Jessica Ann Zinger LeRoy, Ph.D.

The Old Testament (Torah) begins: “1. In the beginning God created the heavens and the earth. 2. Now the earth was formless and empty, darkness was over the surface of the deep, and the Spirit of God was hovering over the waters.” 

Today, my daughter-in-law, Jessica Zinger LeRoy, was awarded a Ph.D. from the University of Illinois at Urbana-Champaign, after she successfully defended her dissertation on meandering rivers. Her study—which is largely over my head— explains how rivers change their shapes, and create bends and cutoffs, due to a complex set of hydraulic forces, and river bank and bed features.

Why should we know this? Well, as someone who has dealt with flooded basements over the years, I am glad scientists are studying how rivers transport huge volumes of rain water. Parenthetically, Jess explained that in “cutoff areas” there is growth of vegetation that provides support to birds, other animals, and plants in a river’s wider corridor. That's not the point of her study; but somehow, I like that idea.

But most of all, God created heaven and earth. If we understand river bends better, we have a glimpse of the infinite, as told by a scientist who has the gift of making these wonders more understandable for the rest of us. Mazel Tov to Jess.

Camp Cursive Returns to UIUC

UIUC’s Rare Book Room, and Janet LeRoy, are teaming up again to offer Camp Cursive to area grade-schoolers. This idea is more than a quaint nostalgia for pre-keyboarding writing experience. Recent research shows that students retain information in more detail when they hand write notes compared to keyboarding. See Mueller, Pam (2014). "The Pen Is Mightier Than the Keyboard: Advantages of Longhand Over Laptop Note Taking". Psychological Science, here.

The research shows: Taking notes on laptops rather than in longhand is increasingly common. Many researchers have suggested that laptop note taking is less effective than longhand note taking for learning. Prior studies have primarily focused on students’ capacity for multitasking and distraction when using laptops. The present research suggests that even when laptops are used solely to take notes, they may still be impairing learning because their use results in shallower processing. In three studies, we found that students who took notes on laptops performed worse on conceptual questions than students who took notes longhand. We show that whereas taking more notes can be beneficial, laptop note takers’ tendency to transcribe lectures verbatim rather than processing information and re-framing it in their own words is detrimental to learning.

Can You Spot a Sick Sandwich? Jimmy Johns Fires Employees

A Jimmy Johns shop required employees to report to work unless they found a replacement for their shift— even when employees said they were sick. The company didn’t change its rule, so employees joined a union organizing campaign. Near the restaurant, they handed out these fliers (see above). The fliers suggested the possibility that a sick worker is contagious to a customer. The employees were fired.

The NLRB ruled that their fliers were protected under federal labor law. Jimmy Johns appealed.

Now, a federal appeals court has sided with the workers and the NLRB. Judge Jane Kelly wrote for the court that exaggerated rhetoric is common in labor disputes and was protected during a publicity campaign by Minnesota restaurant workers.

The test for protected speech is whether employees are “malicious,” meaning that they invent damaging lies about an employer’s products or services. In this case, the evidence showed that the shop required employees to report to work while sick. Judge Kelly’s opinion said the NLRB had sufficient evidence to conclude the employees’ claims about the company’s leave policy weren't intentionally false or maliciously motivated.

Think about how many paid sick days this store could have granted instead of spending a small fortune litigating before an administrative law judge, the NLRB in Washington, and the Eighth Circuit Court of Appeals.

What Would Rauner Say? Illinois Average Income Rose 3.7% in 2015

Personal incomes rose an average of 3.7% in Illinois last year, according to Department of Commerce data. This ranks Illinois 31^st in the U.S. The data are at sharp odds with Bruce Rauner’s mantra that Illinois is the worst state in the nation to live and do business. Details are here: Click here for details.

Judge Merrick Garland’s Whale of a Case

President Obama’s nominee to the Supreme Court recently decided a case against Sea World. There, the Occupational Safety and Health Administration proposed a $70,000 fine after a Sea World trainer was dragged to the bottom of the tank and drowned by Tilikum, a killer whale. ProfLERoy presents this interesting contrast between two powerful federal appeals judges, Judge Garland and Judge Brett Kavanaugh (who dissented)

JUDGE GARLAND: The record evidence showed that SeaWorld’s training and protocols did not prevent continued incidents, including the submerging and biting of one trainer in 2006, the killing of a trainer by a SeaWorld-trained and—owned killer whale in 2009 at an amusement park in Spain, and Ms. Brancheau’s death in 2010. SeaWorld employees repeatedly acknowledged the unpredictability of its killer whales. This record evidence supports the ALJ’s finding that existing protocols were inadequate to eliminate or materially reduce the hazard to SeaWorld's trainer employees performing with killer whales.

