Friday, October 20, 2017

White Grievance: A Rebuttal to Yesterday’s Tesla Discrimination Post

Yesterday’s post had a high volume of page views. It touched some nerves across the ideological spectrum. The post was shared among friends.
Here is one response from a social media platform. It is unedited and anonymous. I will not denigrate or praise it or otherwise comment. I am posting it because it clearly presents a thesis of white grievance, and I think it is valuable to read and understand it.
I welcome replies to or Facebook posts. Any and all viewpoints are welcome. Just don’t make it personal to me or to anyone who is posting. Let’s learn from each other. Thank you.
What I have experienced is being called any and every racially charged name for a white person you can think of for doing nothing more than beating someone on the basketball court. I've been physically assaulted on the court as well....because I was white. All if this at the finer institute of higher learning that signs your paycheck.
I've been passed over for jobs that I was infinitely more qualifies for so that a business could hire a "minority." At least 3 of those instances I was told flat out I was the most qualified but didn't fit the "profile" they were required to hire.
I also worked for the better part of my youth year around doing the jobs most on the left say "only minorities will do" at an effective pay rate of about $200-$250 a year. Now to be fair that was on a family farm and I wasn't supporting a family on that meager income but the work I did was the same.
So don't assume you have ANY idea what I've been through Michael. Some of the assaults (notice I said some) required medical attention, stitches and xrays. While that is a far cry from whay occurred in your post it happened all the same.

The fact is racism is rampant in this country and while it may not fit your narrative it happens the other way as well. We just don't hear about it as much because it isn't as sensational. And it doesn't fit the white guilt profile that we're told we should feel. I have other friends who have been assaulted because they were white and one that was killed. Now I don't hold grudges and I don't hold an entire group of people responsible for the actions of a few. I also don't believe all people in these groups are racist just because of my experiences.

Thursday, October 19, 2017

“Jim Crow” Conditions Alleged at Tesla Plant

Reuters Legal reports that “Tesla Inc. was hit with a racial discrimination lawsuit in California state court accusing the electric car manufacturer of running a workplace so hostile to black workers that it was reminiscent of the ‘Jim Crow era.’”
In a lawsuit filed on Monday, three former workers claimed that coworkers and supervisors at Tesla's factory in Fremont, California freely used racial epithets and drew racist cartoons. They also alleged that they were punished for complaining about the racially hostile work environment.
The workers also sued three staffing firms that lease employees to Tesla.
In my ongoing research on racial slurs and disparagement of minority workers—including unequal or made-up discipline against these workers— I am documenting a sharp upsurge, starting in the mid-1990s and accelerating in the past ten years.

Wednesday, October 18, 2017

Free Agent Market for QBs in 2017: The NFL’s Case

This is a photo from July 4, 2017, posted by Colin Kaepernick. His teammate, Novarro Bowman, thought it was a “huge mistake” to post this.
In any event, our December arbitration conference will do a mock case of Colin Kaepernick’s collusion grievance. One team will represent Kaepernick; another team will side with the NFL.
Before I started on this exercise, I had a strong hunch that Kaepernick was being boycotted but thought proving collusion would be difficult.
But when you look at all the free agent QB signings since the 2017 league season opened in March, you won’t find any high-priced deals. Kaepernick supporters are right in arguing that he’s way better than 80% of the quarterbacks on this list—but you also have to look at how cheaply these quarterbacks signed. Kaepernick opted out of a contract that paid him $16.5 million, meaning he was probably looking for a multi-year deal starting at $20 million per year. That’s not where the market is.
It's also important to keep in mind that teams drafted four quarterbacks in the first two rounds. That would weigh on the free agent market.
Mike Glennon, Bears: Glennon got a three-year, $18.5 million guaranteed contract.
Jay Cutler, Miami: $10 million, one year.
Brian Hoyer, 49ers: The 31-year-old journeyman played for new Niners coach Kyle Shanahan in Cleveland and comes at the low price of just $10 million guaranteed for two years.
Nick Foles, Eagles: Signed for 2 years, $7 million guaranteed.  
Josh McCown, Jets: The soon-to-be 38-year-old McCown heads to New York on a one-year, $6 million deal. 
Landry Jones, Steelers: Pittsburgh is happy having Jones backing up Ben Roethlisberger, and vice versa. That pretty much sums up his two-year, $4.4 million deal.
Matt Barkley, 49ers: Barkley signed for 2 years, $4 million.  
Ryan Fitzpatrick, Buccaneers: Signed in 2017 for $3.68 million. Fitzpatrick set a Jets record with 31 TD passes in 2015. He has thrown 166 TDs to 133 picks in his career and has started 116 of 127 games.
Mark Sanchez, Bears: Sanchez signed a one-year, $2 million deal.
Geno Smith, Giants: Smith signed for $1.2 million.
Josh Johnson, Giants: $1.015 million.
EJ Manuel, Raiders: Manuel signed for $800,000.
Kellen Moore, Cowboys: Moore signed for $775,000.
Aaron Murray, Rams: $615,000.
Chase Daniel, Saints: Signed for $900,000 .
Case Keenum, Vikings: $1.9 million.
David Fales, Dolphins: $690,000.
T.J. Yates, Bills: Injured reserve; released.
Matt McGloin, Eagles: $25,000 Workout bonus.
Blaine Gabbert, Cardinals: Gabbert, a 2011 first-round pick, has lost starting jobs in Jacksonville and San Francisco, going 9-31. He went 1-4 last season before being replaced by Colin Kaepernick. Gabbert was much better in 2015, completing a career-high 63.1 percent of his passes in eight starts for the Niners. Gabbert signed for $900,000.
Austin Davis, Seahawks: $885,000. 

