Respect Women at Work: Why Employment Is Better Than Contracting

My research on independent contracting was picked up by the New York Times: Click on this. In short: when employers use independent contractor agreements, women cannot sue for sexual harassment. Sex discrimination laws are largely premised on an employment relationship. In situations where women are hired for their beauty or sex appeal, this is a problem. Picture from Daily Beast, click here. 

Not Uplyfting: Drivers Settle with Uber’s Competitor

Drivers for Lyft, a main rival to Uber, have tentatively settled their lawsuit for $12.5 million. My critical reactions are in this interview: Click on this.

Don’t Worry, Be Happy: Rauner’s Wife Has New $100,000 Chief of Staff

Cue this and come back for the rest… (Background music here!)

Okay, now we can talk. The Chicagoist reports extensively on the odd juxtaposition of Gov. Rauner blaming Democrats for failing to fund social services while, on the same day, his wife, Diana Rauner, announced the hiring of a $100,000 Chief-of-Staff. Now that’s shaking things up! News is here.

“How Courts View Academic Freedom”: My Research in Journal of College and University Law

Here is my study based on 339 court rulings involving First Amendment claims made by college or university faculty members who allege that their school violated their academic freedom. Courts ruled for schools (and against faculty members) in 73% of cases.

Don’t Want Collective Bargaining? Why Unions Won’t Go Away

Suppose Bruce Rauner, Scott Walker, Rebecca Freidrichs (teacher whose case on mandatory union dues is before Supreme Court)—and many others— get their wish of severely weakening or abolishing collective bargaining. Will unions wither and die? No. Unions flourished before collective bargaining, mostly as organizations that relied on militancy—sit-down strikes, mass protests, coordinated strikes by area unions at multiple employers, etc. The point of collective bargaining was to take labor struggles off the street, and out of the parking lot, and into a conference room where bargaining would replace intimidation.

Would the end of collective bargaining be the end of unions? Yes, if you lived in Iran or North Korea, where labor unions are brutally repressed for their mere existence. Even China today allows unions and strikes are very common there—and no, this is not why China’s economy is falling (look at a centrally planned economy that over stimulates industrial sectors, builds cities no one wants, doesn't let its currency float in a free market, etc.).

Labor unions fully anticipate the loss of dues, and have proposed the concept of minority representation. Click on this. This means that unions could represent only the people who voted for it, paid dues, and supported its politics (just like Rebecca Freidrichs is arguing to the Court). The problem there: It's not practical to have a union for, say 40%, of the workforce ... those folks would probably bargain better wages and benefits than the unrepresented group; and the unrepresented group would be affected by strikes over which they have no say. Also, click here. 

The bottom line is that unions will survive if the Freidrichs case eviscerates mandatory dues. Unions will tend to withdraw from formal collective bargaining, and fall back to constitutional rights of assembly and a profusion of employee laws that limit unjust dismissal. They will use social media into shaming employers to do more for workers. Unions won’t go away, they will adapt.

Any Knucklehead Can Be President

ProfLERoy takes a breather to pass along a fun and somewhat provocative picture.

Quiz: Only President to Reduce Illegal (Unauthorized) Immigration Since 1990?

Today, the Supreme Court announced that it will review President Obama’s controversial “Deferred Action” program. More on that in a moment. Look at this chart, from the Pew Research Center:

Illegal immigration rose steadily from 3.5 million in 1990—when George Bush was president—through 2007, when George W. Bush’s second term ended. Presidents have little effect on immigration. The driver: the economy. When the economy tanked as Bush II left office and Obama entered, this had a major effect on curbing immigration. Since Obama has taken office, nearly 1 million illegal immigrants have left the U.S. No other president can make this claim.

But that gives Obama too much credit (or blame)—again, it’s the economy; it’s hostility in states such as Arizona and Texas; and it’s an improving economy in Mexico.

Obama has considerable executive authority over immigration policy because the USCIS, and Departments of Justice, Homeland Security, and State are under his power. Obama makes the argument, in his executive action, that Congress has not passed a sufficient budget to deport everyone. His focus is on deporting criminals—and his administration has deported more per month than Bush II. Texas and 25 other states disagree. They say he has exceeded his constitutional authority, and also usurped their powers. 

Tax Cheats Hurt Responsible Employers

The Treasury Department says that when employers misclassify workers as independent contractors (instead of paying wages to them as employees), they save about $3,710 per worker per year in employment taxes on an annual average of $43,007 in earnings. U.S. Dep’t of Treasury, Employers Do Not Always Follow Internal Revenue Service Worker Determination Rulings (June 13, 2014), at 2, available here.  The upshot: Not only are workers shortchanged, but tax burdens weigh more heavily on responsible employers. 

Do You Have Fitbit? Surprise!