Abatement is “feasible” when it is “economically and technologically capable of being done.” After Ms. Brancheau’s death, SeaWorld required that all trainers work with Tilikum from a minimum distance or behind a barrier, and “waterwork” ceased with all of its killer whales. SeaWorld’s use of protective contact with Tilikum, the three-year moratorium on “waterwork” after Ms. Brancheau’s death, and repeated temporary cessation of “waterwork” with all killer whales or particular killer whales after other incidents support the finding that these changes were feasible and would not fundamentally alter the nature of the trainers' employment or SeaWorld’s business.

Given evidence of continued incidents of aggressive behavior by killer whales toward trainers notwithstanding SeaWorld’s training, operant conditioning practices, and emergency measures, SeaWorld could have anticipated that abatement measures it had applied after other incidents would be required. [RULING FOR OSHA]

JUDGE KAVANAUGH, dissenting:

Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter's box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.

But the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk—is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so. Americans like to witness the thrill of victory, to cheer the linebacker who hammers the running back at the goal line, to yell with admiration as Derek Jeter flies into the stands down the left-field line to make a catch, to applaud the gymnast who nails the back flip off the balance beam, to hold their collective breath as Jack Hanna plays with pythons, to root on the marathoner who is near collapse at the finish line, to scream “Foreman” when the announcer says “Down goes Frazier.” And American spectators also commiserate during the “agony of defeat,” as immortalized in the Wide World of Sports video of a ski jumper flying horribly off course.

The broad question implicated by this case is this: When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?

[T]he bureaucracy at the U.S. Department of Labor has not traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball, to separate the lions from the tamers at the circus, or the like.

In this case, however, the Department departed from tradition and stormed headlong into a new regulatory arena. The Department issued a citation to SeaWorld that effectively bans SeaWorld from continuing a longstanding and popular (albeit by definition somewhat dangerous) show in which SeaWorld trainers play with and interact with whales. The Department’s SeaWorld decision was upheld administratively by the independent Occupational Safety and Health Review Commission,1 and the majority opinion today affirms.

Whether SeaWorld’s show is unreasonably dangerous to participants and should be banned or changed is not the question before us. The question before us is whether the Department of Labor has authority under current law to make that decision—in addition to the authority already possessed by Congress, state legislatures, state regulators, and courts applying state tort law.

Big Win for Workers at Supreme Court

The Supreme Court today ruled that employees can use statistical estimates of underpayment for their work. The case involved Tyson's failure to pay meat processing employees adequately for donning and doffing protective gear before and after leaving the production room.

In a class action lawsuit, Tyson argued that it would be unfair to use estimates of underpayment. The employees argued that courts have been using this method for many years; and in any event, employers have an obligation to track employee work time. Failure to do so should not result in an employer not paying its workers.

Today, the Court ruled 6-2 in favor of the employees. Justice Kennedy wrote the opinion (somewhat of a surprise). He and Chief Justice Roberts joined Justices Somotmayor, Gisnburg, Kagan, and Breyer.

What does the ruling mean? 1. The Court is not in a state of paralysis with a 4-to-4 split between conservative and liberal justices. 2. The nation's wage-and-hour law was strengthened., and 3. Class action lawsuits still have some traction, a win for the little guy.

Porn Judge Available for Trump's Supreme Court, Could Fill Scalia Seat

Add another judge who would meet President Trump's litmus tests for judicial temperament and judgment on the U.S. Supreme Court. Pennsylvania Supreme Court Justice Michael Eakin retired after facing an ethics trial stemming from tawdry emails he sent from his office computer. Good news for Trump: Eakin is a Republican (but note, a Democratic Justice was also brought down by this scandal). Better yet for Trump, Eakin exchanged emails of naked women, sexually suggestive themes, gender and socioeconomic stereotypes, and content that was anti-gay and made light of violence toward women. The only knock on Eakin is that he has apologized-- tearfully-- for his misconduct.  That might hurt his chances for President Trump's nomination.

