Halloween at University of Louisville: Trick or Treat?

The president of the University of Louisville and staff members are pictured in a “Mexican costume” for Halloween at a party held on the school’s property on Wednesday. Opposing the event, Olivia Krauth, editor of the Louisville Cardinal, the school’s newspaper, said in an op-ed: “The president of a school that prides itself in diversity opted to dress himself and his staff as a culture for Halloween. Not just a culture, but a minority that is frequently faced with prejudice. Not just a culture, but a completely wrongfully depicted culture according to people who are actually in that culture." Posts to her editorial express mixed views— mostly in disagreement. For example: “After seeing the school knuckle under to the PC knuckleheads, I know who’s not getting any donations from me.” And: “What exactly is … negative about this stereotype?” The U of L president—who spent last week defending his star basketball coach over allegations that basketball recruits received tricks and treats from hookers paid by a coach at a university dorm— added to the university’s image problem.

Arbitration: The Fourth Branch of Government

We all know that federal and state governments divide and share powers. The system is called “checks and balances,” and it regulates powers between the legislative, executive and judicial branches. Arbitration is becoming a fourth branch. Whether you’re an individual or small business, you are increasingly required—as a condition for doing business— to take any dispute to arbitration. Did your credit card company mislead you, and it’s costing you money? Tough luck. There is no class action lawsuit to address your point. You must arbitrate it on your own. Is your cable company screwing you, too? Take it to arbitration. Oh, your employer is requiring you, too, to arbitrate your disputes— as are “non-employers” such as Uber who think they have no obligations under employment or insurance laws that were enacted to benefit you. The bottom line is that the laws that the legislature passed to protect you, and that a president or governor signed, and that provide for courts to adjudicate have been hijacked by large corporations who run their own “justice” system. For more, read here. 

When an Employer Wellness Program Seeks a Person’s Medical/Genetic Information: New Federal Rule

The EEOC (Equal Employment Opportunity Commission) has issued a new rule as part of its jurisdiction over GINA (Genetic Information Nondiscrimination Act). The issue: Some employers pressure employees to share medical information about a spouse as part of an employer sponsored wellness program. Here is what the federal agency now says: “[The] EEOC's proposed rule addresses the extent to which an employer may offer incentives for an employee's spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program, when he or she participates in the employer's health plan. The proposed rule clarifies that an employer may offer, as a part of its health plan, a limited incentive to an employee whose spouse is covered under the employee's health plan; receives health or genetic services offered by the employer, including as part of a wellness program; and provides information about his or her current or past health status. The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value). The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled." For more information, see here. 

Would You Risk Your Job to Help a Choking Child?

Qwasie Reid was confronted with this stark question last Wednesday. He and his partner worked as EMTs. They were transporting a nursing home patient. Suddenly, a man flagged them down. He said a girl was choking on her lunch. Reid violated company policy, which strictly forbids stopping for anyone except for a patient who is dispatched (and covered by insurance). He stopped, anyway. In this news story, he said: "She was blue in the face and lips. No response. Unconscious unresponsive." He administered CPR for four minutes until more help arrived. The girl is brain dead, though not for lack of his heroic efforts. Reid? He’s been fired. His view? "As an EMT, I don’t care about your money … There was a child choking. I’m worried about them firing me, but I did a good deed. I just feel like I’m being penalized for something and I haven’t done anything wrong." Thanks to one of my students for the lead on this. PS: In most states, Mr. Reid has no effective legal recourse. In Washington and a couple of other states, there is a controversial tort that would treat this situation as one where an employer wrongfully terminated an employee for trying to save a life. The controversy is that courts generally do not overrule employer judgments in these matters.

