Saturday, May 26, 2018

Memorial Day and Patriotism: A Navy Vet Ready to Kneel at NFL Games

Regarding the NFL’s national anthem controversy, a common view among our veterans is that they served our country so that Americans have a right to protest. I appreciate their service and viewpoint. In yesterday’s New York Times, a veteran went further in support of dissent. For Memorial Day, I share Mr. MacKenzie’s brief letter.
If commercial football continues to insist that it knows the only way to respect flag, anthem and country, I would see nothing wrong with taking a knee myself in the stands when they play the anthem or fly warplanes over the field. It would cost me nothing — nothing close to the financial risks of some conscientious athletes.
I love my country and its songs and flag. I am a Navy veteran whose brother died flying in World War II. So I am secure in my own patriotism, unwilling to be instructed about it by a draft-dodging president or his kowtowing sports flag-wavers.

Thursday, May 24, 2018

“Maybe You Shouldn’t Be in the Country”: Precedent for Kicking Out Americans

President Trump joined a hate-filled union leader from the 1880s when he said, with respect to NFL players who remain in the locker room during the national anthem, “maybe you shouldn’t be in the country.” 
Here is what Dennis Kearny, an anti-immigrant labor leader from California, said in 1879: “Before you and the world we declare that the Chinaman must leave our shores.”
Kearny’s statement went beyond immigration. It also applied to boys and girls born on U.S. soil to lawfully admitted residents who emigrated from China.
Wong Kim Ark was born in San Francisco in 1868. His father (Wong Si Ping) and mother (Wee Lee) were immigrants from China. They weren’t U.S. citizens. The 1882 Chinese Exclusion Act made them ineligible for citizenship.
Meanwhile, Wong Kim Ark worked in San Francisco as a cook. He visited China in 1890, likely to find a suitable bride (as was customary).
When he returned, he was denied re-entry. A revised and more restrictive version of the Chinese Exclusion Act made native-born descendants of Chinese subjects ineligible to enter the U.S.
This gave rise to a landmark case involving the Constitution’s Citizenship Clause. The Supreme Court, in U.S. v. Wong Kim Ark, ruled that the guarantee of birthright citizenship “applies to children of foreigners present on American soil.”
President Trump has taken the issue beyond kneeling for the national anthem. 

Even in one of America’s worst moments— the unconscionable internment of Japanese-American citizens— no person was removed from our country.
It's this simple: No one born on U.S. soil can be removed or excluded from this country-- whether they are Nazis, Socialists, Trump or Bernie supporters, liberals, conservatives ... or NFL players who protest during a game.
We are all Americans.
Today, President Trump challenged our fidelity to the constitution's Citizenship Clause, a core tenet of our United States of America. 

Automating Female Labor: The Vegas Labor Dispute

Why is Alexa, the Google-enabled home assistant, female? It might be because we associate “home work” and personal assistance with women.
This type of technology is at the heart of a labor dispute that is boiling over on the Vegas strip between 40 casinos and unions who represent hotel housekeepers, food servers, wait staff, bartenders and the like. Many of these jobs, coincidentally, are female-dominated.
The Jetsons, a satirical cartoon series from the 1960s, fully envisioned this with Rosie, the household robot. Rosie did housework, some parenting, and even handed out pills to the Jetson family. By the way, she was female.
We are ever closer to that reality (see "Dreamer" above, developed for wide-purpose work at the University of Texas lab on humanoid robotics). 
Wait staff can be replaced with kiosks and tablets at our restaurant tables. Vacuum cleaners were automated some time ago. The front desk staff can be cut in half or more with check-in procedures that give you a computer code to your pre-paid room. In effect, the technology that allowed us to check ourselves out at a grocery store can be modified for service in Vegas and elsewhere.
Geoconda Argüello-Kline is the Secretary-Treasurer for the Culinary Union. She says, “A strike is a last resort. We support innovations that improve jobs, but we oppose automation when it only destroys jobs. Our industry must innovate without losing the human touch.”
What about male labor—can it be automated? It’s already happening. Welders are overwhelming male. Industrial welders are a vanishing breed, replaced by ever more sophisticated robots in factories.

Oh my gosh, I better get back to work! This robotic professor, called Prof. Einstein, is pushing for my job! He's smarter than me (having a "vast intellect"), and is programmed with funny anecdotes and exaggerated expressions. Plus, he is much cheaper than me over the long haul. Some of today's teenagers might relate to a humanoid professor better than a human professor.
So, I'm hoping the unions win out in Vegas. They're fighting for themselves-- but the principle of preserving jobs touches on our lives. 

Wednesday, May 23, 2018

What If? NFL National Anthem Brain Teasers

You either agree or disagree with the NFL’s stand-for-the -anthem policy. I have an opinion, too.
But today, we are going to think about some different possibilities. Think about these … drop me a line on FB or at

Brain Teaser #1: Player Shows Support for Confederacy. During the national anthem, a player takes off his helmet, while standing for the national anthem, and is wearing a bandanna with the Confederate flag. President Trump tweets approval; many players and fans express outrage. Should the NFL expand its “flag policy” to ban players from wearing the Confederate flag?