Tuesday, October 17, 2017

Attention, Female Employees: “No More Babies”

An orchid grower has paid $110,000 to settle a pregnancy discrimination complaint.
Yanet Perez filed a discrimination charge after the company, upon learning that she was pregnant, forced her to take a leave and denied her requests to come back to work in 2014.
The company allegedly held a staff meeting in 2014 after Perez told her supervisor she was pregnant. At the meeting, some workers allege that they were told not to get pregnant in these terms: there should be “no more babies”; there were “too many babies coming”; and “pregnant, bye.”
The Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy and related medical conditions (including discrimination related to nursing).
In making the six-figure settlement, the company denied all the allegations.

Here Is Kaepernick’s Grievance: Why It’s Probably a Loser

There are real problems with the grievance.
For one, it reads like a political manifesto. I am personally sympathetic to Kaepernick’s protest and his method. But winning a grievance will take evidence of collusion, not political persuasion.
It’s telling to note what is missing from his grievance.
It makes no specific mention of two or more teams that have colluded.
It makes no mention of quarterback vacancies in the period from September 22, 2017 through its October 12th filing date (before Aaron Rodgers was injured).
The September 22nd date is important because his primary theory is that President Trump’s racially provocative message— clearly aimed at Kaepernick— starts the clock on his grievance.
It makes no mention that he opted out of his contract at San Francisco on March 3, 2017, as was his right.
In 2016, Kaepernick restructured his deal with the 49ers. He gave up $14.5 million in injury guarantees for the ability to opt out of his deal at the end of the year. 
The point is that he terminated his employment with the 49’ers, not the other way around. And the next point is that he walked from a $16.5 million salary (but no money guaranteed).
Do I think that teams want to avoid him for political reasons? Certainly.
But it’s also important to realize that other players are vocal about racial injustice and taking a knee during the anthem. Michael Bennett, defensive lineman for Seattle, was vocal about being racially profiled by police officers in Las Vegas on August 27th, and had a gun pointed at his head—for no valid reason. Bennett remains employed and his team management supports his viewpoint.
The NFL will tell its story about Kaepernick outside of public view. Part of their proof will likely be the money that Kaepernick was seeking when he opted out of a very good contract at San Francisco.
Another part of the story from the NFL side? Kaepernick ranked 23rd among QBs in 2016 among 30 who had season-long totals. In other words, his performance was in the bottom quartile-- not statistics that will get a QB a multi-year contract north of $16.5 million per year.

At least part of the story behind Kaepernick’s unemployment is that he over-estimated his market value (he seems to believe he is worth substantially more than $16.5 million a year). If an arbitrator believes that’s part of the story, it will add to Kaepernick’s proof problems.

Sunday, October 15, 2017

Several Hurdles Facing Colin Kaepernick’s Collusion Grievance

Collusion is an agreement among two or more people to prevent a person from exercising a contractual right. 
Colin Kaepernick has filed a grievance (a complaint) under the NFL labor agreement. Essentially, he is arguing that teams have colluded to keep him out of the NFL because of his kneeling during the national anthem.
Some brief points.
First, the reason for collusion would be irrelevant. If owners agreed that they did not want to hire a left-handed quarterback—a silly reason— that would still be collusion. 
Second, proof of collusion is very hard. Kaepernick needs to show that two or more teams agreed not to hire him.
Third, he opted out of his contract last year. He thought he could get a better contract. That’s on him. The point is that no one cut him—he overestimated his value. We've never heard his asking price-- and it's likely to be somewhat embarrassing for him because he opted out of a decent contract.
Fourth, there is a 50-day limit on filing a grievance. Why didn’t he file last year? He may be able to argue that he has come up with proof in the last 50 days. Possible? Yes. Likely? I doubt it. Why would teams that are heavily pre-occupied with their roster problems—and competing against each other—and facing many players who are taking a knee— sit around and blackball Kaepernick in the last 50 days?

Here is the contract language. Tell me what you think at

Section 1. Prohibited Conduct: 
(a) No Club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making as follows: (i) whether to negotiate or not to negotiate with any player; (ii) whether to submit or not to submit an Offer Sheet to any Restricted Free Agent; (iii) whether to offer or not to offer a Player Contract to any player; (iv) whether to exercise or not to exercise a Right of First Refusal; or (v) concerning the terms or conditions of employment offered to any player for inclusion, or included, in a Player Contract. 
(b) Any approval or disapproval of a player’s contract by the Commissioner, or any communication thereof, timely notice of which is provided to the NFLPA cannot be the basis of any claim of collusion. The NFLPA or the affected Player shall have the right to appeal the Commissioner’s disapproval of such player contract to the System Arbitrator, pursuant to Article 15 and Article 14.

Section 2. Other Club Conduct: No Club may have a policy not to negotiate with, or enter into a Player Contract with, any player who is free to negotiate and sign a Player Contract with any Club, on any of the following grounds, if such policy is inconsistent with Section 1 above: 

(a) that the player has previously been subject to the exclusive negotiating rights obtained by another Club in a College Draft, by virtue of a Required Tender to a player with less than three Accrued Seasons, or a Franchise Player designation; or 
(b) that the player has refused or failed to enter into a Player Contract for a prior season containing a Right of First Refusal or an option clause (i.e., any clause that authorizes an extension or renewal by a Club of a Player Contract beyond its stated term); 
(c) that the player has become a Restricted Free Agent or an Unrestricted Free Agent; or 
(d) that the player is or has been subject to any Right of First Refusal.