Female Co-Worker Gets the Shaft at Work

Any man who shows his penis to a female co-worker should expect to be fired for doing so … except in Mississippi. Fred Tate was hired by Nissan and did exactly this to Joslyne Davenport. Ms. Davenport did not report the incident for several months. Never mind that she might have been intimidated by the flashing episode; or that she worried that if she made waves at work, she would be fired; or that no one would believe her story. Eventually, she sued, claiming sexual harassment. Federal District Judge Carlton Reeves has dismissed her lawsuit, essentially reasoning that a one-time penis show is not sufficiently severe to alter the conditions of work for a female co-worker.  Even worse, the decision shifts the blame to Ms. Davenport for waiting to report. Well, she was right, after all— the victim is to blame. For this appalling decision, read here. 

Free Speech? Facebook and the Murder of Richard Lakin

Richard Lakin, a retired school principal, used his Facebook page to show an image of Israeli and Arab kids hugging under the word “coexist.” Nonetheless, he recently sued Facebook for inciting violence when he saw that Facebook published Palestinian postings of caricatures and videos that demonized Israelis, as well as instructions on “how to stab a Jew.” Two weeks ago, Lakin was riding on a bus in Israel when a Palestinian shot him in the head and then stabbed multiple times— just as the Facebook videos instructed. On October 25^th Mr. Lakin died from his wounds. His family—and his lawsuit— survive him. For details, read here.  

Jury of Your Pumpkins?

Can you be tried by a jury of pumpkins? The issue arose in Zabin v. Picciotto, 896 N.E.2d 937 (Mass. 2008). Jurors were serving in court on Halloween. They asked if they could wear costumes. The judge approved provided that counsel for both sides also agreed to allow the holiday costumes. They agreed. After the defendants lost the case, they appealed on grounds that the “costumes turned the trial into a circus and denied their rights to due process.” The Massachusetts court of appeals ruled: “With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings. However, as to the defendants' claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.”

If Teachers Lose Their Supreme Court Case: Another Solution?

It appears likely that teachers will lose their important (and pending) Supreme Court case on enforcing agency fees (also called mandatory dues). This is based on the vote in an analogous case, Harris v. Quinn (5-4 vote). What then? Our nation’s collective bargaining laws are founded on the principle of exclusive representation. So, if a teacher’s union represents 100 teachers in a given district, that organization must represent all 100 teachers, whether they pay dues or not. Obviously, not all 100 teachers will have the same interests—some will value retirement issues, others will focus on the pay scale, others will focus on teacher evaluations, and so on. Some teachers will not want any representation—but under our labor laws, they are stuck, as long as 51 teachers support their union. Some European nations have minority representation. If 30 out of 100 teachers favor the Sunshine Union, the employer must bargain with the Sunshine Union. If another 25 teachers favor the Flower Union, the employer must bargain with the Flower Union. If the remaining 45 teachers want no union, the employer has a free hand to deal with those individuals as the employer sees fit. The main disadvantage of the system is that is leads to unequal employment conditions for a group of employees with a common employer. But the main advantage is that it allows for individual choice—precisely what Ms. Friedrichs is seeking in her lawsuit to be free from union dues. Experience shows that the most effective union wins the greatest support from employees, acting as a brake on having too many unions.... But to the extent that the real agenda with this lawsuit is to do away with teacher unions, that idea is fitting for totalitarian societies where employees have few if any rights-- an "un-American" idea.

Rebuttal to My Post About Gov. Rauner

Pam Harris and I disagree, but I am compelled to publish her very thoughtful rebuttal to my previous post on this subject. Published with due respect, Prof. LeRoy. From Pam Harris, lead plaintiff in Harris v. Quinn (recent Supreme Court case): "I respectfully disagree. I think Governor Rauner has great respect for teachers and sincere concern for our childrens' education. It's the SEIU and AFSCME and their previously negotiated contracts that has likely motivated our Governor to submit the amicus brief on behalf of the Plaintiffs in Friedrichs. Home daycare providers are independent small businesses and home care workers work for the individual who is disabled or elderly in their own home. Neither work for the state and many believe the union is an unnecessary intrusion. Taking public dollars intended to provide care for children of low-income families, the disabled and elderly, and giving it to the unions, is reprehensible. It is time for SCOTUS to take a good hard look at Abood and how far public sector unions have gone astray. Unions insistence for exclusive representation, fair share and labor peace simply does not apply to home daycare or home care providers."