Brain Teaser #2: A wide receiver who scores many touchdowns puts a tatoo on his face showing the American flag being burned. After he scores touchdowns, he removes his helmet and points to his tatoo. President Trump tweets outrage and is joined by many of his supporters. Many other people stand up for the player’s right to bodily self-expression. The players’ union says the league cannot go so far as to ban tatoos because of their political content because the NFL already tolerates a high degree of tatoo shots on camera. Should the league take action against the flag-burning-tatoo player or not?

Brain Teaser #3: In protest of the NFL’s anthem policy, a majority of players declare the fourth Wednesday of every month during the season as a social justice day. They don’t show up for practice—but they do show up to serve as guards at public schools where shootings have occurred. The league fines the players and threatens to escalate discipline. Should the NFL tolerate these sporadic work stoppages or impose discipline?

Tuesday, May 22, 2018

Lawyers Will Fight Mandatory Arbitration on Other Grounds

Yesterday’s ProfLERoy post on mandatory arbitration received 400% more than the usual clicks. So here is a brief follow-up.
Lawyers who represent the “little guy” are not done attacking this unfair method of dealing with employees.
Michael Rubin of Altshuler Berzon in San Francisco, who represents plaintiffs, said yesterday: “Today's decision is not the end of legal challenges to unfair, one-sided arbitration agreements by any stretch.”
One line of attack? Some employers have run into legal trouble because of the way they rolled out new arbitration agreements. Most agreements are signed electronically, and companies must be able to prove that a particular employee actually reviewed and signed an agreement.
Also, arbitration agreements that are complicated, technical, and filled with jargon are being successfully attacked. Why? Because a waiver—a term that means giving up a legal right or entitlement— must be “knowing and voluntary.” Lawyers have lost the voluntary part due to five justices who are biased in favor of corporations (I admit to being biased in favor of regular individuals when it comes to their constitutional right to a jury trial in civil matters); but lawyers are now going after the “knowing” part.
Plus this: If there is a Blue Wave in 2018, look for Congress to pass a law that repeals the various Supreme Court decisions affirming the use of mandatory arbitration agreements (yes, President Trump could veto it). The point is that these rulings are not set in stone. So long as we have checks and balances, change is possible.

Monday, May 21, 2018

Supreme Court Backs Mandatory Arbitration Today— Again

Check your employee handbook—or your offer letter—or your employment contract, if you have one. Odds are that you waived your right to sue your employer.
Suppose your boss or co-worker gropes you. You must take it to arbitration, even though laws provide you a right to file a lawsuit in federal or state court. 
Suppose your employer fails to pay overtime and you’re an hourly employee. Take it to arbitration. The list goes on and on.
Some years ago, Merrill Lynch contacted me to arbitrate an employment dispute. They’d pay me $2,400 a day to hear the case— double the rate I charge to unions and employers. I asked about the other party. I was told the complainant is a female employee who was suing over sex discrimination and a court enforced her arbitration agreement. 
She had no say in my appointment, and she was not responsible for paying me. Merrill Lynch would take care of everything.
I declined the offer because I felt I was being bought, legally bought.
Today, in a 5-4 ruling, the Supreme Court overruled an NLRB decision that said that workers could legally band together in a lawsuit and resist mandatory arbitration. The NLRB ruling applied whether the employees were unionized or not.
There is hypocrisy is today’s majority opinion. These five justices are generally against government regulation, and justify their worldview by saying that individuals should have more personal freedom.
What the five justices don’t say in today’s opinion is that they’re all for big corporate power—and for avoidance of public courts—and for sweeping discrimination under many corporate rugs—and for maintaining the lock that large firms have over ordinary women and men—and for private justice systems where the stronger party gets to pick its judge, overpay that person, and call it a fair process.
Really, what’s the point of passing a law that benefits individuals if those individuals are required to waive their right to enforce the law in a court of law?
Today’s cases are Epic Systems Corp. v. Lewis, case number 16-285; Ernst & Young LLP et al. v. Stephen Morris et al., case number 16-300; NLRB v. Murphy Oil USA Inc., case number 16-307, in the Supreme Court of the United States.
PHOTO CREDIT: The Economist (U.K.)

Sunday, May 20, 2018

Make America Grate: Reducing Legal Immigration Hurts Small Businesses

Grate (verb): 1. reduce (something, especially food) to small shreds by rubbing it on a grater. 2. make an unpleasant rasping sound.
The Trump administration is sharply limiting legal immigration. Some small business owners are speaking out about the damage this is causing.
The Lexington-Herald Leader reports on small businesses that are losing contracts due to a loss of guest-workers from Guatamala and other poor nations.
“Eddie Devine voted for President Donald Trump because he thought he would be good for American business. Now, he says, the Trump administration’s restrictions on seasonal foreign labor may put him out of business. ‘I feel like I’ve been tricked by the devil,’ said Devine, owner of Harrodsburg-based Devine Creations Landscaping. “I feel so stupid.” 
Devine says it has been years since he could find enough dependable, drug-free American workers for his $12-an-hour jobs mowing and tending landscapes for cemeteries, shopping centers and apartment complexes across Central Kentucky. Devine says he lost a $100,000 account because he didn’t have enough men to do the job. He’s worried he may be out of business next year if things don’t improve.
He isn’t alone. Cuts in H-2B visas are hurting small businesses across the country that can’t find Americans willing to do hard, manual labor: Maryland crab processors, Texas shrimp fishermen, and Kentucky landscapers and construction companies.
‘We live and die by these visas,’ said Ken Monin, owner of Monin Construction, which specializes in home additions, roofs, decks and garages. ‘Last year we about went bankrupt. The workers we were supposed to get in March didn’t show up until August because they couldn’t get visas.’
Monin applied for eight H-2B workers this year, but he isn’t optimistic he will get any. Employers seeking H-2B workers must prove they have advertised and tried unsuccessfully to hire local workers.”