Did Scalia Have a Racial Grading Curve at University of Chicago Law School?

A group of highly accomplished lawyers, all black and all University of Chicago Law School grads, now report that then-Prof. Scalia gave them D or F grades. To put this in perspective that law school has a grading curve that informs instructors that fewer than 1% of their grades should be a D or an F. The Chicago Maroon reports that Arnim Johnson (black law grad, U of C) believed that Scalia intended to widen the gap between himself and blacks. Other UChicago law grads corroborated Johnson’s accusations against Scalia. In an interview for Gawker, Ben Streeter, an attorney with the Federal Election Commission and graduate of the UChicago Law School, stated that he observed Scalia’s preferential treatment of conservative white students. According to Streeter, the final exam for Scalia’s administrative law class covered material that had not been discussed in class and that students would only have known had they spoken with Scalia outside of the classroom.

Trump’s Matzah Lawsuit: Dough Fails to Rise at VIP Passover Event

While campaign ads focus on Trump as a defendant in lawsuits (e.g., Trump University), he has an unusual pattern of suing others—unusual for its scale and harshness. Two labor cases make the point. The Trump Plaza Doral Hotel in Miami organized a 10-day Passover event, and hired a catering company.  The firm he engaged failed to pay 57 servers, cooks, and managers. They were owed $139,067. But the catering company says it’s not responsible— Trump’s hotel outsourced the hiring to a staffing company. Trump’s lawsuit disclaims responsibility for paying anything to the workers. He brought suit to shift the responsibility to others. The workers sued on a theory of joint employment—that is, the hotel arranged the tour, provided space, and benefitted from the labor, so Trump can’t avoid some or all responsibility. The matter is pending.

In another lawsuit, last October Trump sued Culinary Workers Union Local 226 after members distributed a flier at a campaign event. The union informed the public that Trump stayed at the rival Treasure Island Hotel, dissing his own hotel. Trump’s suit says the point of the leafletting was to damage the reputation of Trump Hotel Las Vegas. The union— now defendant— said its leaflet showed that Trump is a hypocrite, a phony corporate leader who stayed a mile away from his own Vegas hotel.

“Big Data” Shines New Light on Less Pay for Women

Data mining has come to the study of gender inequality. For more than 30 years, researchers have studied causes of inequality—almost entirely focused on individual attributes and attitudes toward women. These still matter, but a new field called “people analytics” exposes discriminatory organizational practices that were not uncovered.

A case in point is a large-data crunch by Prof. Janice Fanning Madden of the Wharton School (Penn). Her research finds that female stockbrokers in two of the largest U.S. brokerage firms made less money than their male counterparts because they were given worse-performing accounts to start with.

The Fragmentation of Labor Law

Today’s Wall Street Journal editorial laments Seattle’s effort to ignore the National Labor Relations Act by creating a collective bargaining law for Uber drivers. Yes, WSJ is right; this is a bad idea. The national labor law excludes “independent contractors.” Seattle would say, Uber drivers are not really independent contractors. ProfLERoy has agreed with Seattle’s view.

Seattle’s mistake is to localize a law that Congress clearly intended to be national in scope.

Bruce Rauner makes the same conceptual mistake in Illinois. His “turnaround” agenda includes several ideas that ignore the national labor law. One allows local laws to supesede the NLRA. For example, he would a right-to-work law that would allow a city or county to ignore the federal law that allows unions to negotiate mandatory dues clauses.

If Seattle and Illinois can localize labor law, so can everyone else—and then, we’ll return to chaos and street violence of the early 1900s (pictured above in a context that parallels labor demonstrations 80 years ago). The NLRA-- for all its faults-- is stable, predictable, and uniform in character, whether you are in DuPage County in Illinois or Seattle. 

Would President Trump Impose Martial Law?

My wise friend asked this question over breakfast this morning at LaPeep. I almost choked on my veggie omelet. Remarkably, that seems possible, especially if the U.S. had a Boston Marathon or San Barnardino-type attack on his watch. Would Trump round up all Muslims and put them in concentration camps? Or would he use this power to round up 11 million unlawful aliens?