Bravo, Attorney General Sessions: Enforcing Law for Murdered Transgender Student

Kedarie Johnson was a 16-year-old student when he was shot to death last year in Burlington, Iowa. Johnson (pictured) was gay, identified as both male and female and occasionally went by the name Kandicee.
On Friday, the U.S. Justice Department filed papers in an Iowa county court to say that Christopher Perras, a U.S. Justice Department lawyer, will serve as a county prosecutor in the case.
That almost never happens. It indicates AG Sessions’ intent to lend the DOJ’s experience in enforcing The Shepard-Byrd Hate Crime Act.
The symbolism is important.
Question: Will the DOJ attorney’s close involvement with the case enable the federal government to press federal hate crime charges? That remains to be seen, but that’s the implication. For now, it appears that the evidence is too ambiguous but to make that charge-- but that could change with this lawyer's cultivation of facts.
Last week, our employment law class discussed a leading case from 1875 (U.S. v. Cruikshank) where the Supreme Court struck down the nation’s first hate crime law known as the Ku Klux Klan Act. That case led to another bad case (U.S. v. Hodges, 1906), where the Court ruled that the federal government had no constitutional authority to enforce the Ku Klux Klan Act’s criminal code. 
In that case, white workers who beat and intimidated black workers to the point of forcing them to quit their jobs. They were set free from jail.
In 1968—after a century passed from when Congress enacted the Ku Klux Klan Act, Congress passed the 1968 Civil Rights Act. The law defined a federal crime to kill a person on account of race. In 2009, the law was expanded to cover murders and other assaults, where the motivation is to harm someone due to sexual orientation or transgender status (know as the Shepard-Byrd Act of 2009).
The point? It has taken 100 years to restore the federal law against hate crimes. AG Sessions offers hope that these gains have not been lost. 

Will Muslim Students Be Permitted to Kneel and Pray at a School Flagpole?

Tennessee recently enacted a “student prayer” law. It is likely constitutional because it is only a proclamation, and it applies during the first weekend in August, when schools are not in session. The proclamation is here:
But Kentucky lawmakers have introduced similar legislation. The only difference is that they want this day to coincide with a school day in September.
The core of the legislation is here (quoting from Lexington Herald):
State Rep. Regina Huff’s legislation says the Governor shall “call upon the citizens of the state, in accordance with their own faith and consciences, to pray, meditate, or otherwise reflect upon the students of this state as well as their teachers, administrators, and schools.
Is this constitutional? Likely, if no school official is involved and no school time is devoted to this activity.
Currently, there is a practice in some communities for students to pray at the flagpole—a nice way of tying together Christianity and American identity.

Perhaps a better question is whether a Muslim student will be permitted to kneel and pray at the flagpole. 

Friday, October 13, 2017

Message from NFL Player, Russell Okung (OT, Los Angeles Chargers)

If you are looking for an angry, defensive, disrespectful message posted by this NFL star, you will be disappointed. If you are looking for a message that plays to predictable “red” or “blue” themes, again, you will be disappointed.
Here is Russell Okung’s thoughtful message on protests by NFL players. Everything below are his words (taken from players union’s online newspaper, The Players’ Tribune).
Fellow NFL Players,
By now you’ve likely read the commissioner’s letter addressed to NFL executives and have seen reports about the league’s upcoming meetings. It occurs to me that any attempt to respond collectively as players is complicated by numerous challenges, and that our options for speaking with one voice are limited. This means we can either wait until we receive our respective marching orders, speak up individually, or find a way to collaborate and exercise our agency as the lifeblood of the league.
Over the past few years, I’ve thought a lot about how we might have a meaningful conversation together. I wish it were as simple as public perception would have you believe — that we all have each other’s cellphone numbers and hang out together on a regular basis. Since that’s not the case, I hope this letter reaches as many active players as possible, and serves as a catalyst to convene a conversation among those of us who are uncomfortable having important decisions made without us in the room.
Things have clearly gotten out of control. As a pragmatist, I will admit, I initially doubted the merits of Colin Kaepernick’s protest and questioned his strategy.
I was wrong.
There is now no doubt in my mind that what he did last season was a courageous, prophetic, self-sacrificial act that has captivated a nation and inspired a powerful movement.
If I had his cellphone number, I would tell him that.
As Kap’s message has now been distorted, co-opted and used to further divide us along the very racial lines he was highlighting, we as players have a responsibility to come together and respond collectively. But how can this happen practically?
The uncharted territory we’re dealing with requires us to innovate if we are to effectuate any meaningful change — if we are to look back at this moment with pride when our grandkids ask us one day how we responded to the circumstances we now face. This requires some sober self-reflection and a greater awareness of what is limiting our effectiveness.
Ours is a unique dynamic. The NFL Players Association, for better or worse, is limited in its capacity to “unify” our interests. Unlike a traditional labor union, the foundational nature of our relationship to each other is defined by fierce competition and learned opposition. The system is designed to keep us divided and to stifle our attempts to collaborate — we’re made to see each other as the enemy. Indeed the system celebrates when it puts us at odds with one another.
As a competitor who loves the game, I can appreciate this aspect of the league to a certain extent. But the current controversy is obviously about much more than football.

