Wednesday, January 17, 2018

Welcoming My New International Students to “Hole”-istic Education

In my law class this morning, I had the pleasure and privilege of welcoming students from Ghana, Uganda, India, Brazil, Italy, China, and the U.S. (three students from Florida, others from Utah, South Carolina, Michigan, and Illinois students from Barrington, LaGrange, Bethlato, Belleville, Murphysboro, Chicago and more).
And now a word for President Trump: Holistic. No, Mr. President, it doesn’t mean a poor, shithole country.
Holistic: ho·lis·tic
Adjective: characterized by comprehension of the parts of something as intimately interconnected and explicable only by reference to the whole.

That “whole” is called the human race, also known as humanity. Whether my students come from my former home town of Barrington, Illinois or poor African nations, we learned today that we have common professional goals. We also speak in accents. As a consequence, we will all improve our listening skills. 

Monday, January 15, 2018

Imagine Segregation

It’s easy to lose sight of how Martin Luther King Jr. changed America.
Simply from a labor perspective, here is a sample of union bylaws and practices from 1910-1970— imagine that long span!—
From a black scholar and activist in the early 1900s, W.E.B. DuBois, The Negro American Artisan 87-95 (1912), citing many examples from a national survey of labor unions:
Gardeners’ Protective Union (no Negro members; and officer responded, “I have never heard of a good Negro gardener”)
Machinists’ Helpers and Laborers Union, Washington, Indiana (contracts with employers had language not to hire “any Negroes or foreign men for twenty years”)
Order of Railway Conductors of America (membership limited to “any white man”)
Die and Cutter Makers (“Nothing doing on the Negro”)
Brotherhood of Locomotive Firemen and Engineermen (bylaws and constitution deny membership to Negroes);
International Brotherhood of Boiler Makers, Iron Ship Builders and Helpers of America (“There is a future for the race but it must not be forced on the white race”)
American Wire Weavers’ Association (admits only white males)
The Paving Cutters’ Union of the United States and Canada (“the white man will not, especially in the South, … tolerate the Negro to be on the same level as himself”)
Waycross, Georgia Trade and Labor Assembly (secretary believes that “Negro workers ‘are treacherous and unreliable’”)
The list goes on.
Remarkably, these practices continued after King was assassinated. It took lawsuits to tear down segregation. Examples follow:
Pettway v. American Cast Iron Pipe Co. (5th Cir. 1974) (prior to 1961, company had exclusively black jobs and exclusively white jobs)
Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972) (local union segregated 190 members in an all-white local, and 80 members in an all-black local);
Local 53 of Int’l Ass’n of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969) (mechanics union’s refused to consider minorities for membership)
Local Union No. 12, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO v. NLRB, 368 F.12, 19 (5th Cir. 1966) (union opposed racial desegregation of shower and toilet facilities)
The list goes on.

Will America follow the path of integration or return to segregation? The next few years will be critical.

Sunday, January 14, 2018

White Cotton Balls: A Senator Lies on TV

Sen. Tom Cotton is a smooth talking race-baiting senator from Arkansas—and an accomplished liar. Here is what I am talking about— a quote from a transcript on Face the Nation (Transcript: Sen. Tom Cotton on "Face the Nation," Jan. 14, 2018,
If you change our immigration system to a skills-based system that respects and treats people for who they are as individuals as opposed to residents of a certain country or relatives of certain people in the United States, it's a system that is more in keeping with American values.
How is this a lie? Start with Melania Trump, who came to the U.S. on a fashion model visa, called O-1. 
Fashion models can also qualify for “specialty occupation” visa, called an H-1B3.
Country of origin is immaterial—it is a very high standards skills based visa. 
Melania, by the way, comes from a poor eastern European country, Romania.
The U.S. immigration system has a large number of work visas that are keyed to skills.
Here are two, among more than a dozen:
EB-1: Extraordinary Ability. You must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. No offer of employment is required.
H-1B Temporary Worker in a Specialty Occupation: Individuals in the U.S. to perform professional services for a sponsoring employer in a specific position for a fixed period of time.
Sen. Cotton knows this. He is a Harvard educated lawyer who is playing to his Arkansas base of immigrant fearing, mostly older white constituents.

Tell the truth, Sen. Cotton. We have a skills based system. Yes, it needs reform. It is expensive and out of touch with various labor markets. It encourages people to sneak into the U.S. because it is so cumbersome. But your quote in red text? That took some white Cotton balls.

Thursday, January 11, 2018

“Shithole” Inventor from Uganda Designs Smart Jacket to Diagnose Pneumonia

President Trump, who rejected a bipartisan deal this afternoon because it admits Africans from “shithole” countries, doesn’t need to worry about Brian Turyabagye immigrating to the U.S.  After studying in his native Uganda, Turyabagye went to Great Britain to advance his studies and career in biomedical engineering. 
Turyabagye was deeply motivated by a misdiagnosis in Africa of a friend’s grandmother’s illness. Doctors treated the seriously ill woman for malaria. Later, they realized she was dying from pneumonia. Too late. The woman died.
He and his team of researchers have developed a biomedical kit for early diagnosis and continuous monitoring of pneumonia patients.
The jacket distinguishes pneumonia’s peculiar symptoms for temperature, breathing rate and sound of the lungs – and eliminates most human error, diagnosing pneumonia at a rate three to four times faster than a doctor.
He named it “Mamaope”, or “mother’s hope” – a reference to the 27,000 children who die of pneumonia in Uganda every year.
Read more in the Guardian, here:

Wednesday, January 10, 2018

Old Fossil Fuels Trump's D.C. Swamp

This memo is a wish list obtained by the New York Times, and written to Vice President Mike Pence.