Saturday, May 19, 2018

Nursing Home Abuse: Trump Administration Blocks Lawsuits

Suppose that your loved one is confined to a nursing home. When you visit, you see probable signs of physical abuse. Or, as occurs in about 7% of abuse cases, your loved one credibly reports sexual assault.
For many years, a federal agency has collected data on nursing homes, including reports and investigations into abuse.
Until recently, lawyers who sued nursing homes for patient abuse could get this information at no cost.
No more. Even when information is requested via the Freedom of Information Act, the Trump administration is charging lawyers for the data and reports.
Ernest Tosh, a lawyer suing for patient abuse, was told by CMS (the federal agency) that it would charge almost $53,000 to fulfill a request for five years of “cost statements” filed by all U.S. nursing homes.
Jonathan Steele confirmed the new practice: “They took data that they’d produced in its entirety free of charge prior to the [2016] election, and then started charging a thousand dollars to search for the data, and then would send us a letter saying they’ve redacted portions of the data that made the data unusable for our purposes.”
On Friday, two prominent elder abuse law firms announced that they are suing the American Health Care Association, the main lobbying group for nursing homes. They seek records to show that the group has lobbied the administration for more restrictions on disclosure of nursing home records.
A main objective in the lawsuit is to see why so many nursing homes are staffed below levels that are required in order to qualify for Medicare and Medicaid reimbursement. That’s why the data are important for protecting the elderly who are in confined care situations.

Friday, May 18, 2018

How HR Executives Go to Jail: No-Poaching Agreements with Competitors

There are several reasons that wages are stagnating. One likely reason is that large employers secretly agree not to poach each other's employees.
And now, the U.S. Justice Department (DOJ) is using the criminal provisions of the Sherman Antitrust Act to hold executives responsible for this illegal practice.
Obama Example #1 involves two large companies that manufacture brakes for trains. The Obama DOJ alleged that Wabtec and Knorr-Bremse agreed not to hire many of each other’s senior employees in 2009. That included project managers, engineers, corporate officers and sales workers, according to the DOJ. The Obama DOJ broke that practice without jailing anyone.
Obama Example #2: Large Detroit medical centers agreed among themselves not to hire nurses, doctors, and all other employees from each other. This not only tamped down pay for specialists but for hourly wage earners. The Obama DOJ broke that practice without jailing anyone.
Now comes this new stance from the Trump DOJ (quoting from New York Law Journal’s recent reporting):
“In January 2018, the new head of the Antitrust Division—Assistant Attorney General Makan Delrahim—publicly stated that the Division has several ongoing no-poach investigations and would soon be bringing enforcement actions in these investigations: “In the coming couple of months, you will see some announcements, and to be honest with you, I’ve been shocked about how many of these [no-poach agreements] there are, but they’re real.” This warning followed public remarks by the Antitrust Division’s second-in-command—Principal Deputy Assistant Attorney General Andrew Finch—late last year indicating that companies and their executives “should be on notice” that they could be criminally prosecuted for participating in no-poach or wage-fixing agreements regardless of whether they compete to sell the same products or services.”

Thursday, May 17, 2018

Archdioceses & Big Ten Schools: The Shockingly High Cost of Sex Abuse

The Catholic Church and Big Ten universities—though different institutions— have custodial relationships with minors. They also have a legal role called parens patriae—essentially, the role of a guardian to ensure the well-being of minors entrusted to their care.
With that backdrop in mind, consider the following:
Michigan State University: The school has agreed to pay $425 million to the 332 victims represented in current litigation, with another $75 million set aside in a trust fund that could go to future plaintiffs.
Penn State (Sandusky abuse case): As of November 2017, Penn State has paid out an additional $16 million to people with claims they were sexually abused by former assistant football coach Jerry Sandusky, raising the total amount of payouts to more than $109 million.
The Los Angeles archdiocese in 2007 paid $660 million to 508 victims.
More generally, from 2003 to 2009 there have been at least nine major settlements with archdioceses in the U.S. involving over 375 cases with 1551 claimants/victims, resulting in payments of over $1.1 billion.
Common threads in these horror stories are lack of supervision of adults charged with caring for minors, ignoring complaints, and attacking complainants while protecting the abusers.

Wednesday, May 16, 2018

Homeless Black Man Arrested for “Fake” (Actually, Real) $10 Bill at Burger King

A homeless black man tried to buy breakfast at a Boston Burger King in November 2015. He placed his order and handed the cashier a $10 bill. The cashier called the police and had the man arrested for presenting a counterfeit bill. The police arrested the man, Emory Ellis. He spent three months in jail. At that point, the U.S. Secret Service examined the bill and found it was legal. Ellis was released.
Ellis is now suing Burger King for $1 million. His attorney, Justin Drecshler, told Law360 (a legal reporting service), “Had Mr. Ellis been a 35-year-old white man with some downtown job and tried to pass that exact same bill, there is no chance things would have gone down as they did. There is no chance they would have questioned it. There is no chance they would have refused to give it back or threatened to call the police. Had Mr. Ellis been white, he would have received an apology.”