Currently, the will of the players who align with Kap’s message is being diluted. Rather than our collective voice prevailing in a way that spans the league, you are seeing individual teams respond separately to the protest in 32 different ways. It’s telling that these decisions are being made at the team level and not being driven by the interests of the players collectively. Some teams are standing and locking arms. Some are staying in the locker room. And some are now being banned from protesting altogether. While many of us can be grateful that our ownership groups don’t take direct orders from the President, we are also aware that the owners are much more united than we are as players.
Player protests have caused such a disturbance that the NFL has now chimed in and prioritized discussions on this topic for next week’s meetings.
Owners have the ability to quickly and efficiently communicate, collaborate and align their objectives to serve the broader interests of the shield. By and large, they are carrying out a strategy to this end, regardless of how it impacts us as players and regardless of how much it reflects our actual will. I don’t mean this to sound disparaging or suspicious of all NFL owners. Again, it’s just an observation of how the system is designed. It is, in many ways, what we all signed up for.
While I don’t have all the answers as to how to ensure we are not robbed of this moment, I am convinced that we will never make progress if we do not find a way to come together and take action that represents the will of the players. What we have is strength in numbers. But our strength is currently not being leveraged because we have no means of direct communication that is not — in some way, shape or form — controlled, monitored or manipulated by outside forces.
So here’s my idea: Let’s open up a line of communication just between us, and be ready to respond with one voice as players. Let’s transcend the “natural” divisions that have been defined by the league and sanitized by a fictional narrative of competition above all else.
Now, I can’t exactly put my phone number or email address in this letter for obvious reasons. But there’s another way to start moving things forward. I’m going to initially lean on Twitter, the preferred social tool of our day, and attempt to connect us with each other. If you follow me (@RussellOkung), I will follow back and DM you next steps for collaboration. From there, we can build out and discuss options for a better way to communicate with one another going forward.
Again, I don’t have all the answers, but I’m hoping to help facilitate some practical next steps by first addressing our limited ability to communicate.
I look forward to hearing from you on the President’s favorite medium. Until then, stay strong.
Much love,


What If Some NFL Players Strike?

There are two terms for this type of strike: wildcat (unauthorized by the union) and quickie (intentionally short duration, technically called a partial and intermittent strike). 
But here’s the bottom line: The National Labor Relations Act would not protect either type of strike.
That means striking players could be fired and not have a legal remedy.
But in the NFL, it’s not that simple. A team, not the league, employs a player. 
If a high-quality player is cut, the team often owes a guarantee. Striking for racial justice would not trigger a morals clause.
Apart from that, a cut player can be signed by other teams—and that includes the firing team’s main rivals. The player would be signed on the cheap, meaning the acquiring team would probably have space under the salary cap.
Okay, you say—teams would be really mad at players and boycott all the strikers. 
Team boycotts of players are subject to extremely strong limits under “anti-collusion” language in the collective bargaining agreement.
Twenty years ago, when free agent baseball players were boycotted by teams in reprisal for the 1994 strike, an arbitrator ordered $270 million in damages. The teams paid up and ended the boycott.
Where have we seen “quickie” strikes? The airline industry, for one. Flight attendants would spontaneously show up at a gate, start to picket, and flights would be canceled (called CHAOS strikes). The strikers were often women in their 50s who were fully vested and age-service credit qualified in pension plans. They knew they would be fired—and they knew their pensions would not be divested. To the surprise of some (including me), they won their case under the Railway Labor Act.
But the players work under a different labor law, the National Labor Relations Act. Quickie strikes are not protected under that law.

I wrote about this contradictory treatment in “Creating Order Out of CHAOS and Other Partial and Intermittent Strikes,” in Northwestern University Law Review. The research received very few citations. But maybe that article will be relevant now.

Thursday, October 12, 2017

Trump ACA Rollback: What’s So Bad about Competition in Health Care Plans?

President Trump’s order to allow more competition across state lines for health care plans sounds like a very good idea. So what do critics mean when they say that plans are unregulated?
Meet Buddy Kuhl. He drove a truck for Belger Transportation. Belger offered Buddy a health insurance plan.
Buddy had a serious heart problem. His heart doctor recommended surgery.
Buddy’s health insurer disagreed with his treating physician
Under the policy, the insurance company had the right to order two "second opinions." The insurance company chose the medical experts. Both times, the experts agreed with the treating physician—Buddy needed an operation.
But six months had passed by
When Buddy had a pre-surgery check, the surgeon said his heart was too diseased to be fixed. Buddy was put on the transplant list.
While waiting in a St. Louis hospital for a heart, Buddy died of heart failure.
Buddy’s family sued the insurance company, alleging that it substituted a medical judgment for the first doctor who got it right.
And here is the key point: The Kuhls lost because health insurance plans were not subject to government regulation—the plan was free to order two, three, four “second opinions.”

With all its warts, the ACA was passed because too many Americans had Buddy Kuhl experiences with health insurance. 
Under the new rules, Americans will experience more “benefit denial” cases compared to the ACA, where regulations constrain insurance companies (and drive up prices). And without regulations, insurers will be much freer to say no-- and patients and families will have no recourse.
For Buddy Kuhls' posthumous lawsuit (which failed), see 

Wednesday, October 11, 2017

Why the NFL Can’t Suspend or Fine Kneelers

There is some debate as to whether the NFL “Operations Manual” has a rule that requires players to stand for the national anthem and face the flag. Let’s assume the answer to that is yes, the rule exists.
Nonetheless, the league faces serious obstacles in trying to enforce such a standard with discipline.
First, the NFL has a meager management rights clause: “Section 3. Management Rights: The NFL Clubs maintain and reserve the right to manage and direct their operations in any manner whatsoever, except as specifically, limited by the provisions of this Agreement.”
There are more than 300 pages of limitations on management’s rights, including Art. 42, Section 2:
That part says: Section 2. Published Lists: (a) All Clubs must publish and make available to all players at the commencement of preseason training camp a complete list of the discipline that can be imposed for both designated offenses within the limits set by the maximum schedule referred to in Section 1 above and for other violations of reasonable Club rules.”
In the underlined text, I am indicating that management must specify in advance of the season the discipline (penalty) for breaking a rule—not just what the rule is. In this sentence, “complete list of discipline” modifies “designated offenses.”
So, at most, the NFL appears to have a flag rule without a disciplinary schedule and required publication notice. The section can only be read to mean that once the pre-season starts, the only enforceable types of discipline are those that are published by the teams.
This reading is reinforced by Article 46, Section 1(d): “(d) The schedule of fines for on-field conduct will be provided to the NFLPA prior to the start of training camp in each season covered under this Agreement. The 2011 schedule of fines, which has been provided to and accepted by the NFLPA, shall serve as the basis of discipline for the infractions indentified on that schedule.”
Kneeling is “on-field conduct”—and since it’s not a specified offense for the 2017 season, at least in terms of having a negotiated disciplinary scale, punishment cannot be administered now without violating the CBA.
Roger Goodell has already taken massive heat for suspending Tom Brady, and less-so with Adrain Peterson (child abuse, excessive punishment) and Ezekiel Elliott (alleged assault of woman). Those are battles he can win in court. He can’t win the “flag battle”—at least, not until new penalties are posted in 2018.
My suggestion? All teams stay in the locker room until after the anthem is played. Sure, this would be criticized, but it de-escalates the conflict-- a lot.