The author is Robert E. Murray, a coal baron who has spent sixty years in the industry largely fighting the United Mine Workers, environmental regulations, “debunking” climate change … and now, paying President Trump’s inaugural committee $300,000 to gain special access to federal regulators.
The NYT reports that 14 major “wishes” have already been granted—for example, withdrawing from the Paris Climate Accord, curtailing carbon gas sequestration programs, and installing Big Coal’s chief lawyer in the No. 2 slot at the Environmental Protection Agency.

Ironically, Mr. Murray needed an oxygen tank at his side when he testified before a West Virginia regulatory panel on clean air.  

How Immigration Proposal Would Hurt Pro Sports

The Republican sponsored RAISE Act, “Reforming American Immigration for Strong Economy,” would cut lawful immigration by about half. 
The proposal would create a “merit” score. The three largest scoring factors would be (1) age [younger applicants get a higher score], (2) English fluency, and (3) education (college degree would get higher scores).
If enacted, this law would screen out hundreds of pro athletes. Why? Because many athletes are not fluent in English; and many do not have a college degree.
(See picture of Albert Pujols— from Dominican Republic— from his rookie year in 2001.)
Let’s break this down by sports. The figures are for 2017 rosters.
Major League Baseball: Only 71% of players were American-born. Players from the Dominican Republic comprise 11% of MLB rosters. Combined, foreign nationals make up 29% of the all major league teams.
NBA: Only 80% of NBA players were born in the U.S. About 12% were born in a European nation. The other 8% come from South American, African, and Asian nations.
NHL: Only 27% of NHL players were born in the U.S.; 46% were born in Canada; and 26% were born in Europe. Put another way: 73% of the league is comprised of foreign nationals. 
NFL: 97% of players were born in the U.S.

Bottom line: Three leagues—baseball, basketball and hockey— would be hurt by the RAISE Act. Perhaps the bill would be amended to create special treatment for these leagues. That would set off a line of industries who would want special treatment— places such as the Mayo Clinic, research universities, but also agricultural employers such as Dole and Cargill, and others, all of whom rely on the legal immigration system for their business operations.

(Source: Gregor Aisch, Kevin Quely, and Rory Smith, Where Athletes in the Premier League, the N.B.A. and Other Sports Leagues Come From, in 15 Charts, N.Y. Times (Dec. 29, 2017) (

Tuesday, January 9, 2018

Immigration Overhaul: What You Should Know about the Gang of Eight

For the time since 2013, there is a small glimmer of hope that Congress and the president will agree to comprehensive immigration reforms.

The “Gang of Eight” was a bi-partisan group of eight United States senators—four Democrats and four Republicans—who wrote the 2013 comprehensive immigration reform (CIR) bill (modeled after a failed bill in 2007, shown above).
Officially, their bill was called the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (commonly known as "the immigration bill").

The Senate passed the bill in June 2013 with broad support— 68–32 (14 Republicans joined all Democrats). The bill never even made it to a committee hearing in the House. 
Speaker John Boehner spiked the bill—in hindsight, emboldening the extreme Tea Party forces that ran him out of the House a short time later, and uncorked our angry politics over immigration.
Who comprised the Gang of Eight? Sen. Michael Bennet, D-CO; Sen. Dick Durbin, D-IL; Sen. Jeff Flake, R-AZ; Sen. Lindsey Graham, R-SC; Sen. John McCain, R-AZ; Sen. Robert Menendez, D-NJ; Sen. Marco Rubio, R-FL; and Sen. Chuck Schumer, D-NY. They are all in office today.
The main points of the compromise bill:
… A path to citizenship for unlawfully present aliens.
… Bolstered border security and visa tracking.
… Permanent residence for unlawful present aliens, only after legal [non-immigrant aliens] waiting for a current priority date receive their permanent residence status (e.g., the 220,000 Salvadorans on TPS status).
… A different citizenship path for agricultural workers through an agricultural worker program.
… Business immigration system reforms, focusing on reducing current visa backlogs and fast tracking permanent residence for U.S. university [student visa] immigrant graduates with advanced degrees in science, technology, engineering or math also known as the STEM fields.
… An expanded and improved employment verification system for all employers to confirm employee work authorization.
… Improved work visa options for low-skilled workers including an agricultural worker program.

At an extraordinary noon luncheon at the White House attended by leaders from both parties, Pres. Trump signaled a willingness to do a comprehensive reform bill. Whether he understands what this means or simply wants positive approval ratings is not important. If this bill gets done along the 2013 (and 2007) lines and is signed, it will help to keep America great. (The legislation would fundamentally alter the president's relationship with his base; hence, little reason to be hopeful for its passage.)

Monday, January 8, 2018

More "Winning" for American Workers

A lockout is a strike in reverse: An employer bars union-represented workers from coming to work. In this case, Honeywell bargained with a union over changes to employee health insurance. The union did not agree to the company’s proposal—but the union did not strike.
In May 2016, the company  locked out workers in Indiana and New Jersey who manufacture brakes for aircraft.
The lockout last 10 months.
During this time, the company hired replacement workers. Production was maintained, and pressure was applied to union-workers who were out on the street without a job because their union did not agree to terms.
After 10 months, the company withdrew its health insurance offer and maintained the status quo policy.
The union filed an unfair labor practice complaint against Honeywell for locking out workers without continuing to bargain.
Today, President Trump’s General Counsel— the chief prosecutor for NLRB complaints against employers and unions—withdrew the union’s complaint without explanation or comment.
If he were telling it from his boss’s point of view, he might have tweeted, “This is more winning for the American worker— just like the workers at the Indianapolis Carrier plant who are being laid off this month.”

