports the strategic plans of agencies and departments for effective service delivery.
The Digital States Survey was designed to highlight best and emerging technology practices that serve as models and/or can be shared across state borders. The survey recognizes these achievements and provides a common reference for all fifty states in the ongoing work of finding better ways to provide public services.
Illinois and the other states will receive recognition during an awards ceremony on Oct. 9. To see the awards article and the 50-state summaries, click here.
US Supreme Court to Hear Big Tech Immunity Challenge
Last week SCOTUS agreed to hear the case of Gonzales v. Google to determine the scope of Section 230 of the Communications Decency Act which generally shields internet platforms from liability for content published by others. Congress passed this law in 1996.
The question now before the court is whether Section 230 protects internet platforms when their algorithms target users and recommend someone else’s content. A divided panel of the U.S. Court of Appeals for the 9th Circuit ruled that Section 230 protects such recommendations, at least if the provider’s algorithm treated content on its website similarly. The majority acknowledged that Section 230 “shelters more activity than Congress envisioned it would.” However, the majority concluded, Congress – rather than the courts – should clarify how broadly Section 230 applies.
Recent BIPA Cases a Mixed Bag
Just once we will get a Tech Council newsletter without discussing BIPA abuses. Today, however, is not that day. Two recent decisions- one a victory and the other a major loss- deserve an examination.
First the bad news… This week a Chicago federal jury ruled against railroad BNSF in the first BIPA case to go to trial. In Rogers v. BNSF, the jury ruled that by collecting truck driver fingerprints as they entered BNSF yards, the railroad intentionally violated the BIPA statute over 45,000 times. An intentional or reckless violation carries a penalty of $5,000 per violation. This means the railroad is on the hook for up to $228 million in damages. BNSF attempted to shift blame onto a vendor serving as an independent contractor. The jury disagreed in less than an hour. BNSF will surely appeal.
I doubt many other companies follow BNSF into the courtroom as it becomes obvious while the previous 1,000+ cases settled out of court. It will be interesting to see what appellate judges think as to the proportionality of the damages to the actual harm caused here.
And now the good… In Svoboda v. Frames for America, plaintiffs sued an eyeglasses maker over the use of their virtual try-on software. The federal court found that this activity was exempt under BIPA’s healthcare exemption. This was true for both prescription and non-prescription lenses as they protect vision.
I’m a big fan of this decision as I was saddened when my favorite sunglasses maker, Roka, disabled this very feature. I bought my first pair after a virtual try-on, and they look and fit exactly like what was depicted. They turned off the feature for my second pair, which I had to send back when my three-year-old told me I looked “’diculous.” Hopefully they turn this feature back on, my ego needs it.
Other Legislative Updates
As a reminder, the General Assembly has released the schedule for veto session. Lawmakers will be back in Springfield Tuesday, November 15 -November 17 as well as November 29-December 1.
View and download the veto calendar here.
Lawmakers have been informed to keep January 4-10 open on their calendars for possible lame duck session dates.
Bills of Interest
No new tech related bills have been filed since September. Note that the Senate has yet to hold a perfunctory session.
Quantum Computing Breakthrough?
I know I always place news links at the end, but James Sherwood of McGuireWoods sent me this Washington Post article that I feel deserving of special mention. Researchers at the University of Chicago are making progress on quantum computing in a partnership with (Chamber member) Argonne Labs.
Why is this important? Well, once this technology is perfected it will create an internet impossible to hack. This is because the photons used in transmitting information cannot be viewed without being altered and therefore destroying all the information. This has the additional benefits of tipping off the user as to the attempt. Think of the advantages this will create for activities like online commerce and financial transactions.
My favorite quote: “There are huge technical difficulties to overcome, but you could argue this could become as important as the tech revolution of the 20th century that gave us the laser and the transistor and atomic clock and, therefore, GPS and the internet,” Steven Girvin, a physics professor at Yale, said about recent discoveries in quantum technology.
Read the full article here.
Articles of Interest
Biden Proposes New Labor Rule Granting Millions of Uber, Lyft & DoorDash Gig Workers Employee Status
Illinois Chamber looks for fiscal discipline in state budget
Chicago fed president sees higher interest rates bringing higher unemployment
The Illinois 48th District Senate race gets heated as candidates lob attack advertising
How John Deere plans to build a world of fully autonomous farming by 2030
Amazon debuts new shopping portal for customers on government assistance
Robotics transforms farming, addressing safety concerns
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