Tuesday, May 15, 2018

You’re Tagged: Did Facebook Violate Your Privacy Rights?

Who owns your facial image? Illinois has a strict privacy law that prohibits collection of biometric information without a person’s consent (there are exceptions).
Facebook has a face-scanning technology.  On Monday, a federal judge in California certified a class action lawsuit on behalf of Illinois Facebook users alleging that the social media giant unlawfully collects biometric data from the tagging of their photos.
One defense put forward by Facebook is that plaintiffs cannot show an “actual injury”—a concept that the Supreme Court endorsed in a recent decision called Spokeo.
Spokeo utilizes web tools to aggregate data—for example, your name, email, phone number, username or address. The firm aggregates information from public records and does not do original research into personal data. Marketing firms can use this information for commercial gain.
Larry Poneman sued Spokeo alleging, among other things, that the site led to cyberstalking. In 2016, the Supreme Court ruled that Poneman and others had no standing to sue because they could show no "actual injury."
This illustrates the uphill climb facing Facebook plaintiffs. They say that Facebook cannot—without their consent— collect scans of facial geometry.
Illinois’ Biometric Information Privacy Act authorizes damages of $1,000 for negligent violations of the law, and $5,000 for intentional or reckless violations. Stay tuned for updates.

Monday, May 14, 2018

Far Beyond Sports Betting: Education Mandates and Public School Testing

No Child Left Behind was regarded as a bad law and set of policies—so bad that conservatives, liberals, and libertarians successfully pushed for legislation to end NCLB and replace it with a smaller version (called Every Student Succeeds Act, ESSA).
The main problem with both laws is that they mandate certain achievement test scores in order for local public schools to receive federal funds.
Today’s ruling on sports gambling has strong implications for public school testing and funding. That’s not obvious—so what’s the story?
Let’s start with today’s Supreme Court ruling, striking down a federal law that prohibited all states, except Nevada, from regulating “competitive sports” wagering. Now, every state can enact a law—for example, to allow betting at venues in the state, and to collect revenue from wagering.
But the decision has immense implications beyond sports gambling—more than anyone can foresee today. Why is that?
Because the winner today— New Jersey—argued that the Tenth Amendment prohibited the federal government from “commandeering” its power to regulate sports gambling. 
To understand New Jersey’s point, look at the text of the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the amendment says that the federal government has only those powers specifically granted by the Constitution.
Look at the U.S. Constitution: It does not enumerate any power to Congress to regulate education. Moreover, education has traditionally been locally-funded, locally-controlled.
So look for lawsuits very soon to get state and local school boards out of the testing business. That won’t address the much stickier issue of funding for federal programs, such as Title I (funding for reading educators to bring students up to standards). 
Two options on the surface are (1) make funds available without any accountability to the U.S. Department of Education or (2) cutoff federal funds and let states end these programs or pick up the costs.
But this just scratches the surface of federal-state co-regulation.

If you are a liberal, you might be disappointed to learn that federal environmental regulation for clean water—which involves federal mandates to state and local governments to meet quality standards—will be at risk under this precedent.
If you are conservative, you might be disappointed to learn that Attorney General Sessions’ threats to withhold funding to local police departments in “sanctuary cities” will also be at risk because policing is a local power, not a federal mandate.
Taken to its extreme, today’s ruling calls the New Deal and the contemporary version of extensive federal powers into question. 
Many people will cheer this—but our nation’s history with “states’ rights” is epitomized by the picture for this post. 

Friday, May 11, 2018

Why I’m Against A+

I am reading (and grading) amazing course papers—many that I find inspiring! So why do these papers receive an A and not an A+ grade?
My rationale begins in the UIUC grading scale, which (like many others) officially awards these point values:
A+       4.00               A         4.00
Now, that is dishonest. Ask anybody if an A and A+ are different, and they’ll say yes—A+ means something like superior, and A means something like excellent. Fair enough … but why doesn’t the university provide a meaningful numerical bonus? 
The answer is that the university really means that an A is the best grade you can achieve.
But there is important symbolism in an A+, right? Yes, there is.
But there is another way for a professor to express admiration for an “A+” paper: Write to your student. Tell her or him that they were outstanding. It might mean more than the plus sign.
But my reason is deeper. My students are about to launch their careers. If they get meaningful mentoring, they’ll receive a mix of positive and need-to-improve reviews. They will never hear their mentor or boss say, “You’re doing A+ work.” It’s not that the workplace is mean-spirited—it’s just that’s not how organizations evaluate performance.
A+ is like candy—it is sweet and fun to give out, but it has potential to create decay.
It signals that there is no room for improvement—and that is simply not the case. No matter how much we excel, there is room for improvement. The A+ grade is the new A, making an A a de facto A-, and so on.
Many of my students are A+. I will tell them in so many words, personally. But they’ll rarely if ever have a performance review with A+ on it. We need to set realistic performance review expectations.