Tuesday, October 10, 2017

Tournament of Trump IQ Field Announced: Some Democrats Make the Tourney

Adult Daycare Region
No. 1 Donald Trump vs. No. 8 Archie Bunker
No. 2 Joe Arpaio vs. No. 7 Charlie Sheen
No. 3 Bobby Knight vs. No. 6 Bill Cosby
No. 4 Mike Ditka vs. No. 5 Ted Nugent
Sexual Harasser Region                               
No. 1 Donald Trump vs. No. 8 Roger Ailes (Posthumous Entry)
No. 2 Bill Clinton vs. No. 7 Anthony Weiner
No. 3 Harvey Weinstein vs. No. 6 Bill O’Reilly
No. 4 David Letterman vs. No. 5 Clarence Thomas
Soak the Taxpayer Region
No. 1 Donald Trump vs. No. 8 Donald Trump Jr.
No. 2 Mike Pence vs.  No. 7 Scott Pruitt, EPA
No. 3 Tom Price, ex-HHS vs. No. 6 Ryan Zinke, Interior
No. 4 Ivanka Trump vs. No. 5 The Mooch
White Nationalist Region
No. 1 Donald Trump vs. No. 8 Jeff Sessions
No. 2 Steve Bannon vs.  No. 7 Sean Hannity
No. 3 Stephen Miller vs. No. 6 Sen. Tom Cotton (R.-GA)
No. 4 Kris Kobach vs. No. 5 Rush Limbaugh

How Trump Administration Is Changing “Destination Weddings”

Big-event weddings are being squeezed already in the first ten months of the Trump administration.
The problem is that immigration authorities have changed rules so that fewer H-2B visas are available. Those visas allow foreign workers in lower skilled jobs to work in the U.S.
Among the ten leading H-2B jobs, two are tied to big-event weddings: hotel maids and waiter/waitresses.
Who are employers for these jobs? Catering services and resort hotels.
An article in yesterday’s Bangor Daily News discusses the impact of these visa shortages.
Quoting this article:
“We are concerned about the number of workers. The number of jobs available now and the number of people don’t match up,” said Diane Johanson, director of government affairs at the Maine Tourism Association. One in six Maine jobs is in tourism, some 106,000 in 2016 alone.
About 10 percent of the 77,000 employees in restaurant and lodging in the state are visa workers, according to the Maine Innkeepers and Restaurant Associations.

“We already have commitments for weddings every weekend for next fall,” he said. “We can’t stop work on Labor Day. We need the visa situation straightened out.”

Friday, October 6, 2017

Is Dreadlock Discrimination Race Discrimination?

In a recent case, an African-American woman was offered a job as a customer service phone representative—on the condition that she cut off her dreadlocks. She refused. 
The employer said it was a race-neutral grooming policy. 
She said it was race discrimination.
Where did the term dreadlock come from? The woman’s attorneys said that dreadlocks were closely tied to racial identity, including this cultural connection: “During the forced transportation of Africans across the ocean, their hair became matted with blood, feces, urine, sweat, tears, and dirt. Upon observing them, some slave traders referred to the slaves’ hair as ‘dreadful,’” and dreadlock became a “commonly used word to refer to the locks that had formed during the slaves’ long trips across the ocean.”
The federal appeals court said that Title VII--, the nation’s main race discrimination law for employment— defines race in terms of immutable traits, not cultural traits associated or identified with a race.
The court in question is the Fifth Circuit Court of Appeals (Texas, Louisiana, and Mississippi), a court that usually has a conservative take on discrimination laws.

The Seventh Circuit (Illinois, Wisconsin, Indiana) has a broader definition of race. That case involved an African-American woman who was denied a promotion due to her natural Afro. 
My frustration with the court ruling? It was very expansive, delving into the definition and meaning of "race"-- but my question is what is the business justification for a grooming policy where the job is a phone representative? There is no valid justification, which makes it seem like race discrimination.
For more, click here: 

Thursday, October 5, 2017

Legalizing Discrimination Against Transgender Employees

Today, the Justice Department reversed course, stating that the federal law that bans sex discrimination (called Title VII) does not extend to transgender employees.
Courts will have the final say on this—and the last three federal appeals courts to look at the issue said that the law’s criterion— no discrimination “because of sex”— includes discrimination based on transgender status.
So, how exactly does a legal memo say it’s okay to discriminate? 
Here’s how. 
Attorney General Sessions’ staff now says Title VII of the Civil Rights Act of 1964 only prohibits discrimination on the basis of a worker’s biological sex and not their gender identity.
By that logic, it’s not far-fetched to think that the Justice Department will limit Title VII’s protection against race discrimination to people who are 100% African-American or similar—in other words, not to people who are from a mixed racial background. The logic here is that a categorical criterion is limited to one descriptor—for sex, one’s birth gender; and for race, only a "pure" race.