Sunday, January 7, 2018

Phasing Out Compassion for Natural Disaster Victims

Tomorrow, the Trump administration will announce whether it will renew visas for nearly 200,000 Salvadorans who have been living in the United States under temporary legal immigration status for nearly two decades. Likely, they will end TPS status for these immigrants.
In 1990, Sen. Ted Kennedy and President George H.W. Bush agreed on an important change to American immigration laws. They believed that there should be a legal process for people to come to the U.S. when foreign nations are rocked by earthquakes (example: Haiti, 2010), hurricanes (Hurricane Mitch, 1998) and civil wars (Serbians and Bosnians, 1990s). This program is known as TPS— Temporary Protected Status. Sen. Kennedy sponsored the 1990 law; President Bush signed it.
Critics say that “temporary” really means permanent, and they are right.
But critics leave out a lot more about TPS. For one, Congress has tried unsuccessfully to allow TPS immigrants to qualify for green cards (creating permanent residency). But more importantly, TPS immigrants have a great track record of being productive members of American society.
An interview in the Miami Herald summarizes the past 20 years of a Nicaraguan man who came to the U.S. under TPS. He started out by cleaning homes. Twenty years later, he owns a cleaning business and employs six people. By 2019, he will face deportation if he doesn’t return to Nicaragua. The story is here (

Since 1990, Republican and Democratic administrations have admitted 437,000 people from 10 countries who were caught in the middle of civil wars or were homeless after severe earthquakes and hurricanes.
A spokesman for the National TPS Alliance says, “Congress should consider the humanity, the dignity, of these families and give them some kind of a solution. There are children who have been born in this country. These are families who have given their best to this country.”

The U.S. Chamber of Commerce opposes the Trump administration’s plan to phase out TPS. They noted, in the aftermath of Hurricane Harvey and Irma that large numbers of TPS recipients work in the construction industries in portions of Texas and Florida hit hard by hurricanes in 2017.

Saturday, January 6, 2018

Trump Tax Buster: Meet Professor David Kamin

A key part of the new tax bill punishes states with high state and local taxes by limiting deductions to $10,000 per year. Prof. David Kamin (NYU Law School, pictured) has developed a strategy for states such as Illinois, New York, New Jersey, and California to offset this part of the law.
A tax law authority, Prof. Kamin begins with a favorite policy of conservatives. Some states use the tax code to shower benefits on religious schools without crossing the First Amendment boundary that requires separation of church and state.
Here’s how states do this. Say you want to send your child to fill-in-the-blank Religious High School. Instead of paying tuition, if you pay the school a donation the state tax law rewards you—not once but twice. 
First, it gives you a credit on your state tax bill; and second, this allows you to use the federal tax code to made a deduction against your federal income taxes.
Let’s use some numbers to illustrate. 
Okay, your tuition was going to be $10,000; but instead you “donated” $10,000 to the school. Now, the state takes a $1,000 off your final state income tax bill—that’s the credit part. Pause…. What just happened here was a backdoor method of state funding of a religious school. 
But that’s not all. Now, as you turn to your federal taxes, you can count the $10,000 “donation” as a deduction against your federal tax bill. That might reduce your federal tax bill by about $2,500.
Bottom line: This disguised religious-school subsidy takes your $10,000 tuition bill, and—voila!— makes it a $3,500 tax saving if you will simply make a donation in lieu of a tuition payment.
Now here’s Prof. Kamin’s pitch to states with high local taxes (that often support public services, including forms of care and education for developmentally disabled children, to cite one example; or more broadly, Medicaid to an expanded group of low income citizens): After taxpayers exhaust their $10,000 limit of federal income tax deductions, allow taxpayers to make a donation to the state—just like the religious-school parent does above-- and get a tax credit for doing so (this would incentivize these "donations"). 
So, if your total state and local tax bills are, say, $20,000, you can donate $10,000 to the state and local (e.g., county) taxing authorities [the difference between your $10,000 federal amount that can be deducted and the $20,000 you owe in total state and local taxes].
What does that do for you? 
It allows you to deduct your first $10,000 of taxes per the Trump tax bill. Then, just like the conservative state treats the disguised tuition payment as a “donation,” it allows the taxpayer in the liberal state to treat her disguised tax payment as a “donation.” 
The net result: The taxpayer avoids the Trump tax penalty that was intended to punish people in liberal states by limiting deductions to $10,000. These taxpayers get the same bang-for-the-buck in taking a deduction as the religious school “donor” (in other words, the Kamin plan simply substitutes the state for the religious school).

Monday, January 1, 2018

Would You Be Okay with Unlicensed Health Care Professionals?