Wednesday, May 9, 2018

Announcing Next Research Project: Biometrics at Work

At a research university, faculty spend summer (with much more free time) delving more deeply into their work. My next project, launching soon, is biometrics at work.
The first leg in this long term project is to understand the emerging technologies for human biometrics. 
Fitbit is an obvious example, but it scratches the surface. 
In professional sports—and now NCAA programs— some teams measure biometrics during practice and a few on a 24/7 basis (including sleep). 
Canadian national hockey programs—the youth feeder program to the NHL— massively monitor data from young athletes, “mine” it, and also sell it to sponsors (no telling how that is used for profit, but it probably is).
A few employers “chip” their workers. A Wisconsin company “chips” employees voluntarily to track their time at work. Where there’s a chip, there’s a way to measure more than just movement—and this company, called Three Square Market, has opened a Pandora’s box. This is not convenience. It’s Big Brother at work.
More practically speaking, some employers have wellness programs. They offer lower health insurance if employees hit certain biometric targets—e.g., steps, minutes, hours being active. 
It’s a promising idea but also ripe for abuse. Is biometric data “personal health information” under HIPAA, the primary medical privacy law? I don’t know … but I’ll find out.
If you have thoughts or ideas or experiences or stories to share, I am at the beginning point on this journey—share with me at I have a lot to learn (this is like Columbus's voyage with no sure destination!)
To Complete: I’ve been working on executive orders that regulate private sector employment, focusing especially on race and immigration issues. It is a massively overlooked topic. 
To show you how important it is: President Truman issued an executive order in 1950 that required the U.S. government not to discriminate on the basis of “race, color, religion or national origin” when it hires (sex was not included). Fourteen years later, that incredibly important concept was the backbone for our nation’s main anti-discrimination law (private sector and public employers), called Title VII. It's as though Truman's order served as a laboratory for the nation in dismantling racial segregation at work.
President Hoover—to cite a sad example— used an executive proclamation to set extremely low quotas for all immigration, except people from the U.K. The impact on labor markets was significant. He tweaked the quotas  to admit “Nordics.” Why that? Because the Iowa native—coming from an area where Scandinavians had migrated— realized that his "base" threatened to vote for Democrats if their fellow Norwegians and Swedes could not get past Ellis Island. Sounds Trumpian in its crass political calculations.
I’m a long way from looking at President Trump’s executive orders, but in time I’ll be able to compare his footprint with presidents dating back to (are you ready?) … Martin Van Buren! He issued the first executive order that affected the private sector—an order that put a ceiling on public works contracts (e.g., shipbuilding) to ten hours a day.

Tuesday, May 8, 2018

Trumpism and McCarthyism: Finding Solace?

While researching Truman’s papers today, I came across a remarkably relevant speech he gave.
For brief context, a Republican Attorney General (Herbert Brownell) used a public speech to accuse former President Harry Truman of bringing Communist spies into high government positions. It was irresponsibly false. The speech played to Sen. Joe McCarthy’s populist attacks on government elites, the FBI, Hollywood, and academics.
Within days, the Republican-led House Un-American Activities Committee subpoenaed Truman to testify.
On November 16, 1953, Truman issued a statement explaining that he would not comply with the subpoena.
He ended by stating this:
“The corruption of truth, the abandonment of our historical devotion for fair play, the use of the big lie and the unfounded accusation against any citizen in the name of Americanism or security, the rise to power of the demagogue who lives on untruth, the spread of fear and the destruction it faith in every level of our society is not a partisan matter.
'This horrible cancer is eating at the vitals of America and it can destroy the great edifice of freedom. If this sordid, deliberate and unprecedented attack on the loyalty of a former President of the United States is going to serve to alert the people to the terrible danger that our nation and each citizen faces, then it will have been a blessing in disguise.”
Hopefully, truth will be restored to its rightful place in public discourse. For more, see file:///C:/Users/m-leroy/Downloads/18-6%20(2).pdf.

LGBT Boss Fires HR Employee for Anti-Trans Facebook Post: Trump EEOC Supports Straight Employee

Only a few courts recognize LGBT status as a being protected under the term “sex discrimination" in employment law. Most courts still rule that legislation is required to indicate that Congress intends to protected gay workers from employment discrimination (many states take a broader view of discrimination, affording a venue for gay people).
Now comes this first-time case, where an LGBT boss read her HR employee’s Facebook post expressing concern that a policy at Target Corp. would allow transgender women to share a bathroom with her young daughters. The HR person for fired for having anti-LGBT animus.
The fired employee sued, claiming discrimination based on being straight.
To begin with, in the state where this occurred—Louisiana— the Fifth Circuit Court of Appeals does not recognize LGBT status as a basis for recovery on a claim for sex discrimination. To that court, “sex” in Title VII refers to when a man discriminates against a straight woman or a woman discriminates against a straight man—but not this does not apply to situations with gay employees.
With that in mind, the trial court rejected the claim by the fired woman, stating: “It is unreasonable for plaintiff to believe that discrimination based on her status as a married, heterosexual female constitutes discrimination on the basis of her sex.”
The matter is on appeal to the Fifth Circuit. 
Enter the Trump administration, which wants to make a legal point that straight workers can be eligible for relief under Title VII. It filed a brief in support of the straight employee. Interesting ... who knew that straight people are a victim class.
I’m willing to go there, provided that it works all ways: If a straight boss fires a transgender employee because of the person’s sex, that’s discrimination. If a transgender boss fires a straight person for opposing all-access bathrooms on Facebook (without directly harassing an LGBT person), then I’m willing to say that that’s employment discrimination “because of … sex (quoting statute).”
But my hunch is the Fifth Circuit will recognize that “straight” is protected, but LGBT is not.
Here’s why. Joseph Oncale (pictured) looked gay to his male co-workers. They worked on an oil rig in the Gulf—out to sea 14 days at a time. Oncale’s homophobic co-workers viciously harassed him including stripping him and forcing a bar of soap shaped like a penis in Oncale’s rectum. Oncale sued his employer for sex discrimination. The Fifth Circuit said male-on-male sexual harassment does not arise under Title VII-- case dismissed. The Supreme Court overruled the Louisiana-based court—a court that sometimes appears stuck in the sexual mores of the 1950s. 