So, here is the short answer: Congress enacted a statute in 1878, the Posse Comitatus Act, which forbids military involvement in domestic law enforcement without congressional approval. It came about after more than a decade of federal occupation of former Confederate states (recall Reconstruction). A bitterly disputed presidential election, somewhat similar to Bush-Gore in 2000, was the impetus for the law. It’s been invoked only once, when President Eisenhower used federal troops to enforce a school desegregation ruling by the U.S. Supreme Court. There, now, are you relieved? I didn’t think so. (Note: Both chambers of Congress are under Republican control, so....) 

Heil Trump?

It is now widely reported that some Donald Trump supporters raise their right arms at his rallies. Trump dismisses direct knowledge or approval of the behavior without denouncing the salute. So, it is time to remember that special courts were established in 1934 to punish people who refused to give the heil salute. This picture purports to show the Portuguese Consul General in a lineup for a beating after refusing to give the salute.

Reagan-Bush Debate Immigration, 1980: When the GOP Was Substantive

From my immigration law class today, a student presented this two minute YouTube. It’s a must see, if you want to measure how far the GOP has fallen. Click here. Hats off and deep appreciation to these two Republican presidents.

Jared Taylor and “Racial Realism”: Why You Need to Know

If Donald Trump is elected as President, he would need policy advisers to translate his harsh anti-immigration, KKK-tolerant stances into real policy. Meet Jared Taylor, a Yale educated advocate of “racial realism.” Recently, he endorsed Trump and his robo-message was apparently used to mobilize Iowa voters.

According to a report from the Southern Poverty Law Center (click here for more), Taylor’s published ideas and views include: 

"Blacks and whites are different. When blacks are left entirely to their own devices, Western civilization — any kind of civilization — disappears."

— American Renaissance, 2005

"Our rulers and media executives will try to turn the story of Hurricane Katrina into yet another morality tale of downtrodden blacks and heartless whites... . [But m]any whites will realize — some for the first time — that we have Africa in our midst, that utterly alien Africa of road-side corpses, cruelty, and anarchy that they thought could never wash up on our shores."

— American Renaissance, 2005

"At its most basic, racial consciousness has as its goal the preservation of a certain people. Its aim is to rekindle among whites what every previous generation until recently so took for granted they did not even give it a name: an instinctive preference for their own people and culture, and a strong desire that they should prosper. I note that every other racial group acts on this healthy instinct and desire. Race realism therefore has no theory of religion, the family, art, or the role of government, except in the very general sense that it expects whites to love, first and foremost, the infinite riches created by European man."

— American Renaissance website, July 3, 2008

For first-time readers of ProfLERoy, I find these views abhorrent, deeply troubling, and shockingly appealing to many Trump supporters.

Rethinking Symbols

This image is Harvard Law School’s symbol. It is controversial because it shows three bundles of wheat, an image borrowed from the family crest of Isaac Royall, Jr. This benefactor donated his estate to create the first law professorship at Harvard University. His father, Isaac Royall Sr., made much of the family wealth from slaves on Caribbean sugar plantations and Massachusetts farms.

Do you think it matters that Royall Jr. did not own slaves himself? Does it matter that the money he gave came from slave labor? For my part, I am ambivalent. My father was a laborer in a Nazi concentration camp; and for years, he refused to buy anything German. Before he died, he bought a new Mercedes Benz, and said it was time to forgive—and not visit the sins of the father on the son. 

Rauner, Stop Badmouthing Us: Illinois Outperforms Texas, NY, Others:

Illinois has serious problems, but the Rauner Turnaround agenda paints unions as a huge drag on the state’s economy, and promotes the idea that no sane person would want to do business here. In just-released data for 3^rd quarter GDP by state, Illinois ranked 37^th—ahead of Texas (49^th, and a notable nonunion state), Oklahoma (ditto), Wyoming (ditto), New Mexico (ditto), Virginia (ditto), and Louisiana (ditto). Illinois also ranked ahead of states where unions are a significant presence: Nevada, Washington, New York, Delaware, and New Jersey. Two main takeaways here: our Governor should stop his fear-mongering efforts to discourage businesses from remaining here; and looking at the data, the presence or the absence of unions in a state’s economy doesn’t seem to make a big difference, one way or another. For more, see the Wall Street Journal: click here. 