Wednesday, October 4, 2017

The Anti-Female or Pro-Male Google Doc

In our next employment law class, we will discuss sex discrimination— cases where women have complained of gender stereotyping and unequal standards.
We will also read James Damore’s critique of Google’s culture. Damore was fired for circulating his viewpoints among co-workers and has filed a complaint with the NLRB.
I’ve picked three representative quotes about gender from his message, and one quote about his claim that corporate diversity programs stifle conservative views.
I welcome FB posts or emails at If you want to read his entire message, visit
Here are Damore’s quotes:
“We have extensive government and Google programs, fields of study, and legal and social norms to protect women, but when a man complains about a gender issue issue [sic] affecting men, he’s labelled as a misogynist and whiner.”  

“Nearly every difference between men and women is interpreted as a form of women’s oppression. As with many things in life, gender differences are often a case of “grass being greener on the other side”; unfortunately, taxpayer and Google money is spent to water only one side of the lawn.”

“Discriminating just to increase the representation of women in tech is as misguided and biased as mandating increases for women’s representation in the homeless, work-related and violent deaths, prisons, and school dropouts.”
“In highly progressive environments, conservatives are a minority that feel like they need to stay in the closet to avoid open hostility. We should empower those with different ideologies to be able to express themselves.”
Alienating conservatives is both non-inclusive and generally bad business because conservatives tend to be higher in conscientiousness, which is require for much of the drudgery and maintenance work characteristic of a mature company.

Confront Google’s biases.”

Tuesday, October 3, 2017

Fingerprint Theft

Workers have sued their employer, an ambulance company, for collecting biometric information without their consent.
Some background: A growing number of companies use fingerprint scanners as “punch clocks” for employees. But even “exempt” employees—employment-law talk for people such as managers and professionals are paid a salary, not an hourly wage— are “fingerprinted” at scanners for security entrances.
Illinois is among states that strictly regulate this personal information. Why did Illinois pass its Biometric Information Privacy Act (BIPA)? Because lawmakers were persuaded that biometrics present a unique risk for identity theft if not managed appropriately.
The lawyer for workers argues that there is an “ever-present risk of a data breach of [the employer’s] systems exposing defendant’s workers’ biometrics to hackers and other wrongdoers worldwide.”
This looks a bit silly until you realize that your cell phone, PC, home security system and such are increasingly protected by your fingerprint.
Consider ransomware, where a hacker acquires PINS, passwords and other data and extorts a payment for not sharing your data. 
A hacker could lock (or threaten to lock) your secured items, using your fingerprint as a hostage. 
Under BIPA, an employer can be ordered to pay $5,000 for each willful or reckless violation and $1,000 for each negligent violation. This is no small case. The company has 1,600 employees.

Updates will be provided on this case (Casey Lundsteen v. Superior Air-Ground Ambulance Service Inc., case number 2017CH13253, in the Circuit Court of Cook County, Chancery Division).

Monday, October 2, 2017

NRA's Post Las Vegas Message: Stand for the Flag

It’s understandable that on the day that 59 Americans have been gunned down by a sniper, the NRA’s homepage has nothing to do with the Second Amendment. It’s headline message is:
“NRA members stand for the flag, and they want the whole country to know it," says NRA Executive Vice President and Chief Executive Officer Wayne LaPierre. Watch the newest Freedom's Safest Place spot featuring Veteran U.S. Navy SEAL Dom Raso called "We Stand," and look for it in high-profile upcoming television broadcasts.”
Does national mourning for gun violence reflect a left-wing bias—or respect for life?
And does standing for the flag outweigh the fact that 59 Americans were killed by assault weapons?

Will the Supreme Court Revisit its Broad Reading of the 2nd Amendment?

That’s a good question after a mass murderer used battlefield weaponry to slaughter scores of people today.
But the Court’s composition is conservative and likely moving further to the right—so, no, the Court will not likely allow state and local governments to further restrict gun purchase or ownership.
Here is a summary of where we stand today.
The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Four justices—in the minority in Heller v. District of Columbia (2008)— read the grammatical structure of the Second Amendment to limit the right to bears arms to keeping weapons in conjunction with maintaining freedom from an outside oppressor, like English kings were to colonists.
The five justices in the majority said that the text had to be understood by the terms “bear arms,” and in the 1700s, that was open-ended.
Here is the minority-dissenting viewpoint, written by Justice John Paul Stevens:
Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case….  The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

Here is the majority opinion, written by Justice Antonin Scalia:
By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self preservation,” id., at 139, and “the right of having and using arms for self-preservation and defense.” 

Sunday, October 1, 2017

“Scapegoat Cities”: Teaching Our Children (and Ourselves) About Official Hatred of Japanese Americans

In 1942, the U.S. government rounded up Japanese-Americans and forced them to “relocate” to America’s version of concentration camps (called internment camps). I have put relocate in quotes because my Jewish family in Hungary was told the same thing when Nazis forced them from their home in Nyrmada, Hungary in 1944.
By spring of 1943, the U.S. government changed its detention policy: Instead of assuming that every Japanese American was disloyal after Pearl Harbor, the government required these Americans to answers a four-page “loyalty” questionnaire.
Eric Muller, my colleague at the University of North Carolina School of Law, has produced a spectacular blog, Scapegoat Cities, with 20-minute podcasts that offer stunning visual chapters in the lives of our fellow Americans who were subjected to America’s official policy of racism.
If you are a teacher—at any grade level— please take a moment from your busy schedule to click here and see if any material is suitable for your students: The blog is a professional quality narrated production, suitable for many students (guessing ages 10 years old and up).
This is directly relevant today. Steven Miller—a senior White House advisor—is leading a group of policymakers in rewriting immigration laws to require immigrants here and those applying for admission to prove they can assimilate—a nice way of saying pass a political loyalty test as in 1943.
I have taken this image from one of Muller’s podcasts—a Japanese-American Boy Scout parading the American flag with coerced pride, while the government detained him in a harsh camp setting simply because of his race. The photo evokes several comparisons to Donald Trump’s expanding racist vision for America.