Monday, May 7, 2018

Executive Order 8985 Establishing the Office of Censorship

Yes, the United States had an Office of Censorship. FDR created it two weeks after Pearl Harbor was devastated by a surprise attack from Japan. In hindsight, it is a troubling precedent.
The order began thus: “All Americans abhor censorship, just as they abhor war. But the experience of this and of all other Nations has demonstrated that some degree of censorship is essential in wartime, and we are at war.”
It then said:
“It is necessary that a watch be set upon our borders, so that no such information may reach the enemy, inadvertently or otherwise, through the medium of the mails, radio, or cable transmission, or by any other means.
It is necessary that prohibitions against the domestic publication of some types of information, contained in long-existing statutes, be rigidly enforced.
Finally, the Government has called upon a patriotic press and radio to abstain voluntarily from the dissemination of detailed information of certain kinds, such as reports of the movements of vessels and troops. The response has indicated a universal desire to cooperate.”
The order lasted until 1945.
On Friday, President Trump addressed a rally in Ohio. He repeated his pledge to build a wall. He added something new: “And we're going to get tremendous security in our country. And we may have to close up our country to get this straight, because we either have a country or we don't.”
FDR called upon the press to be “patriotic.” He distorted the dangers about securing our border. Not a single case of espionage was brought against a Japanese American or Japanese resident alien in WW II. The difference is that we suffered a brutal attack by a hostile nation. Today is different.

Sunday, May 6, 2018

“Too Experienced” = Age Discrimination, Say Courts

Three age discrimination cases are making legal waves.
CASE 1: AARP is representing Dale Kleber in a lawsuit against CareFusion, a medical instrument firm, because of the way they advertised a corporate lawyer job. The company said an applicant had to have seven years or less in experience, in addition to other qualifications. Kleber, who was 58 when he applied, brought a disparate treatment claim alleging the company violated the ADEA by hiring a younger, less qualified applicant. On April 26th, the federal appeals court in Chicago agreed with Kleber’s legal argument: Even though the hiring criterion did not mention age, it effectively filtered out a very high percentage of otherwise qualified applicants over 40. His case will go to trial (or be settled). The case is Kleber v. CareFusion.
CASE 2: A trendy chain restaurant— Seasons 52—settled an age discrimination lawsuit with the EEOC (Equal Employment Opportunity Commission) on Thursday for $2.85 million. The lawsuit accused the company of refusing to hire “old white guys” and other applicants over 40 in order to maintain a youthful image. Applicants were told they were "too experienced" and that the company was "not looking for old white guys," among other comments, according to the lawsuit. The lawsuit stemmed from complaints filed with the EEOC in 2010 by two men who were turned down for jobs at a Seasons 52 in Coral Gables, Florida.
In addition to the payout, the company agreed to post pictures of “age diverse staff” on its social media accounts, and eliminate questions asked at job interviews that could reveal an applicant’s age, according to the filing.
CASE 3: Last year, restaurant chain Texas Roadhouse, settled a similar age discrimination case for $12 million. The EEOC claimed that the company routinely rejected job applicants over 40 for front-of-the-house positions such as waiters and bartenders. The company destroyed emails, job applications and records of job interviews during the EEOC’s investigation.

Thursday, May 3, 2018

Turd Terrorism at Work: Some Answers

Today’s news features a New Jersey school superintendent who was arrested for repeatedly defecating on a school track. This was an everyday occurrence, implying intent to, well, defecate.
This is more common than we probably realize. 
The EPA, in 2014, dealt with a serial defecator who fouled hallways. 
In 2012, an Amazon delivery worker was caught squatting and defecating on a driveway. 
Around that time, a Georgia food distributing company was dealing with a serial defecator.
Retail stores apparently have an increasing problem with poop-smearers in their bathrooms. 
It’s not just work-related. One famous case involves the Mad Pooper of Colorado Springs, a jogger who gave new meaning to “the runs” by leaving deposits on people’s lawns. (And we complain about dog poop.) 
The Arkansas Shit Bandit was another jogger who left a mark near parked cars.
What’s behind this behavior?
The best source I can find is Karen Wang, a contributor to a blog known as Friendship Circle. She reports as follows (and I quote):
"No one likes to talk about it, but fecal smearing, also called scatolia in medical literature, is surprisingly common among children and adults.  It occurs most frequently among individuals with developmental delays or post-traumatic stress, which means that the person may not be able to verbalize the reason for the behavior.
4. Psychological Reasons
Psychologists note that scatolia tends to occur in individuals with a history of obsessive-compulsive disorder, anxiety, schizophrenia, depression, bipolar disorder, ADD, autism or post-traumatic stress, especially trauma related to physical or sexual abuse.  Author Donna Williams, who has autism, points out that rectal digging and fecal smearing serve many real purposes that are often overlooked by caregivers and medical providers:

Provides a sense of control over one’s body and environment when other areas of life are out of control
Provides a sense of ownership over one’s actions
Expresses feelings of anger, frustration, helplessness and powerlessness
Prevents unwanted social interaction
May be associated with other comforting emotional experiences
May be part of a personal ritual that provides comfort
May be part of an obsession that is spiraling out of control
In each of these cases, care and attention must be given to the individual’s quality of life to make sure all needs are being met.  Inpatient psychiatric treatment may be needed for severe anxiety or OCD."