If you visit a Fitbit website—say, to synch your Fitbit to your phone— you are now required to agree to arbitration. In other words, if you had a future reason to sue Fitbit (failure to abide by warranty; defective product; etc.), you are required to waive your right to seek redress in a court, and appear before an arbitrator, likely chosen by the company. Details are here.  Meanwhile, at Guitar Center, Sean Lynch—a seven year employee— was required to go online and sign an arbitration agreement. If not, he’d be fired. For more, click on this.

In California, this type of forced agreement is called for what it is— an adhesion contract, which is lawyer-speak for a contract that has the appearance of an agreement but is actually the product of compulsion by a party with superior power over a party who signs under duress. In most states—and also, in most federal-law situations— these agreements are upheld by courts. (Thanks to my South Bend Bureau for a key tip here!)

What Drives Immigrant Genius? Marginality

New research challenges the long-held notion that immigrant geniuses— Einstein, Freud, Marie Curie, Victor Hugo, W.H. Auden, Vladimir Nabokov, Nikolas Tesla— succeeded due to outsized ambition. The key is “cognitive flexibility”— the ability to see things as others do not. A provocative Wall Street Journal article reports research showing that “it isn’t the immigrant’s ambition that explains her creativity but her marginality. Many immigrants possess what the psychologist Nigel Barber calls ‘oblique perspective.’ Uprooted from the familiar, they see the world at an angle, and this fresh perspective enables them to surpass the merely talented. To paraphrase the philosopher Schopenhauer: Talent hits a target no one else can hit. Genius hits a target no one else can see.” Read more here.

More NCAA Hypocrisy

If you believe that the NCAA is serious about improving the balance of education and sports for its student athletes, stop drinking your Kool-Aid, now. As reported by Inside Higher Ed:(quoting below).

In a fast-moving legislative session here Friday, the National Collegiate Athletic Association’s five wealthiest conferences adopted few major changes, prompting a backlash from athletes and some college sports leaders.

The discussion forum ahead of Friday’s vote lasted less than an hour, with little debate taking place outside of those lamenting the loss of tabled legislation. Earlier in the week, most of the significant proposals scheduled for a vote were suddenly postponed until next year. Among the scuttled proposals were those addressing the time demands on athletes, an issue players have pushed to the forefront in the last year and at this week’s meeting.

The results of a national survey of 30,000 Division I athletes, released by the NCAA this week, found that many athletes want to spend less time on athletics. The study was organized by the Student-Athlete Advisory Committee. More than 40 percent of football and basketball players said they wanted an additional day off per week beyond the one they have now, and most athletes indicated they would appreciate two weeks off at the end of a season.

One of the tabled proposals would have created a three-week discretionary period barring required athletic activity following the championship segment of a season. Another proposal aimed to prohibit athletically related activities, other than competition, for a continuous eight-hour period between 9 p.m. and 6 a.m.

Why Playing Powerball Is a Good Investment

I don’t buy lottery tickets. My wife, Janet, plays when the jackpot is huge. Today’s Wall Street Journal  (Greg Ip, author) offers rationales from economists who see real value in following Janet’s strategy.

“Budget wonk Michael Linden said, 'The pleasure you derive from the resulting daydreams is worth at least $2.” Matt Levine of Bloomberg View agreed: “Come on now. What is the disutility of spending $2, for you? What is the utility of winning? Of thinking about winning?’”

Janet’s imaginary philanthropy was worth whatever money she paid. Maybe she’ll do something from that wish list someday, as a result. If you played the Powerball— and you dreamed— you made a better investment than I made. I have nothing to show for my miserly ways.

I add one more point: For those who participated, you were connected to tens of millions of people in a common pursuit. The rest of us non-joiners--, well, we were party-poopers.

Gotcha, Facebook: Bias Against Israel

Is Facebook evenhanded in treating anti-Palestine and anti-Israel content? The Israel Law Center launched two FB pages on December 28. The titles were the same, except in this way: “Stop Palestine,” and “Stop Israel.” The daily content was the same:  “Death to all Arabs,” and “Death to all Israelis.” Pictures were added of similar violence by Israelis (including soldiers) against Palestinians, and Palestinians against Israelis. People jumped on both pages to ramp up the hate message. The “Stop Israel” page morphed into more diffused hate against Jews. The other page did not receive posts that hated on Muslims.

On December 30, the Center reported both pages to FB as being in violation of Facebook’s Internet policies against hate speech and incitements to violence. Facebook shut down the “Stop Palestine” site on December 30. But Facebook did not shut down the “Stop Israel” page, and its "Death to All Israelis" feature. The Law Center anticipated this result, and launched a video montage of both pages, and Facebook’s diametrically opposed responses.  After the video went viral, Facebook took down the “Death to All Israelis” page, apologized, and reaffirmed its position on not posting hate speech. Meanwhile, the Center has a lawsuit against Facebook for refusing to take down pages that incite stabbings of Israelis. For more, see Sheila Kugel’s informative op-ed piece. Click here.