The Koch brothers believe that government excessively regulates labor laws. Yes, they despise unions.
But now that the Kochs have killed labor laws in states such as Wisconsin and Iowa, they want more: They want to deregulate professions that require skills-testing, educational requirements, and state-enforced standards.
In 2017, the Koch’s proxy group—with the Orwellian name, Americans for Prosperity— introduced a bill in the Iowa state house.
As reported by the Des Moines Register: “The bill would have substituted undefined registration for formal licensure for dietitians, athletic trainers, funeral directors, mental health counselors, marital therapists, social workers, speech pathologists and audiologists. It would have ended all licensure requirements for respiratory therapists, massage therapists, hearing-aid specialists, barbers and interior designers… Professionals told legislators Monday that the licensure requirements ensure proper training and oversight. The licenses also are required by many public and private insurance plans that pay for health-care services, they said.
“It’s a safeguard for the public,’ said Kenneth Cameron, a mental health counselor for Aspire Counseling Center in Des Moines. Without licenses, he said, counselors would be laughed at if they tried to submit bills to insurance companies. ‘Are you kidding me? It would never happen.”’ 
Every Democrat opposed the bill. Republicans were split. Thankfully, a sensible Republican tore up the bill in a public hearing. He said he received over 3,500 phone calls and emails—every single one opposing the Koch-sponsored bill.

White Nationalism 2018 Echoes KKK 100 Years Ago

As we enter 2018, it is helpful to recall that the second wave of the KKK surged in popularity from 1915 to 1920—and eventually faded, after a murderous wave of lynchings and voter suppression.
Here is what John Moffatt Mecklin wrote in his seminal study of the KKK— published in 1924— titled The Ku Klux Klan: A Case Study of the American Mind:
“Through its stand for law and order, the Klan gained the support of many of the best citizens made uneasy by the lawlessness of post-war days.”
Specifically, Mecklin referred to agitations by a newly formed civil rights group, the NAACP, that protested for equal treatment of black soldiers returning from battle in WWI. 
Now compare this train of thought to President Trump, who infamously called upon police to treat black suspects rougher. In a speech before a national police organization last summer, Trump delivered a combative law-and-order speech in a New York suburb, calling gang members “animals” and praising law enforcement for being "rough."
“When you see these thugs being thrown into the back of a paddy wagon. You see them thrown in rough. I said, ‘Please don't be too nice,’” referring to police officers shielding prisoners’ heads with their hands.
Interesting to note, all the police behind President Trump during this speech are white.

Sunday, December 31, 2017

Most Important Wage Cases in 2017

I pass along Reuter Legal’s list of top five wage cases of 2017 (with my brief comments).
Number 1: Overtime Rule Struck Down:
A federal judge struck down an Obama administration rule that would have made more than 4 million workers eligible for mandatory overtime pay. (The biggest losers in this group are employees who have quasi-management responsibilities— shift supervisors, store managers, etc.— who often work more than 40 hours a week. Now they will lose overtime pay, and be scheduled over 40 hours per week with no extra pay.)
Number 2: New Legal Test for “Contract Employees.” Lots of firms lease employees, or take on work performed by the main employer as contractors. Example: In this case, a drywall contractor “subbed” the job to a different firm that performed drywall installation. In these situations, the sub-contractor sometimes fails to pay overtime or minimum wages. A federal court (Fourth Circuit) set forth a new test to determine if the employees of the contractor company is, in effect, an employee of the primary organization. The panel of judges said a fundamental question is whether the companies jointly decide the terms and conditions of employment. That shared control can be direct or indirect, formal or informal, the panel said. (This is a win for employees, but will be challenged before the Supreme Court. Many other industries are affected: cable TV and internet installers, home nurses, delivery drivers and couriers, and a growing number of professional work groups, e.g., “contract” lawyers and doctors and other health professionals.)
Number 3: Salary History Case (Involving Gender Discrimination): Employers sometimes ask applicants or new hires for their salary history. (This is one reason that pay for women consistently lags about 20% behind pay for men in identical jobs.) Initially, the 9th Circuit Court of Appeals found no bias when employers ask for salary history. But later in 2017, it said it will reconsider this ruling. (Federal courts have split on this issue. Perhaps in 2018, the Supreme Court will decide the matter.)
Number 4: Franchise Employees Get Paid: A federal court in California approved a $3.75 million deal between McDonald’s and about 800 employees of a California franchisee who said the company was jointly liable for wage-and-hour violations. (The key here is that company is paying for violations committed by franchise owners. These are not company-owned restaurants. The ruling was based on a potent state wage-and-hour law, not a federal law, so this outcome is beyond the reach of the Trump administration.)
Number 5: Uber Drivers Allowed to Sue as a Group (Class Certification): Uber wanted to force drivers into arbitration, where their wage claims would be handled individually. A federal court rejected Uber’s case for arbitration. (Now the matter will proceed in open court, where a class of Uber drivers will get a better chance of winning or negotiating a settlement.)

Tuesday, December 26, 2017

Should Nikki Haley, Melania Trump and Baron Trump Be Deported?

In 2018, we will hear new political discussions about “reforming” our legal immigration system. This will dredge up the worst ideas America has ever produced for immigration.  See the picture above as an example.
By some (not all) definitions of the term, Nikki Haley is an “anchor baby”— the American born child of immigrants. Usually, the term is reserved for children of unlawful aliens; but for some anti-immigrant groups, they mean all nonwhite, non-Christian children born in the U.S. (We’ll get back to this idea in a just a moment for Melania and Baron.)  
Nimrata Randhawa (Nikki Haley) was born in South Carolina in 1972 to an Indian American Sikh father and mother. Her father came to the U.S. on a work visa as a professor. Both parents earned advanced degrees in India. Her mother was allowed to immigrate with him by using a “family preference”— the legal term that some people insultingly call “chain migration.” Nikki is the next link in that chain—and a tremendous credit to American assimilation. Now, ironically, she’s all-good with turning America’s back on global engagement and immigration.
Melania Melanija was born in Slovenia. By former U.S. immigration laws, immigrants from this part of Europe were considered dark-skinned, non-Nordic people and were almost entirely barred from immigrating. She came to the U.S. on a specialized work visa for fashion models (called an O visa). She became an American citizen by marriage to Donald Trump. This form of citizenship will come under attack in 2018 by anti-immigration forces.
By some definitions, Baron Trump is an anchor baby—the son of a darker-skinned immigrant from an undesirable part of the world.