Unofficially, Boycott County Market This Weekend

As Unofficial (a binge drinking event) starts at UIUC, County Market on campus has made large, front-store displays of on-sale liquor, in minis and full bottles. The store apparently wants in on the action of selling booze to thousands of nearby UIUC students—and many others who come to town for this weekend drinking event.

While County Market makes a few bucks off these sales, the store increases the odds that one or more women will be sexually assaulted at a party in a nearby apartment or res hall, and that students will need treatment in the emergency room for alcohol poisoning. That’s if Unofficial is mild. On bad Unofficials, students fall off balconies several floors above concrete. One year, a visiting student died in the middle of campustown after she fell off a motorcycle.

Whatever County Market makes off this irresponsible marketing (County Market won’t pay for the ER bills; they won’t answer to any young woman who might be assaulted because of their product; and the campus they serve is rated as the #1 party school in the U.S., due in part to this type of make-a-buck-off-drunk-kids attitude), let’s subtract our purchases this weekend from their liquor sales. 

Humpty Trumpty: Wishing on a Rhyme

Humpty Trumpty had a great (Mexican) wall,

Humpty Trumpty had a great (election) fall,

All the Duke’s horses, and

All the Duke’s men,

Couldn’t put Trumpty together again.

Bully/A-Hole Ticket Promises to Stir-Up More Workplace Bias

Today, ProfLERoy takes readers to a lawsuit involving white workers, who were viewing the Republican National Convention while at work in 2004, and simultaneously harassing a black, female co-worker. The case is Williams v. CSX Transp. Co., Inc., 643 F.3d 502 (6th Cir. 2011). According to Stephanie Williams, Jeff Wingo and Tim Magargle, two supervisors, were watching the Republican National Convention on television on the evening of September 2, 2004 when Williams entered and indicated she did not want to watch. Wingo allegedly told Williams that she was a Democrat only because she was a black woman; that unmarried women cannot “have the love of God in their heart[s]”; and that this country should “get rid of” Jesse Jackson and Al Sharpton because without those two “monkeys” the country “would be a whole lot better.” The following day, Williams alleged that Wingo told her that if she returned to school, she would not have to pay for her education because she was a single black mother.... Wingo also asked Williams why black people cannot name their children “stuff that people can pronounce, like John or Sue.” It got worse for Stephanie: “Ed Anderson, a supervisor, required her to clean feces off the walls of a restroom and out of a urinal, and that her white male counterparts never had to complete such a task.” The district and appeals courts dismissed her lawsuit because the conduct of her harassers was not pervasive or severe. The location of the court probably had something to do with the outcome: Tennessee. Trump won Tennessee yesterday, besting second-place Ted Cruz by a 38.9% to 24.7% tally.  

How Would President Trump Affect Your Job?

The following analysis will appear in a journal for lawyers, but may interest ProfLERoy readers.

How would a U.S. President who views discrimination as a virtue reshape employment law? That is the main question posed for employment lawyers who would advise clients during a Trump presidency. While the Trump campaign has been light on policy specifics, it has promised to deport 11 million unlawful aliens, and bar all Muslims from entering the U.S. The candidate has insulted women for menstruation, and raised the Ku Klux Klan from obscurity to mainstream politics. But how, specifically, would these messages translate into employment policies?

Immigration:  If Trump has a signature policy objective, it is to end illegal immigration swiftly and completely. However he accomplishes this goal, employers would face new legal duties and penalties. If Trump proceeded down a “reasonable path” (one that has legal precedent, even if ill-advised), he would use Arizona as a model. The Supreme Court, in Chamber of Commerce of U.S. v. Whiting,[1] upheld a very strict immigration law that requires all Arizona employers to use the federal government’s E-Verify system. The U.S., by contrast, makes E-Verify optional to verify work authorization. This is because E-Verify is not completely reliable.

But that’s just the start to the “reasonable path.” Arizona applies the death penalty to any business that commits two willful violations of immigration law by pulling its license (charter) to do business. This approach is deeply flawed: it over-penalizes employers, and also encourages employers to discriminate— against Latinos, in particular. President Trump might take this approach, with the help of Congress or by executive order.  