Fired for Refusing On-the-Job Adultery: A New Tort

A business owner—also a married man— demanded that a female employee have sex with him. Nothing new here. She refused on grounds that she would aid and abet adultery. That’s a little unusual. In the more common case, the subordinate alleges quid pro quo sexual harassment—and wins, if there is proof. But often, the remedy is reinstatement and lost wages. In this new case, the subordinate claimed that Virginia’s public policies on marriage are so paramount that a private employer cannot fire an employee for refusing to aid and abet adultery. A Virginia federal court has now ruled that state law recognizes a “public policy tort for wrongful discharge” that applies to this situation. What’s the difference between this tort case (civil wrong) and the more typical case involving a sexual harassment claim? In a word: Money. Tort damages can include a punitive element, to make an example of a bad actor. In Virginia, where religious values run deep, this might be costly for the spurned employer.

Missing-In-Action, Gov. Rauner Surfaces at U.S. Supreme Court

While Gov. Bruce Rauner is unable to propose a budget until state labor laws are completely gutted of union protections, he did find time to file a “friend of the court” brief with the U.S. Supreme Court a few weeks ago. In it, he backs a California school teacher who is arguing that she has a First Amendment right not pay union dues (Friedrichs v. California Teachers Association et al.). In his brief, he lays all of the blame for Illinois’ budgetary woes on public unions: “These union benefits have contributed to a remarkable structural budget deficit and to repeated credit rating downgrades in Illinois. In fiscal year 2015, pension costs attributable to the general fund exceeded $7.5 billion, or about 24% of state-source general fund revenue.” He doesn't mention that Illinois lawmakers, starting in the mid-1990s, failed to make required pension contributions—and over the years, these pension-skipping budgets snowballed the pension deficit. Democrats and Republicans are responsible for this, preferring to start new spending programs (Democrats) or walk away from legal funding commitments (Republicans). That's the Illinois way to make a budget. Gov. Rauner has found the real villain: it’s those selfish public school teachers who are corrupting Illinois. Like this evil IEA member on a recent field trip to indulge her selfish interests.... 

Where is Graduation Gap between Whites and Blacks Largest? Wisconsin

This week our employment law class will read and discuss Griggs v. Duke Power. It’s the single most important Supreme Court case in employment law. In 1965, Duke Power required employees to have a high school diploma; but due to segregation in schools, blacks had a 13% graduation rate compared to whites with 34%. Thus, a high school diploma was a significant barrier that operated disproportionately against blacks. The Supreme Court said that an employment criterion, neutral on its face but disparate in its impact by race, was unlawful unless the employer could show a business justification. (Most of Duke’s successful white employees had no high school diploma, so in 1965, that qualification standard did not relate to job success.) Fast forward: Whites in Wisconsin have a 93% graduation rate; blacks have a 66% rate. This great inequality has serious implications for long-term job- and income-inequality. Whatever the cause(s) of the disparity, it is a disaster for all of us. Details are here.

Can Boss Call Employee “Asshole” on Facebook? Yes, But…

Employers enjoy a wide range of freedom of speech; but they need to watch out for the following. Consider Teresa Harris’s case (Harris v. Forklift Systems, Inc.), which went to the U.S. Supreme Court. Her boss called her a “dumbass woman.” He also told crude jokes. The high court reinstated a case that had been dismissed, and basically told the lower court to reconsider whether expressions such as “dumbass woman” create a hostile work environment. Different context, but in another case a company president repeatedly referred to his employee, Mansour, as Manny. Mansour asked him politely to use his correct time-- more than once. After a while, Mansour sued claiming national origin discrimination. He won a $90,000 judgment due a work environment that was hostile to Egyptians. The boss denied any hostile intent. The court said intent didn’t necessarily matter: a reasonable Arab would find this insulting and interfering with work. Lesson: Calling an employee an “asshole” won’t create liability; but the boss has to be careful not to append discriminatory names and stereotypes to this common insult.