There are millions of people like Nikki, Melania, and Baron. I’m one of them as the son of a Hungarian Jew. Together, we help to make America great.

Saturday, December 23, 2017

Future Harm: If Restricting Legal Immigration Becomes Law in 2018

We will hear from FAIR in 2018 (Federation for American Immigration Reform). Recently, Robert Law, its director, wrote: “Decades of flooding the labor force with low-skilled workers has caused blue collar wages to flat-line or decrease. In many cases, most notably construction, new low-skilled immigrants have replaced blue collar Americans, especially native born minority males.”
The GOP has a bill to dramatically curtail legal immigration.
In a snapshot, here’s how this legislation would likely harm our communities.
The major sports teams in St. Louis and Chicago have lots of players who are here on specialty sports visas—think of Latin American players on the Cardinals, Cubs, and Sox; European and Canadian players on the Blues and Blackhawks; Mirotic on the Bulls.
The Danville VA hospital likely has physicians from Pakistan, India and other nations.
Carle and Presence may have similar physicians who are more specialized and are here on higher-grade visas.
If you’re reading this and live in Chicago or other major city, the same is essentially true.
Next month, the Russian Ballet and symphony are performing at Krannert—all need a work visa to do this.
Research Park at the University has many employees on specialty visas for computer and engineering jobs.
Caterpillar has many engineers from India (I teach some of them)—hired, I assume, because Caterpillar wants the best and these folks fit the bill.
Some of our agricultural depends on legal immigration—Illinois, as the leading pumpkin growing state, brings in workers on specialty visas (or harvests with undocumented workers). Southern Illinois winemakers, apple orchards, and seed companies make occasional but important use of these visas.
Hotels are heavily dependent on a different type of visa for low skilled labor.
And the University has numerous people on these visas, and some bring in large grants that provide jobs for local Americans.
The Cotton-Perdue bill— heavily touted by President Trump— assumes that Americans are being shut out of the market. The proposed law would cut these visas and replace them with “merit” criteria—young age, English fluency, and educational attainment, all good things to value in a labor market.
Okay, the Cubs can put Kyle Schwarber in at catcher and send Willson Contreras home to Venuzuela; and the St. Louis Blues can find an American player for Russian-born Vladimir Tarasenko.
Your grandma and grandpa who live in Paris, Illinois would probably lose their 50 year-old foreign-born doctor who has a practice right there in town. 
American physicians want to work in large cities and suburbs—they no more want to work in rural America than other Americans want to pick tomatoes.
Caterpillar might simply offshore their engineering department, taking it to Mumbai, leaving another hole in the Peoria economy. They're not going to hire more American engineers-- they've already made that decision based on their hiring criteria.
The list goes on.

The last time the U.S. did this was 1924 with a law called the National Origins Act. It was implemented by a nativist president, Herbert Hoover, in 1928. Within four years, 32 percent of Americans were unemployed in the Great Depression.

Friday, December 22, 2017

When CDC Says Fetus, They Mean Baby, Not Abortion

A Facebook friend chided me, stating “HHS was giving CDC political advice, not taking a political stand.” That is nonsense—every branch of the administration is taking a forceful political stand that 60% of the nation disapproves, and 40% approves.
But the exchange prompted me to go online to the CDC and just type in fetus. Here are the main topics:
Before Pregnancy: Tips to Get Ready for Pregnancy
During Pregnancy: Learn How to Give Your Baby a Healthy Start in Life
After the Baby Arrives: How to Keep You and Your Baby Healthy and Safe
Buried in these passages are references to fetal health— I mean, pre-birth baby health.
So, whether you call this censorship or political advice, it’s sick. 
CDC is not an abortion cheerleader group. It wants women and men to plan for getting healthy to bring healthy babies into the world. 
It wants to reduce sickness and disease and addiction in fetuses— I mean pre-born babies. 
It wants a lower rate of neo-natal deliveries, which are very expensive (thankfully, neo-natal is basically like a term for a fetus—oops, wrong word— that develops in an artificial womb).
But I am thankful for my friend's exchange because now I understand that the Trump administration is not only concerned that CDC is a secret abortion mill run by scientists. 
They also are fierce opponents of cigarettes, as the this CDC photo shows. 
CDC wants people to have healthy babies, raise them free of addictions, get vaccinations, utilize the health care system, especially for preventive care, and stay away from cigarettes and guns, which pose a major public health crisis. The Trump administration loathes some of these basic goals.

Coal in Christmas Stockings for Mining Families

You are looking at a coal miner’s lungs, post-mortem. Last week, the Trump administration issued new regulatory agendas that included a re-examination of an Obama-era coal dust rule from the Mine Safety and Health Administration (MSHA). Mr. Trump said, “Let’s cut the red tape, let’s set free our dreams,” in announcing a package of rule reforms.
In 1969, the U.S. passed landmark mine safety legislation. Congress specifically aimed to cut black lung deaths as much as possible. From 1968 through 2014, more than 76,000 coal miners nationwide died from the disease.
Today, five Democratic senators (Manchin, WV; Brown, OH.; Kaine, VA.; Casey, PA.; and Warner, VA) wrote to the Trump administration seeking to maintain the tougher air-quality rule. See here
Republican senators from these states did not sign the letter (Capito, WV; Portman, OH; Toomey, PA.).
Coal mining will never be a safe occupation. But the Obama rules for air quality made the job a little safer by cutting allowable dust by 25% over the previous rule.