Friday, September 29, 2017

Game Show Presidency Continues: Name That Sequel Game!

President Trump slipped into familiar territory over the past day, publicly mulling over firing his jet-setting Secretary of HHS, Tom Price. Late today, The Apprentice show star brought down the inevitable guillotine on Price. But wait … now's the time for a sequel, revolving around the former Cabinet member who just had his sanctimonious head lopped off.
Here are some choices from former game shows. Post your preference on Facebook, or suggest your own ... or send to me at Deal?

Price is Right
Name that Price
Deal or No Deal
The Gong Show
High Rollers
Let’s Make a Deal
Press Your Luck
The $64,000 Question
Truth or Consequences
Are You Smarter Than a 5th Grader?
Family Feud

Is Pledging Alleging to the Flag Compulsory? (No, Here’s the Case)

Those children in the photo are American school kids in 1942. They are giving the U.S. flag the “Bellamy Salute,” named for Francis Bellamy, author of the Pledge of Allegiance.
Jehovah’s Witnesses have a religious belief in the awesome superiority of God that prohibits them from saluting any civil authority.
Their problems began in Nazi Germany, when they were arrested by the thousands for not saluting the Nazi flag or Hitler—curiously, the same type of salute as in the U.S.
Initially, the Supreme Court upheld a legal requirement for school children to salute the American flag (Minersville School District v. Gobitis). In West Virginia, lawmakers required all teachers and pupils "to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly."
In a remarkable change— just two years after the Court ruled that a salute rule was enofceable— the Court reversed itself. 
By then, many Americans equated the “Bellamy Salute” with “Heil Hitler.” Americans also grew uncomfortable with coerced patriotism. Also, the Court had new justices.
Enter Marie and Gathie Barnett, Jehovah Witness students at Slip Hill Grade School near Charleston, West Virginia. Their father instructed them not to salute the flag or recite the pledge.
The school expelled the students.
The Supreme Court ruled that the West Virginia law was an unconstitutional abridgment of free speech in West Virginia State Board of Education v. Barnette
The Court wrote: “Compulsory unification of opinion” was doomed to failure and was antithetical to the values set forth in the First Amendment. The Court eloquently stated: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
The Supreme Court announced its ruling on Flag Day.
Will President Trump challenge this in some direct way? It’s anyone’s guess. The better question is whether Supreme Court justices would stay with the Barnette precedent or revert to the Gobitis ruling.

Thursday, September 28, 2017

High Court Hypocrisy

Justice Neil Gorsuch will likely cast the pivotal vote in a case involving mandatory union dues. Mark Janus is a state employee in Illinois, and represented by a union, AFSCME. State law does not require Janus to join the union, but requires government workers who choose not to join a union to “pay their proportionate share of the costs of the collective bargaining process.” This is called “fair share,” meaning that Janus must pay for the benefits his union bargains for him.
Janus objects to paying any dues, claiming this is coerced speech. He disagrees with the political views of his union; and he does not want to pay to support these views. Under “fair share,” he doesn’t pay anything toward the union’s political campaigns. But the very act of bargaining Janus’s labor agreement is inherently political. In effect, Janus is arguing he cannot be compelled to pay dues that support his union’s so-far successful efforts to ward-off steep wage and benefit cuts proposed by Gov. Rauner.
But Janus is likely to win his high profile case before the Supreme Court. Last year, without Justice Scalia, the Court deadlocked 4-4 in a similar case. Neil Gorsuch is widely expected to break the tie, if he agrees that Janus has a First Amendment right to pay nothing for the union representation he receives.
That Neil Gorsuch will probably cast the tie-breaking vote is a matter of high hypocrisy. On Thursday, he gave a speech at the Washington Trump International Hotel. Not one to fuss over appearances that he favors conservative groups— nor does he mind filling the coffers of the President’s ritzy business down the street from the White House— Gorsuch spoke to the The Fund for American Studies, a conservative group. Only 200 guests attended the invite-only luncheon.
Another Illinois legal case puts the pending ruling in perspective. Patricia Rupcich, a cashier at a Jewel grocery store, was fired for taking a 25-pound of birdseed from the store without paying. She said she forgot to pay for it. The employer didn’t believe her. In any event, the company had negotiated an iron-clad rule with the union: any and all cases of taking merchandise without paying is a terminable offense. The union did not challenge her termination, as it could have, in an arbitration case.
But a federal appeals court ruled that the union violated its legal duty to represent Jewel employees. The court went on to speculate, “a reasonable juror could find on the record before us that had Local 881 followed its CBA‐mandated grievance procedure and proceeded to arbitration, Rupcich would have probably prevailed in getting her job back.” The ruling meant the union would either be required to pay for arbitration, or pay damages to the employee that Jewel fired for theft.
Looking at these two Illinois cases— Janus’s effort to strike down fair share union dues, and Rupcich’s ruling that requires a union to pursue grievances as a matter of law— unions in Illinois will likely have less money in dues, and certainly more expenses for arbitrations that they don’t want to pursue. And the deciding vote in the union dues cast might be cast be a justice who has blurred the line between judicial neutrality and crass politicking.