(Credit for the term “turd terrorism” goes to River Donaghey, who reports today in Vice on the New Jersey case.)

Wednesday, May 2, 2018

Illinois Judicial Bored

(Judge Travis Richardson during campaign speech "joking" about asking for campaign money ... Photo Credit: Chicago Tribune)
We are bored by judicial ethics. Others exploit our apathy, to our detriment. Consider our state supreme court, where judges amass millions of dollars for election campaigns. Lloyd Karmeier raised $4.8 million to win a supreme court seat in 2004. This included $350,000 from State Farm Insurance. To critics, this looked like influence peddling. State Farm was facing a $1 billion judgment won by the company’s policyholders. Justice Karmeier refused to remove himself from the case. Voting with a 4-2 majority, our supreme court reversed the lower court’s huge award of damages.
Justice Karmeier did nothing illegal. Nor did he violate the Code of Judicial of Conduct. In Illinois, wealthy donors— business groups, labor unions, and special interest groups— flood judicial campaigns with legal donations. We pay a price for this, however: Our judges appear to be bought, even if that is not actually the case. Just as bad, most of the money comes from outside our state. The one certain loss is our confidence that our courts are impartial.
That’s for elections. Do our judicial ethics allow a judge to peddle himself for a speaking fee to Illinois groups? The Illinois Judicial Inquiry Board is trying to answer that question. In August, a disciplinary complaint was brought against Justice Robert Steigmann. It alleged three violations of the Illinois Judicial Code, all stemming from the judge’s solicitation of speaking engagements for up to $1,250 per presentation. Justice Steigmann’s ads targeted law enforcement agencies and health care groups; were drafted on the court’s stationery; and in one instance stated, “Given the value I bring to these presentations, I think I am a cheap date.” 
This situation isn’t so funny. The idea behind the complaint is that Illinois judges should not be dating a potential litigant in their courts. But Justice Steigmann appears to have a good argument. Our ethics code—perhaps the most out-of-date in the nation— doesn’t expressly prohibit this money grab. Rule 62 states that a judge “should … conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Nothing is mandatory in Rule 62; and it says nothing about speaker fees.
In February, Cook County Judge Travis Richardson “joked” about seeking campaign contributions in a meeting before the Blue Island City Council— again, not so funny. When a city employee publicly objected to the judge asking for campaign money, her job was eliminated within hours. In a Chicago Tribune interview I noted, “The Illinois Judicial Inquiry Board rarely deals with complaints about fundraising and campaigning — the state lacks appropriate ethics rules.” In the same article, Kathy Twine, Executive Director of the Illinois Judicial Inquiry Board, disagreed: “If someone files a complaint about this, it will be handled expeditiously.”
As of May 1st, however, no complaint against Judge Richardson is reported on the Board’s website. What Ms. Twine did not state is why she can’t or won’t file a complaint. If the reason is that the board does not issue a complaint of its own initiative when it is apprised by the public of a case like Judge Richardson’s, then the code is pretty worthless. Really, why should anyone acting alone complain about a judge’s ethical conduct? To lose their job? To risk angering not just one judge, but many Illinois judges by asking hard questions? To seek discipline when the code is so lax that common sense breaches of the public’s trust can’t be disciplined? And why don't ethical judges insist on a togher code and better enforcement? In Illinois, money is the mother’s milk of politics. The fact that money is tied to influence in Illinois courts may bore us—but not our judges, nor their patrons.