Daily Mercury: Former coal miner Percy Verrall, with black lung disease after decades of working in coal mines.
No one should be dying for a job.

Picture This: Trump Labor Board Approves Rule for Firing Employees Who Use a Camera

In 2012, a union for Boeing workers filed a complaint alleging that the company violated employee rights by photographing union marches. The union also challenged the company’s blanket rule barring workers from using personal cameras at work without a special permit.
On December 15th, the National Labor Relations Board approved the company rule on a 3-2 vote (with Pres. Trump’s new appointees tipping the balance).
Earlier, a judge ruled against Boeing. Applying a long-standing precedent, Judge Etchingham said workers could interpret being videotaped and not being allowed to take pictures themselves as interfering with their right to organize and improve working conditions.

The ruling puts workers at an informational disadvantage in our age of social media. With this change in the law, employers can upload photos and video while negatively commenting on union marches and protests—but if a worker wants to take a photo of an OSHA violation at work, she can be fired for violating the no camera rule.

Thursday, December 21, 2017

Los Angeles, 1931-1932: A Sanctuary City

A sanctuary city is generally defined as a municipality that refuses to use its police and criminal justice system to aid in deportation of aliens.
This happened in 1931-1932, when President Herbert Hoover’s Secretary of Labor—a staunch opponent of all forms of immigration, legal and illegal— launched a campaign in Los Angeles to deport Mexicans.
Mexican government sources suggest that over 300,000 were repatriated between 1930 and 1933.
Before the Depression,  farmers, labor unions, eugenicists, and racists pushed for restrictions on Mexican immigration.
The American Federation of Labor (AFL) and the National Club of America for Americans thought that deporting Mexicans would free up jobs for U.S. citizens.
They were wrong. After Mexicans were rounded up and deported, unemployment shot up to 32 percent. The problem was a vicious cycle of tariff disputes with trading partners, not immigration.
The federal government, in coordination with local governments, took steps to remove Mexicans. 
In his book Unwanted Mexican Americans in the Great Depression, Abraham Hoffman describes a scene where a federal official who headed the deportation effort leaned on LA police to round-up Mexican men. 
The Chief of Police and LA County Sheriff refused. Their reasoning? They said that the federal plan identified deportees on the basis of skin color only. Local law enforcement feared lawsuits and expenses for false arrests.
The bottom line: Police— then and now— make arrests based on probable cause. Being dark skinned and speaking Spanish are not probable cause for an arrest (a requirement in the Fourth Amendment). That was true in 1931 … and it remains true in 2017.

Can Employers Restrict Job Ads on Facebook to Persons Under Age 40?

The Age Discrimination in Employment Act (ADEA) prohibits adverse treatment of employees and applicants who are 40 years of age and older.
A newly filed lawsuit alleges that T-Mobile US Inc., Inc., and Cox Communications Inc. imposed age limits on who could see recruitment ads, limiting ads to people 38 years old and younger.
Facebook has received other complaints about “micro-targeting” its ads.
This process allows ad purchasers to target based on age, interests, race—and as reported by Westlaw (a legal database), Facebook also allows ads tailored to people who dislike other people based on race or religion (e.g., advertisers who are targeting viewers who dislike Muslims).

That brings me to an inference as to why the defendants here chose the age limit of 38 years and younger. Perhaps they think that they can avoid liability because their ads also took out people who were 39 years of age.
They might get away with that defense. But as we read in our employment law class (Smith v. City of Jackson), the ADEA also allows for disparate impact claims. Choosing age 38 categorically excludes every person ages 40 and above, even if a court finds no specific intent to discriminate against people over age 40.

Legalities aside, this is more evidence that Silicon Valley isn’t the progressive element in society that it projects. If there are buyers with discriminatory intent for their ads, Facebook is happy to do business with them. 

Wednesday, December 20, 2017

Tax Bill Means Less Employment, More Contract Work

More work is being done outside the employment relationship. Uber is a good illustration: Drivers are independent contractors, not employees.
Between 2005 and 2010—last figures I have— independent contractors rose from 30.6% of the workforce to 40.4% in 2010.
Compared to similarly-situated full-time workers, contract workers earned 27.5% less per week.
The new tax bill accelerates that trend. Here’s how.
Today, a worker pays the same percentage on income, whether it is taxed as wages or salary earned through employment or earned by independent contracting.
The new bill lowers the tax rate for contract workers with a maximum rate of 21%. For employees, the highest marginal rate will remain around 39%.
Let’s think about stable jobs that pay well: HR professionals, dentists, office managers, and plumbers. Some portion of their income is taxed above the 21% marginal rate—that’s why I am using these jobs to illustrate the change.
The tax code will incentivize them to prefer a short-term “gig” relationship—and even if they don’t want to migrate to contractor status, their employer might try to convert their job to a gig (short-term and/or repeating term job).
That’s because the GOP has related legislation in the wings, called the New Gig Act. It will provide employers with tax incentives to shift employment-based jobs to “gig” jobs.
Why would any employer want to make that change? They would shift all the Social Security and Medicare tax burden to the individual (that’s a huge break); nullify the ACA employer health care mandate, avoid worker’s compensation, and other employment laws.
In other words, the tax bill that will formally pass today marks a milestone: We will have fewer employment-based jobs, and more contract-based work.