Major Facebook Decision Is In: Boss Can’t Fire You for “Asshole” Comment

Recently, this blog reported on a key ruling by the NLRB that ruled in favor of a waitress who called her boss an “asshole” on Facebook. The cook liked the post. Both employees were fired. A federal appeals panel voted 3-0 to uphold the NLRB. Their core reasoning: “Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer’s brand. The Board’s decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modernday social media use.” So where is the line? An employee can be fired for a social media post that disparages the employer’s product: “an employer has a legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation . . . from defamation.” Read the case is here.

Two Corporate Leaders Face Federal Indictments … and the Phony Meme on Union Corruption

You don’t want to be Barbara Bennett-Byrd right now. Or ever. She worked as an executive for SUPES, a highly touted private-sector educational consulting firm. When she was hired to be the CEO of the Chicago Board of Education, she received secret promises of $2.3 million in kickback money from her SUPES bosses. To get the money, she steered a $20 million no-bid consulting contract to her former employer. SUPES, by the way, has an all-star board of trustees that included Bruce Rauner at the time that SUPES won the grant. Bennett-Byrd pleaded guilty to federal corruption charges this week. She will do a lot of talking to U.S. attorneys in the comings weeks and months. You also don’t want to be Don Blanckenship. He’s the former CEO of a large coal mining company, Massey. He is on trial for violating safety rules that led to an explosion that killed 29 miners in West Virginia. He’s the same CEO who bought—that is, contributed to— a state supreme court justice for $5 million. That justice cast the deciding vote in a civil lawsuit that originally led to a $50 million judgment against him. He made a ten-fold return on that investment; but now, tape recordings of his meetings with company safety managers show that he ordered officials to bypass safety procedures. He faces 31 years. What makes these two stories so interesting is the unions who dealt with these CEOs—the Chicago Teachers Union, and United Mine Workers—are frequently portrayed by Gov. Rauner and Blanckenship as corrupt. The facts show otherwise. See here.

Is Alcoholism a Disability under the ADA? The Fired USC Coach

Does the ADA protect employees with substance abuse problems? It depends. Working against ex-coach Sarkisian, the ADA allows employers to hold employees who are alcoholic to the same standards of performance and conduct applied to other employees. So, if it is true that the coach was drunk in public and brought disrepute to the football program because of his condition, he could be fired for the underlying conduct. EEOC Guidelines state: “This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.” But the Guidelines go on to ask: “What should an employer do if an employee mentions drug addiction or alcoholism, or requests accommodation, for the first time in response to discipline for unacceptable performance or conduct?” The answer: “An employee whose poor performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation, separate from any disciplinary action the employer chooses to impose and assuming the discipline for the infraction is not termination.” So, there are two questions we cannot answer from this distant vantage: Did the coach’s alleged misconduct issues warrant termination, regardless of alcohol as a contributing factor? And second: Did the coach ask for ask for a reasonable accommodation? “If the employee requests an accommodation, the employer should begin an ‘interactive process’ to determine if an accommodation is needed to correct the problem.” For more, see here. And good luck, Coach. Get well soon, and back to football.

Can You Be Fired for Liking a Facebook Post That Calls Your Boss an Asshole?

A waitress at a sports bar was fired after she posted on Facebook a rant that called her a boss an “asshole.” She was fired for the post. The bar's cook liked the post. He was fired, too. This unremarkable case is being closely watched because a union successfully intervened in their behalf before the National Labor Relations Board. The NLRB ruled that the employer’s communication policy was too broad and ordered the bar to rehire the workers. Federal courts generally rule that employers may fire employees for using profanity in front of customers, or denigrating their employer without raising a specific grievance. But these cases involve face-to-face interactions. A federal appeals court will review the NLRB decision to see if Facebook posts are covered by these precedents. By the way, this is not a First Amendment case because it involves a private-sector employer. However, if the appeals courts reverses the NLRB here, the outcome will be very disappointing. Key to note, the Facebook posts were not aimed at the bar's customers and had no impact on the business. The only employer justification for the terminations is the joy of retaliation. For more see here.

