In a widely watched 5-4 decision, the U.S. Supreme Court upended the National Labor Relations Board’s long-held position that employers could not require employees to sign class waivers, which would have removed their ability to file a class action lawsuit against their employers. The full decision can be viewed at this link:



May 17, 2018: Today, the Congressional Joint Select Committee on Solvency of Multiemployer Pension Plans is holding a hearing to review the structure and financial outlook of the nation’s Pension Benefit Guaranty Corporation, the federal entity overseeing and ensuring the country’s private pension benefit plans. In previous hearings, the Committee suggested issuing federal loans to shore up the many underwater pension plans in the PBGC’s trusteeship. HesseMartone closely monitors the PBGC’s coverage of pension plans due to its extensive negotiation and work for employers negotiating with labor union pension funds in pension withdrawal liability matters.


The Illinois Appellate Court in the 4th District further refined its Freedom of Information Act (FOIA) view in overturning a municipality’s FOIA denial. The City of Danville denied Defendant’s FOIA request for documents pertaining to City Housing Task Force, and Defendant sought administrative review with AG office. AG found that the City’s denial of the request was improper, as based upon private business reasons. The city was required to comply with FOIA request, as documents responsive to Defendant’s FOIA request concern a matter of public business, as they appear to concern business or community interests and not private affairs. Parties do not dispute that the City is a “public body”. The full opinion is accessible at this link:



On Monday, February 26, 2018, the Supreme Court (SCOTUS) heard oral arguments in the Janus v. AFSCME Council 31. Many expect SCOTUS to rule 5-4 to overturn Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).

Abood allows unions to collect fair share fees.  However, the fair share fees cannot:

  1. be expanded to enable the union to use a portion of them “for the expression of political views, on behalf to political candidates, or
  2. toward the advancement of ideological causes not germane to [the union’s] duties as collective bargaining representative.” Janus v. AFSCME Council 31, 851 F.3d 746, 747 (7th Cir. 2017), citing, Abood, 431 U.S. 235-36.

The issue in Janus, is an employee’s First Amendment Rights.  If employees “who disagreed with the political views embraced by the union” were forced to “be unwilling contributors to expenditures for political views” they disagreed with, the law requiring those contributions would infringe on free speech. Janus, 851 D.3d at 747.

One of the front lines in the ongoing litigation between public employers and unions about dues and fair share fees is Lincolnshire, Illinois. As we mentioned two days ago, Lincolnshire passed a right-to-work ordinance in 2015. Four unions filed suit and the case is on its way to the Seventh Circuit. As if in anticipation of the oral argument in Janus, the Unions struck back in the Northern District of Illinois on February 21, 2018.

Dixon O’Brien and Operating Engineers Local 150 filed a lawsuit against the Village of Lincolnshire (Case No. 18-CV-01310).  O’Brien “objects to the use of his tax money to fund private organizations that lobby and/or engage in other political activities that run directly against his economic interests and his political beliefs.” Complaint, ¶ 25. O’Brien requested a “refund of the portion of his tax money that funded lobbying and other political activities, including but not limited to his share of dues paid to the IML.” Id. at ¶26.

The Plaintiff in the Janus case is arguing that fair share fees inflict the same grievous First Amendment injury as would the government forcing individuals to support a mandatory lobbyist or a political advocacy group.

If SCOTUS overturns Abood, the case to attack against government employers using public funds to pay for membership in various groups (e.g. Illinois Municipal League, United Counties Council of Illinois) is already in the court system and in a Circuit that will be friendly to O’Brien’s argument.

Stay tuned.

Illinois City’s Own Right to Work Ordinance Challenged in 7th Circuit

Last week, Lincolnshire, Illinois defended its Right to Work ordinance before the 7th circuit. A home rule municipality, Lincolnshire is granted additional rights by the state, including the right to enact its own tax revenues within municipal boundaries. It used its home rule authority to pass and enact a Right to Work ordinance in 2016, which would have permitted employees to work in municipal or municipally funded projects in union protected positions without the requirement to join a union. Challenged by four unions, the Court’s decision is expected in a few months.

Decrease in opioid prescriptions for workers compensation cases noted in recent study



TRUMP EEOC GENERAL COUNSEL NOMINEE TESTIFIES AT HER CONFIRMATION HEARING….Mark Zuckerberg wasn’t the only hot seat on Capitol Hill yesterday. President Trump’s nominee for EEOC General Counsel, Sharon Gustafson, a solo employment law practitioner from Virginia, testified yesterday. Her remarks:

Browning-Ferris Joint Employer Fight Lands Back At DC Circ.

Last week, a split D.C. Circuit panel decided waste management company Browning-Ferris’ appeal of the Obama-era expansion of the National Labor Relations Board’s joint employer standard is back on, saying “extraordinary circumstances” trumped a previous order that kicked the case back to the NLRB.

The panel majority granted a motion by the NLRB and rescinded a Dec. 22 order to remand Browning-Ferris Industries of California Inc.’s appeal, which challenged the labor board’s August 2015 decision to loosens its joint employer definition.

SCOTUS Further Defines FLSA Overtime

The U.S. Supreme Court held yesterday that service advisors at car dealerships are exempt from the overtime requirements of the Fair Labor Standards Act. In a 4-5 decision written by Justice Thomas, Encino Motorcars, LLC v. Navarro involves an exemption from the FLSA’s overtime requirements for employees at car dealerships, an exemption that has waxed and waned for much of the 80 years since Congress first enacted the statute. The problem began in 1961, when Congress amended the FLSA to exempt all employees at car dealerships. Five years later, though, Congress narrowed the exemption, limiting it. The coverage of service advisors was disputed from the beginning – as they certainly are not “partsmen,” and also do not seem to be salesmen selling automobiles or mechanics servicing them. Ultimately, the Court decided that the service advisors did not qualify for overtime compensation.

The Court’s full decision is available at this link:


What’s Pension Withdrawal Liability? A Quick Overview

HesseMartone works with many employers navigating difficult labor union pension withdrawal liability matters. The Washington Post’s article on Just Born’s battle in Pennsylvania offers insight into one company’s choices.