Impact | Business Risk Management Blog

Thirty years ago, recognizing that comprehensive general liability (CGL) insurance policies were “tailor made” to provide coverage for most pollution-related injuries, insurers added an exclusion to CGL policies in an attempt to avoid coverage for such claims.¹

Depending on how the pollution exclusion is read, its breadth may effectively render the insurance coverage under CGL policies illusory. In 1997, the Illinois Supreme Court first construed the standard pollution exclusion and found that its reach is limited to “traditional environmental contamination.” However, the Illinois Supreme Court left the question of what constitutes “traditional environmental contamination” to future courts for determination on a case-specific basis. 

With the rise in GPS technology, employers have unprecedented access to their employees’ whereabouts. For several years, employers have been able to track their field or mobile employees’ locations through GPS devices in vehicles. With more recent technology, employers are able to track locations through GPS apps in employees’ smartphones. But tracking presents risks employers need to understand so they can evaluate whether the potential benefits outweigh the significant risks.

The Department of Labor’s new guidance about what constitutes a “joint employer” should cause businesses that use staffing agencies or other indirect “employment” structures or relationships to carefully review these arrangements.

Specifically, on Jan. 20, 2016, in a departure from what had been somewhat settled, the DOL issued guidance interpreting “joint employer” expansively, making clear that a business may be held liable for Fair Labor Standards Act (FLSA) and Migrant & Seasonal Agricultural Worker Protection Act (MSPA) violations committed by a “joint employer.”

To some it may seem obvious, but before a business can take reasonable steps to protect its trade secrets, it must be able to identify which of its intellectual assets are protectable as trade secrets. A business may not differentiate between trade secrets and confidential information, but there is a difference and a business should differentiate between the two (see our previous post on the differences here). A business may believe that whatever steps it takes to protect its confidential information will be sufficient to protect all of its trade secrets. However, that approach can prove harmful in practice, as the practical measures to protect the intellectual assets may differ depending on the nature of the assets. 

The following is a non-exhaustive checklist of steps that a business might take to protect information it considers to be a trade secret. While these steps will provide a good overview, it is highly recommended that any business consult with an attorney familiar with litigating trade secret matters to develop a robust plan to protect trade secrets that will work for your business.

In all but three states, trade secrets are defined under some variant of the Uniform Trade Secrets Act (UTSA)¹. Trade secret information is a subset of confidential information. All information that qualifies for trade secret protection is confidential information. But not all “confidential information” falls within the coverage of the UTSA.