There is another “reasonable path” for President Trump: an executive order to debar federal contractors—essentially, many large U.S. companies— from doing business with the U.S. The only thing reasonable about the approach is that presidents have used executive orders extensively to achieve social policy objectives in the workplace. But Trump would be swimming against a stream of Democratic and Republication executive orders that tore down discriminatory barriers. As I explained in Presidential Regulation of Private Employment,[2] President Roosevelt used executive orders to end racial segregation in munitions factories. President Kennedy initiated the concept of “affirmative action” in Exec. Order No. 10,925.[3] The order expanded employer duties beyond refraining from discrimination to promoting “full equality of employment opportunity.” In other words, Trump might use executive orders in reverse, to remove employer obligations for equal opportunity.

But Trump has a proclivity for the unreasonable. He relishes action and boldness, and draws inspiration from Mussolini. So, he could take stronger action by pushing Congress to enact the employment provisions of Arizona S.B. 1070, a harsh law designed to motivate unlawful immigrants to leave the state. More dramatically, he could implement S.B. 1070’s employment provisions in an executive order. The fact that President Obama has made extensive and often questionable use of executive orders, especially in the immigration field, would provide ample pretext for this constitutional usurpation.

The Supreme Court struck down the employment provisions of S.B. 1070 in Arizona v. U.S.[4] The Court ruled that Arizona could not criminalize the employment of illegal aliens because this upset the careful balance that Congress struck in the Immigration Reform and Control Act (IRCA). In that 1986 law, Congress subjected employers and employees to fines when they violate the verification process, and saved criminal sanctions for repeated or severe violations.  

S.B. 1070’s employment provisions were struck down because they interfered with federal law. However, nothing in Arizona v. U.S. precludes Congress from making employers criminally liable for immigration lapses. Bad public policy? Yes, because it discourages businesses from offering jobs by criminalizing the hiring process. Popular with the growing Trump base? Unfortunately, yes. The solution for employers? Take more jobs out of the country, and avoid going to jail for hiring the wrong people.

Trump’s plan to deport 11 million people would create several million job vacancies, especially in industries tied to agriculture, construction, hospitality, and health care. To accomplish this goal, President Trump would need to force employers to uproot these people.

Employers could be required—on pain of a severe penalty—to reverify the status of every employee, from bottom to top in the organization. And re-verify again and again, perhaps on a quarterly basis. If there is a discrepancy between a Social Security number and the person’s name in the Social Security database, Trump could accomplish his aim with a law that requires employers to fire everyone with a mismatch.

Yes, you’re fired… and you, you’re fired… and you, you’re fired, until no unlawful aliens are employed. Trump knows how to fire people; it comes readily to him; and he enjoys it.

The difference between firing a celebrity apprentice and a real employee is that the Social Security database has millions of mismatched records, where a name and number are not properly matched. This large number is due to changes in marital names (marriages and divorces separately inject error into the system). Hyphenated names also create mismatches. Scanning and poor handwriting also introduce errors—and to Trump’s valid point, so does widespread fraud.

But to boil this down, Trump’s zeal to rid America of illegal aliens would compel employers to fire many citizens and authorized aliens, along with people who are not authorized to work. Apart from leaving firms with gaping holes, these shot-gun terminations would get employers into nearly certain trouble for firing workers who have an employment contract or a collective bargaining agreement.

Religious Discrimination: The San Bernardino massacre occurred at workplace where a holiday party was in progress. It was a terror attack perpetrated by supporters of ISIS. But Trump grossly overreacted to the tragedy when he said he would bar all Muslims from entering the United States.

Let’s slow down his idea and see how it would impact employers. Many foreign Muslims work in the U.S. lawfully under EB, H-1B, treaty trader, and other visas. Technology companies likely employ thousands of Muslims from India, Pakistan and other Asian nations. Muslim health care workers ranging from exceptionally accomplished physicians to nurses are employed here on visas. Universities almost certainly employ thousands of Muslim faculty on visas across a wide spectrum of disciplines.

For perspective, a recent U.S. Citizenship and Immigration Services report states that workers from India were granted 82,263 H-1B “initial employment” visas in FY 2014 (see Characteristics of H-1B Specialty Occupation Workers[5]).

About 14% of Indians are Muslims, suggesting that the U.S. granted H-1B visas in 2014 to 11,516 Indian Muslims. Trump’s plan would categorically bar these workers.