The GOP will sell this as a modern-day update from antiquated labor and employment laws, i.e., in the old economy. But for workers who shift from jobs to gigs, it will be a lifetime of work-based insecurity and fewer safety nets. They won’t work paycheck to paycheck—but gig to gig.

Tuesday, December 19, 2017

No-Vax Vegans and McVegan Burgers

Last Thursday, a federal appeals court issued an important ruling in a case where a hospital employee refused to be vaccinated for the flu because of his vegan beliefs. Vegans are people who strictly refuse to consume or use animal-based products. This includes vaccines that require the use of eggs in the production process.
Paul Fallon had worked at Mercy Catholic Medical Center for several years as a mental health professional. For the first few years of his employment, he was granted an exemption from the vaccination requirement.
However, in 2014, the hospital narrowed its exemption policy. Instead of having a creed or belief, a person seeking an exemption would need to provide a letter from a clergyperson to support his or her request.
Fallon did not belong to any religious organization. Eventually, he was fired for not being vaccinated.
The Third Circuit Court of Appeals upheld a lower court ruling that dismissed his religious discrimination lawsuit under Title VII.
Circuit Judge Jane Richards Roth said that Fallon's beliefs were not of a religious nature and did not seek to address “fundamental and ultimate questions having to do with deep and imponderable matters.” Instead, Fallon’s beliefs reflected a “general moral commandment.”
Also, the opinion said: “Generally, he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid the vaccine.”
Hospitals require vaccines to limit the spread of contagious disease by their staff.
In other vegan news—entirely unrelated to employment!— McDonald’s is rolling out the McVegan burger in Norway. Many food companies are offering vegan alternatives. Paul Grimwood, CEO of Nestle USA, said in an unrelated context that “as many as 50% of consumers now are seeking more plant-based foods in their diet and 40% are open to reducing their traditional meat consumption.” This means cutting out all meat, milk, eggs and animal products.

My personal view? The appeals court ruled and reasoned properly—and so has McDonald’s. And FWIW, I get vaccinated but also want to try a McVegan burger. Feel free to share your views and tastes on FB or at

Monday, December 18, 2017

Sutherland Springs Massacre Update: Lawsuit Filed by Victims’ Surviving Family

Gun control laws don’t work. The NRA is blocking further restrictions.
Enter tort law. This is a miscellaneous category of lawsuits under civil law. That means that defendants do not face criminal sanctions, but might be ordered to pay damages.
You know about these types of tort actions already. Example: Negligence. Case in point: A surgeon negligently fails to remove sponges in a patient causing pain and suffering, and damages.
Joann Ward and her daughters Emily and Brooke were shot and killed by Devin Kelley.
Their survivors are suing Academy Sports & Outdoors, the large sports equipment store in San Antonio that sold Kelly the Ruger AR-556 used to kill 26 people at Sutherland Springs First Baptist Church on Nov. 5.
The lawsuit filed last week in a state district court in San Antonio seeks at least $25 million, accusing the store being negligent in allowing the sale of the Ruger AR-556 used to kill 26 people at Sutherland Springs First Baptist Church on Nov. 5.
The lawsuit claims that when Kelley purchased the weapon in a San Antonio store, he entered an address in Colorado Springs on the federal Firearms Transaction Record form that needs to be completed before a firearm can be sold.
He obtained the weapon in Texas but it should have been sent to his Colorado residence, where he had been stationed with the U.S. Air Force, the lawsuit said.
Houston Attorney Jason Webster said, “The Ruger should have never been placed in Kelley’s hands in Texas.”
The legal significance? Tort law is sometimes a valuable “safety valve” in a legal system where lawmakers refuse to pass statutes.
Broadly speaking, if this lawsuit is successful it may discourage retailers from selling assault style (and other) weapons.
This process is slow, hit-and-miss, and patchwork in quality.
But it can achieve limited successes.

Example? Tort litigation in the 1990s led to a massive settlement of cigarette smoking claims. The settlement didn’t end cigarettes, but then again, few people are suggesting a ban on guns— just limits on assault weapons and accessories and further controls on people who are unfit to have guns.

Sunday, December 17, 2017

Can Trump Legally Censor CDC Words?

Image result for seven dirty words
It’s fitting that the answer to this question traces to George Carlin, the iconoclastic comedian who coined seven dirty words (shit, m****f*****, tits, c***s*****, and others). After a radio station played his famous monologue, inspiring a 12 year old boy to share with his father, the dad filed a complaint against the broadcasting company for indecency. The FCC censured the radio station with a letter of reprimand. The radio station took the case to the Supreme Court and lost in F.C.C. v. Pacifica Foundation.
The Court required the FCC to demonstrate a compelling government interest in regulating these dirty words. The FCC argued that one compelling interest was shielding children from potentially offensive material, and second, ensuring that unwanted speech does not enter one’s home.
The Court also said that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience. The ruling gave the FCC leeway to determine what constituted indecency in different contexts.
If it is true that the CDC cannot use words such as “diversity,” fetus,” “transgender,” and “vulnerable,” it would present an unprecedented expansion of government censorship. The Trump administration could not meet the compelling interest test.  These words are not obscene or indecent-- or anything else that approaches a compelling interest.
Suppose the administration took a different tack by firing employees who used these words in official documents. This would trigger a different test under Pickering v. Bd. of Education. A high school teacher was fired for publishing a letter in the local newspaper that criticized the board for favoring sports over education.  
Pickering recognizes that public teachers do not relinquish First Amendment rights in their employment, but also enables a government employer to regulate the speech of its employees differently from citizens.  Courts must weigh the competing interests of public employees and their employers.
The Pickering test would not fit clearly this scenario. It says: “To arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
To prevail, the administration would need to prove that its word ban promotes the efficiency of government operations. CDC employees be in the legally awkward position of arguing that the administration was denying their right to political expression. That’s because they don’t view these as political words but simply descriptive terms for their work—an area over which the government, as employer, as a presumption to regulate speech in the workplace.
Given the Orwellian nature of the Trump word ban, my educated guess is that courts would apply the Pickering balancing test in favor of an employee who would be disciplined. But given the wide deference that courts afford employers in this guess, my prediction is not a sure bet.
Finally, there is this possibility: A citizen might sue, claiming a First Amendment right to be free from political suppression of terms such as “fetus.” The Trump administration would face an uphill climb in defending a ban on a term that appears in regular and medical dictionaries.