The Trump Base, Circa 1871

Our nation is discussing fundamental issues of racial equality. I offer a new perspective, the view of Rep. Luke Poland (R.-Vt.). He was a lead sponsor of the Ku Klux Klan Act of 1871. Republicans, at the time, were anti-slavery, pro-civil rights.  
Here is how Rep. Poland explained why the free labor of blacks was a threat to a large segment of poor whites in the South:
A large number of men had lived in idleness, and the fruits of idleness had ripened. The country was full of dissipated horse-racing, cock-fighting, roystering fellows, many of whom by the war had become desperate and dangerous men. The liberation of the slaves had deprived them of their means of living, and they were reduced to the desperate and disagreeable duty of earning it for themselves. That this class could, under the circumstances, tolerate equal rights, civil and political, in a negro could hardly be expected. 
To me, this sounds like the unemployed and under-employed older white males, particularly in Kentucky, West Virginia, Ohio, Michigan, Wisconsin (and other places) who have warmed to anti-immigrant appeals, and now race-baiting. Whether you agree or disagree, I welcome your views at
PS: Teachers/history buffs, if you want to share a fascinating speech from the House of Representatives, click on this link: You can make it more readable by clicking on the page, anywhere. To your lower-left, a file will open. Click on it-- you can enlarge the page, and the middle passage is especially rich.

Wednesday, September 27, 2017

Attention Fox News Viewers: Don’t Be Misled by “FAIR”

Fox News is headlining a slick report by a group with an equally slick name, FAIR (Federation for American Immigration Reform).  The group has published a report concluding that illegal immigration costs Americans $135 billion per year.
The purpose of this post is to publicize FAIR’s unfair (bigoted) views on immigration, dating back to the late 1970s. FAIR was an extreme group until recent events made it fashionable.
The following is a reading from my current course, Immigration, Employment and Public Policy. The source: Imtiaz Hussain, Arizona’s SB 1070, Copycat Bills, and Constitutional Conundrums: Costly Collisions? 6 FIU L.REV. 201 (2011):

“Translating anti-immigration sentiment into legislation has been historically significant. The most significant efforts include the 1882 Chinese Exclusion Act, and the 1924 Immigration Act, both of which targeted Asians, particularly those of Japanese descent. The present anti-immigration uproar can arguably be traced to President Lyndon B. Johnson’s Immigration Act of 1965, which replaced quotas for a preference-based system, but more pertinently, pitted supporters of “successful Euro-American culture” against the growth of non-white groups. Among the leaders of the reform movement was John Tanton, who founded the Federation of American Immigration Reform (FAIR) in 1979 and, together with Jared Taylor and Sam Francis, gave birth to the League for European-American Defense, Education and Research (LEADER).
The founders’ attitudes, opinions, and preferences were given teeth by a second generation of FAIR leaders: Kris Kobach, Michael Hethmon, Dan Stein, Rick Oltman, Donald Collins, and Garrett Hardin, among others. Kobach, for instance, was a senior FAIR counsel before being elected as the Kansas Secretary of State in 2010, ... 

Whereas FAIR’s early leaders focused reform efforts primarily against African-Americans, Jews, and Catholics, the new FAIR generation shifted its attention to Hispanics."

Fair to be F.A.I.R.?

Selected Leaders:
How viewed:
Kris Kobach: *Senior FAIR Counsel, but now Kansas Secretary of State *Harvard thesis advisor: Samuel P. Huntington of civilization clash fame *Department of Justice mentor: Attorney General John Ashcroft, 2001-2005 *Author of SB1070 and several other similar ordinances (in Hazelton, PA, for example)
*Taylor: “when blacks are left entirely to their own devices, Western civilization disappears” *Oltman: They are a “retrograde species of humanity”
John Tanton: *Founder of FAIR (in 1979) *Co-founder of LEADER
*Collins: They sold the United States on immigration “in exchange for more temporal power and glory”
Jarred Taylor: *Co-founder of LEADER:
*Tanton’s mentor, John Trevor, Sr. (who co-authored the 1924 Immigration Act): spoke of a “diabolic Jewish control of America”
Sam Francis: * Co-founder of LEADER
*Tanton: U.S. faces a “Latin onslaught”; Latinos known for “defecating and creating garbage and looking for jobs”; they have “low educability” and a “tradition of mordida”
Dan Stein: *Current FAIR president David Collins: *FAIR leader Rick Oltman: *FAIR leader
*Francis: They carry a “political bludgeon against the United States”
Michael Hethman: *General Counsel,IRLI, legal arm of FAIR *Wrote Utah’s SB1070 copycat bill
Third World:
*Hardin: They are “breeders”, “diluting what we and who we are”

Roy Moore’s Dark Vision of Homosexuality

Roy Moore was twice removed as Chief Justice of the Alabama Supreme Court because he installed the Ten Commandments at the entrance of the court building. This symbol conveyed the idea of a state-sponsored religion, in violation of the First Amendment’s prohibition against government establishing a religion.
His opinion in a 2002 custody case is the subject of this post. A mother of three children sought to terminate parental custody rights of her ex-husband, on grounds that he was whipping and slapping the children. The Alabama Supreme Court ruled that she could not have custody because she presented hearsay evidence of child abuse. Chief Justice Moore concurred, but based his ruling on the mother’s lesbian relationship. Excerpts follow (quoting):
“Alabama's courts, even beyond the context of a custody dispute, have expressed a moral revulsion to homosexual activity, reminiscent of that expressed by Sir William Blackstone in his Commentaries on the Laws of England. Earlier courts refused even to describe the activity inherent in homosexuality, stating that “[the crime against nature] is characterized as abominable, detestable, unmentionable, and too disgusting and well known to require other definition or further details or description.”
“ ‘If any crime, says Bacon, deserved to be punished in a more exemplary manner, this one certainly does. Other crimes may be prejudicial to society, but this one strikes at its being.”
“Natural law forms the basis of the common law. Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures:
“The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity.”
I’ll let readers form their own judgments. I offer a limited legal perspective. Chief Justice Moore cited decisions from the 1700s as authority for denying this lesbian mother’s request. He did not base his ruling on the evidence, but on a 300 year-old view of human sexuality. Mr. Moore is likely the next senator from Alabama.
The ruling is here (C.J. Moore's Concurrence is about halfway down):