Celebrating Wainwright & Arrieta: "Baseball Is 90% Half Mental"

Two opposing pitchers have this in common: the ability to overcome adversity. Wainwright was in the middle of proposing to his fiancé when he got a phone call. He was traded from his favorite team (Braves) to the Cardinals. Since then, he has excelled notwithstanding injuries that would end most careers. Arrieta had a 3-9 record in 2012 with Baltimore before being demoted to the minors. In 5 starts with the Orioles in 2013, Arrieta went 1–2 with a 7.23 ERA. He was traded to the Cubs after failing in Baltimore. Both pitchers prove Yogi Berra's saying: "Baseball is 90% half mental."

Is the American Dream Ending?

What’s the American dream? We all can improve our fortunes over time, if we work for it. Recent statistics  suggest the dream is in serious trouble. A recent study shows that every age group—except people over 65-- has less net worth since 1989. At the younger age band, accumulated college debt and poor labor markets have eroded net worth. Middle-agers tended to buy expensive homes with little money down, and later defaulted or simply have a home that has declined in value: “Households led by people age 35-44 saw the biggest drop, down 54%, with rising mortgage debt largely to blame. In 1989, these families had a median mortgage of $72,000 against a median home value of $145,000. By 2013, the home value for this age group was somewhat higher at $170,000, but the size of mortgages had nearly doubled to $140,000.” What do we hear in our presidential campaigns? Anything but this story.

Can A State Enact a Quota on the Employment of Foreign-Born Workers?

100 years ago, the Supreme Court decided Truax v. Raich (see here ), a case involving an Arizona law that limited employers to a quota of foreign-born employees. The law criminalized employment relationships that exceeded a 20% cap on foreigners, even if corporations hired aliens who were lawfully admitted to the U.S. The U.S. Supreme Court weighed an Austrian cook’s interest in retaining his employment against the state’s power to set limits on the number of jobs available to foreign nationals. Striking down the law, the Court said in 1915: “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [14^th] Amendment to secure. If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words.”  Would a Justice nominated by Donald Trump or Ben Carson overrule Truax? Has the U.S. progressed since Arizona enacted this law more than century ago?

More Brain-Drano for Illinois: Gov. Rauner’s Turnaround Agenda Poised to Grow Private Universities

 

In his first 100 days of office, Gov. Rauner (Dartmouth and Harvard grad) proposed a 31% cut in spending for public universities. Yesterday, the nine university system presidents warned that their schools are on “the brink of serious operational damage.” See this. To put this in perspective, Illinois ranked dead-last among states that have increased enrollment in public colleges and universities from 2002-2012 (see chart below). The biggest drain occurred at the “directional schools”— e.g., EIU and Southern, schools that play a vital role in state and regional labor markets (EIU [and ISU] teacher grads tend to be great!). But a bad situation (ten-year trend) that became much worse with a 31% budget cut proposal in February (Rauner) now is held hostage to the governor’s “turnaround agenda.” Programs will be cut; schools will attract fewer students; faculty will leave; and at last—the public sector will begin to shrink.

A Steamy Affair at Stanford Business School: Some Lessons?

Stanford’s Business School dean is stepping down after his messy affair with a professor has created a big distraction. Deborah Gruenfeld and James Phills were married and on the Stanford faculty, but they split-up a little before (or was it after?) the dean, Garth Saloner, became romantically involved with the wife. The Wall Street Journal reports today on the lawsuit by former Prof. Phills against Stanford. He alleges that after the dean-professor relationship warmed up, he was odd-man out and his employment was terminated. The WSJ reports:  “The court papers include emails and messages between the dean and his girlfriend [ahem, professorial colleague] that could prove embarrassing for the dean and the school.” Readers can draw their own lessons. One not-so-obvious lesson is how some professors don’t learn from their academic research. It turns out that Prof. Gruenfeld teaches one course titled, “Acting with Power,” and has published a paper titled, “How Power Corrupts Relationships: Cynical Attributions for Others' Generous Acts.” The article is here. Prof. Gruenfeld’s paper is here.