Thursday, December 14, 2017

No Moore, Please: “The negro slave of the South was housed and fed, the white trash of California is placed beneath the Mongolian.”

Roy Moore lost the Senate election, but his broad popularity suggests that many people support his racist ideas. Moore turned heads this week when he justified slavery: “I think it was great at the time when families were united — even though we had slavery — they cared for one another.... Our families were strong, our country had a direction.
This is not new. It is a rehash of bigoted reasoning that is ingrained in American thought. Consider this brief excerpt from “progressive” labor leaders who were making the case for an “Asiatic Exclusion Zone”— that is, a lid ranging from then-Persia (Iran), east through India, China, Japan and the Phillipines, limiting immigration to 100 people per nation each year. This was eventually achieved in 1929.

For many years it has been impossible to get white persons to do the menial labor performed by Chinese and Japanese— ‘It is Mongolian’s labor and not fit for whites. In the agricultural districts a species of help has been created, known as the blanket man. White laborers seldom find permanent employment; the Mongolian is preferred. During harvest time the white man is forced to wander from ranch to ranch and find employment here and there for short periods of time, with the privilege of sleeping in the barn or haystacks. He is looked upon as a vagabond, unfit to associate with his employer or to eat from the same table with him. The negro slave of the South was housed and fed, but the white trash of California is placed beneath the Mongolian.

Source: Samuel Gompers & Herman Gutstadt, Meat Vs. Rice: American Manhood Against Asiatic Coolieism: Which Shall Survive? (1902), at p. 14.

Tweet This! President Trump Nominates LGBT Lawyer to Head EEOC

Kudos to President Trump for nominating Chai Feldman to a third term as head of the EEOC (Equal Employment Opportunity Commission)—the agency that enforces anti-discrimination laws related to work.
As reported by Reuters Legal, Feldblum was a professor at Georgetown University Law Center for nearly two decades before being tapped by then-President Barack Obama to join the commission in 2009, and is a noted expert on disability law and LGBT legal issues.
She was also a staff attorney with the American Civil Liberties Union in the late 1980s, and helped to draft the Americans with Disabilities Act.
She also helped draft the Employment Non-Discrimination Act, a bill first introduced in the U.S. Congress in 1994 that would ban discrimination based on a worker's sexual orientation. (The law has not passed despite several attempts.)
Reuters also reports that Feldblum and a Republican Commissioner of the EEOC, Victoria Lipnic, co-authored a report that said workplace harassment is widespread and anti-bias training had been largely ineffective. Lipnic was appointed by Mr. Trump.

This news is worth a tweet.

Wednesday, December 13, 2017

What the Alabama Election Means for President Trump’s Judicial Nominees

Some of the president’s nominees are not controversial and are being confirmed by landslide votes. For example, Dabney Freirich was confirmed on Nov. 27 by a 97-3 vote to serve as a federal judge in California.
However, the man in the picture is a highly controversial nominee. Leonard Steven Grasz is “not qualified” for the position, according to a letter sent from the American Bar Association (ABA) to the leaders of the Senate Judiciary Committee on Monday. 
It’s only the third time since 1989 that a judicial nominee has received a unanimous “not qualified” rating from the American Bar Association.
The controversy is that Mr. Grasz not only believes that Roe v. Wade (ruling that a woman has a right to end her pregnancy in the first two trimesters) is unconstitutional, but he goes further in arguing that any woman who has an abortion should face criminal charges (along with her doctor).
President Trump nominated Mr. Grasz for the 8th Circuit Court of Appeals, an extremely powerful position (one step below the Supreme Court).
Mr. Grasz has worked for “pro-life” groups to enact laws along these lines. In his home state of Nebraska, he was successful in promoting the law. 
The Supreme Court later struck it down.
The day before the Alabama special election, his nomination was brought to the Senate floor. On a motion for cloture (whether to close a filibuster), 48 senators voted for cloture and 47 voted against it. (Read this as 48 Republicans to 47 Democrats.)
To stop a filibuster for any judicial nominee (except the Supreme Court), a simple majority is needed. Until 2013, the practice was 60 votes to stop debate (close debate, or cloture). Senate Leader Harry Reid ended filibusters for all federal court nominees (again, except for the Supreme Court). 
Bad idea. Blame that on the Democrats.
But the election of Doug Jones magnifies the importance of Republicans losing a vote and Democrats gaining a vote. Just look at the close vote for Mr. Grasz.