Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
QUIZ ANSWERS- HR Developments
Workplace Mandatory Arbitration on the Rise
Village of Northbrook Opts Back Into the Cook County Sick Leave Ordinance
                  November 26, 2018


                                                   Follow us on Twitter Like me on Facebook

1.       The National Labor Relations Board now has pro-management majority of 3-1. 

FALSE.  President Trump has named three GOP management-side lawyer to the five (5) member NLRB: Chairman John Ring, William Emmanuel and Marvin Kaplan. There is one holdover Democrat and pro-union Member-----Lauren McFerran.

2.       President Trump has been able to replace a majority of the Regional Directors of the NLRB.

FALSE. These important officials are outside of the President's appointment powers.

3.       A federal law has been passed that negates the effects of future state and local minimum wage raises effective July 1, 2018, so there is no need to keep track of such changes.

FALSE. No such legislation has been adopted, and employers must keep track of all wage and hour laws issued at the federal, state, and local levels as cities and even counties are busy passing new laws or ordinances either through new legislation or by referendum.

4.       The NLRB issued a decision in December, 2017 establishing a tough new standard for "joint-employer" analysis that will make it much more likely that franchisees will be considered as joint employers with their franchisors.

FALSE. The opposite occurred, but that decision was itself 'flipped' and rescinded due to the involvement of Member Emmanuel. The standard is now the subject of rule-making as MMM has reported. The NLRB in its now-reversed Raytheon decision issued in mid-December rolled back the Obama era Browning Ferris standard which had made it much easier to establish joint employer status by showing only that the franchisor, for example, could theoretically control the employees of the franchisee. Now actual control must be established. Proposed rules would re-instate the 'actual control' rule. 

5.       Four states repealed 'right to work' laws in 2018 establishing a trend away from such laws. 

FALSE. The opposite has occurred. The trend is clearly for states to adopt "right to work" laws. Since 2012 Michigan, Wisconsin, Kentucky, West Virginia and Missouri have joined the ranks of 21 other states with such laws.

6.       The majority of the judges in the US Circuit Courts of Appeal have been appointed by GOP Presidents.

FALSE----not quite.   As of this writing there are 84 Democratic appointees and 84 GOP appointees on the Circuit Court benches around the country. The Ninth Circuit covering the West Coast states as well as AZ, NV, ID, HI and AK still has a majority of Democratic president appointed judges------hence the current controversy between President Trump and Chief Justice Roberts. The 1st , 2nd,3rd 4th and the D.C Circuit also still have significant Democratic majorities but Circuits such as the 6th, 7th and 8th have GOP substantial majorities.

7.       The US Senate broke a record in the number of judges confirmed to the US Courts of Appeals during the first 21 months of the Trump administration.

TRUE. President Trump nominated and the Senate confirmed twenty-nine(29) judges to this very important court(with thirteen (13) circuits) that serves as the court of last resort for most federal litigants as very few cases reach the Supreme Court. Also of note, as of November 13, 2018, the Senate has confirmed a total of 84 Article III judges nominated by President Trump including 2 Associate Justices of the Supreme Court , 29 judges for the US Court of Appeals, 53 judges for the US District Courts. There are currently 71 nominations to Article III courts awaiting Senate action, including 13 for the Courts of Appeals, 56 for the District Courts.  There are currently 11 vacancies on the U.S. Courts of Appeals, 112 vacancies on the U.S. District Courts, and 22 announced federal judicial vacancies that will occur before the end of Trump's first term (4 for the Courts of Appeals and 18 for District Courts). 

8.       New York state passed a law, effective January 1, 2018, which provides for paid sick leave for most employees employed in the state.

TRUE. All companies with employees in New York had better have paid heed!

9.       The NLRB issued a decision in December, 2017 greatly expanding the scrutiny of employee handbook provisions that infringe of employees' right to engage in protected concerted activity.

FALSE. The opposite has occurred with the NLRB relaxing the standards for scrutiny of employer handbooks and rules as they arguably impact concerted protected activity.

10.   Now that the House of Representatives is in the hands of Democrats it will be difficult for President Trump to confirm judges for the federal courts and make appointments to the NLRB.

FALSE. The House plays no role in the confirmation process as the Constitution places the advice and consent power in the Senate only.
Hope you did well with the quick quiz! If you are wrestling with any of the issues that this quiz covers or want more information on the answers please feel free to call any of us at PSB.
According to the Economic Policy Institute ("EPI"), employers are increasing adopting mandatory programs which require current and prospective employees to resolve workplace legal disputes through arbitration rather than in the courts.  In its 2018 report, which was issued before SCOTUS' decision in Murphy Oil, EPI found the following:
  • 53.9 percent of non-union private sector employers have mandatory arbitration programs;
  • For non-union private sector employers with 1000 or more employees, 65.1 have mandatory arbitration procedures;
  • For employers with fewer than 100 employees, 49.8% have mandatory arbitration programs; and
  • 30.1 percent of mandatory arbitration programs include class action and collective action waivers.
There are several reasons driving employers to implement mandatory arbitration programs to handle workplace disputes.  It is believed that arbitration of workplace claims is faster and less expensive than litigation in court.  Additionally, it is believed that arbitrators tend to be less biased in favor of employees than juries, and that arbitrators will render fairer awards.  It is also believed that employees are less likely to resort to arbitration than the courts, a belief which is asserted to be true in EPI's recent report.  Finally, with SCOTUS's recent decision allowing class action waivers, and requiring "one-on-one" arbitration only, mandatory arbitration is viewed as a shield against class action lawsuits, and a discouragement to pursuit of individual claims of small economic value.
Given these benefits, is mandatory arbitration with a properly designed class action waiver right for your organization?  It more than likely is.  Call any PSB attorney if you would like to discuss your options in this area.           
The city council for the Village of Northbrook, Illinois has voted to opt back into the Cook County sick leave ordinance effective January 1, 2019. 

This reverses a previous decision to opt out of the Cook County ordinance. The Cook County sick leave ordinance requires employers to provide one hour of paid sick leave for every 40 hours worked to employees who have worked at least 80 hours in a 120-day period in the county.        

Contact any PSB Attorney for more information.  

PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


For more information on the firm, please go to our website at or Lisa at