Tuesday, May 1, 2018

Huge California Supreme Court Ruling Upsets “Gig Work” Model

The most important state supreme court ruled on Monday that “gig work” will be analyzed under a new test that will result in more findings that gig workers are employees, and not independent contractors. 
For my current students, recall that California relies on the 10-part Borello test to determine if a worker is an employee or an independent contractor. The court abandoned that test. It’s now using an “ABC” test—a three part test—that deemphasizes whether the firm controls work and asks whether the work is indispensable to the business (if so, the worker is an employee).
Uber and so many firms that now adopt the gig model let workers pick their schedules. Often, the firm uses a phone app and serves as a broker that brings a worker and customer together for a “gig”— a ride to the airport, delivering food to your food or office, maid service and the like. 
Under the Borello test, employer control of work was the most important factor. Firms like Uber took advantage of this by emphasizing that drivers pick their times, locations, and type of vehicle plus service level to pick up riders.
Under the ABC test, the main question is now whether a job that is part of the “usual course” of the company’s business. Uber without drivers is—well, nothing—and therefore their drivers will be employees.
This will certainly raise costs for Uber. Like traditional employers, they’ll be required to pay their 7.65% share of Social security and Medicare taxes; their share of unemployment insurance taxes; and their share of ACA health insurance.
If their drivers sexually assault a passenger—as is now claimed by more than 100 putative victims in the U.S.—they’ll be potentially liable under an agency theory that applies to traditional employers (the theory is respondeat superior, meaning the principal answers for the torts of the agent).
One aspect that goes under radar is what this means for regular employers. Take just the Social Security tax part. The 6.2% rate has been constant for many years. What has quietly changed is that the amount of income subject to the tax has grown from about $70,000 to the 2018 figure of about $127,000. That is a sneaky by highly consequential tax increase. The good news is that for regular employers in California (and this includes many technology giants, such as Apple and Google), gig employers will eventually be required to pay their fair share of employment related taxes.
For gig workers, it means that they’ll be eligible for minimum wages and overtime pay; rest breaks; laws that protect them from discrimination; worker’s compensation if they are injured on the job; reimbursement for expenses related to use of their cars and vans; health insurance benefits—the list goes on. But it’s also hard to see Uber sticking around to bear these new costs. Over time, they might withdraw from this immense market. They could build up their presence in places such as Iowa; but more likely, they’ll become more focused on international markets with huge populations and far less regulation.

Sunday, April 29, 2018

Why You Should Take the Onionhead Religion Seriously

Some employers emphasize neutral values such as teamwork. Liberal-leaning firms accentuate diversity and multi-culturalism. Conservative employers stress religious values (reflected in rules about attire, drinking, cursing, or display of religious symbols at work). Increasingly, however, employers want their employees to share their world-view, which may be grounded in religion.

Last week, a federal jury in Brooklyn ordered a health insurance company to pay $5.1 million to 10 employees who said they were forced to follow the practices of an obscure religious belief system called “Onionhead.”

Linda “Denali” Jordan was a senior manager who was given the power to fire employees at United Health Plans. She is an adherent of Onionhead, which is also called Harnessing Happiness.

Under her direction, UHP employees were required to thank God for their employment, routinely tell each other “I love you,” and participate in prayer circles and meditation. And each day, they were asked to select cards containing "universal truths" and contemplate their meaning.

One of the workers was fired in 2012 for refusing to participate in Onionhead rituals. Others put up with a work culture that referred to God, Satan and “divine destinies,” and religious iconography, in Onionhead literature. Jordan, while wearing her senior management hat, referred to herself as a “spiritual adviser.”

The Brooklyn jury found that Onionhead was used as a religion in this workplace, and its value system was also used to discriminate against employees on the basis of their faiths (or lack thereof). 

Soon, the Supreme Court will decide if a private bakery may rely on a First Amendment right to religious freedom to deny service to a gay couple. Odds are the court will rule for the bakery, opening the question of how far a private company can impose it religious values on customers and employees. “Onionhead” is appealing this expensive judgment. Depending on how broadly the Supreme Court defines religious freedom, employees could lose their jobs for not toeing the religious line of Onionhead and more conventional religiously-oriented employers.

Friday, April 27, 2018

How to Plan a Concentration Camp in America

There are parallels between the Nazi concentration camp [pictured first, Bunzlau, in Bolesławiec, Poland] where my father was held and American concentration camps (also called internment camps or, in more Orwellian terms, relocation centers) [pictured second, at Lake Tule, CA].
A geographer, Prof. Robert Wilson (Syracuse), set about to explain how the War Relocation Authority picked sites for these camps. 
The story begins with the federal government’s efforts to irrigate semi-arid high deserts in parts of California, Oregon, and Washington. The point was to boost agricultural production. To accomplish this, the government had to make unproductive land fertile—and also provide homesteads (free land) to new settlers. At this time—roughly, during World War I— western states passed laws that made it illegal for Japanese immigrants (and their American-born children) to own land. As Wilson notes, “Through hard work and the support of a willing federal government, the settlers had developed a landscape where white settlers could prosper.”
Two months after Pearl Harbor, FDR ordered approximately 117,000 Japanese-Americans to be “evacuated.” Like my father’s family, Japanese Americans lost their businesses, homes, and employment.
Initially, three large camps were sited on unclaimed land that was newly irrigated. The land was unclaimed because of extreme weather, isolation, and lack of any amenities—in short, ideal for an American concentration camp where innocent Japanese could be punished for their nationality and race.
Wilson explains as follows:
“Bureau of Reclamation irrigation projects had a number of qualities that made them attractive to the WRA. Bureau projects were based away from the coasts where most Japanese Americans lived and they were outside the exclusion zones. Because unhomesteaded project land was federally owned, the WRA did not need to purchase land for the camps. 
Although isolated by some standards, federal reclamation projects were near railways or highways, which were essential to transport Japanese Americans to the camps and to supply them with provisions.
Most important, however, the internees were expected to produce vegetables, grain, meat, and other agricultural products to help support thousands of others in the camps. The WRA believed that self-sufficiency was essential so that the camps did not become a drain on the war effort. The agency also wanted to keep the internees occupied with productive work. 
In the intermountain West, farming was largely impossible without irrigation water. Bureau of Reclamation projects offered the necessary infrastructure of canals and ditches to supply water to camp farms. Given that the WRA wanted to secure building sites as quickly as possible, it was no surprise that the agency chose the Reclamation Bureau’s projects. They were relatively isolated, federally owned, and suitable for irrigation.”