Even pro sports would be affected. Ersan Ilyasova is a power forward for the Orlando Magic. He’s good, averaging 11 points and 5 rebounds per game. He is also Turkish and Muslim. The Magic would need to keep him at home during road trips to Toronto because Trump’s entry-bar would prevent him from returning to play in the U.S. And the player would not be able to visit his homeland during the off-season.

Taking Trump literally, if these workers are already in the U.S., they would be immune from his exclusion order. But employers would be unable to hire Muslims who are currently abroad. Muslims who are temporarily out of the U.S.—not necessarily back home, but at an international conference in Vancouver—would be barred re-entry to the U.S. Many Muslim visa-holders in the U.S. would feel trapped here by an irrational policy that denies their re-entry.

There is precedent for this type of prejudice. In the 1870s, the U.S. was gripped by hatred for Chinese workers who came here in an “Oriental invasion,” a term used by the Supreme Court in Chae Chan Ping v. U.S.[6] That ruling sustained the constitutionality of Chinese Exclusion Act. Chae Chan Ping has little negative authority. It remains good law—probably because no one has bothered to talk about it since Congress repealed the Chinese Exclusion Act in 1943. But if President Trump cited Chae Chan Ping as authority to bar foreign Muslims from entering the U.S., he would not be wrong. True to form, however, he would fail to mention that Congress eventually repealed the law, after lawmakers concluded that exclusion of an entire people was unconscionable at a time when Hitler’s Germany was implementing its Final Solution.

Race Discrimination: Donald Trump is not the first public figure to dabble in Ku Klux Klan politics. Others included Sen. Robert Byrd, Justice Hugo Black, and to a lesser degree, Harry Truman. Trump has energized “white heritage” voters, and has given a modicum of respectability to fringe groups that were driven underground. Given his need to satisfy these voters, it’s not hard to think of important race discrimination cases that could be reversed by President Trump’s EEOC.

Under President Reagan, this agency filed a lawsuit against a small manufacturer on the southwest side of Chicago. From 1979 until 1985, O & G hired 87 people—but not one African-American. The reason the agency pulled that case from a large stack of others is that no evidence—other than statistics—indicated intent to discriminate. The EEOC retained an urban planning expert, Dr. Pierre DeVise, who concluded that that African–American availability in the relevant labor market ranged from 22.5% to 31%. The trial court—finding for the EEOC— said that “the statistical probability using standard deviation analysis of no black hires during the period 1979 through 1985 was infinitesimal.” In other words, intentional discrimination was legally inferable from the statistics—a key ruling that has been used in many other cases to unmask stealthy discrimination. The court ordered damages of $378,000. E.E.O.C. v. O & G Spring and Wire Forms Specialty Co.,[7] is the kind of case that Trump’s EEOC might take down.

Gender Discrimination: Since Meritor Savings Bank v. Vinson,[8] the Supreme Court has deferred to the EEOC’s broad definition of “hostile work environment.” That decision was authored by Justice William Rehnquist, with no dissenting opinion. “Hostile work environment” has been interpreted by the EEOC and courts to prohibit demeaning words used against women. Currently, the EEOC advises that “it is illegal to harass a woman by making offensive comments about women in general.” http://www.eeoc.gov/laws/types/sexual_harassment.cfm.

More specifically, courts have ruled that “gender specific” words such as “bitch” and “whore” in the workplace could support a sexual harassment lawsuit. E.g., Reeves v. C.H. Robinson Worldwide.[9] The crux of hostile work environment law is not a PC guide of allowable and prohibited words—it is whether words or behaviors interfere with a woman’s conditions of employment. With this as background, recall that Trump verbally attacked a female Fox News reporter by making her the subject of deeply demeaning “bleeding” insult. While uncommon, situations arise where male managers ridicule and deny privacy to menstruating women, with resulting litigation (e.g., Graces v. R & K Spero Co., LLC). [10]  Trump’s verbal abuse of Megyn Kelly does not translate into a policy as much as it conveys an open disregard for the civil treatment of women at work.

Prognosis: President Trump would create new legal headaches for employers. His bully pulpit would embolden more bullies to express and act on their unlawful workplace biases. More concretely, he would force employers to choose between cooperating with his anti-immigrant, anti-Muslim policies and paying heavily for noncompliance. For the employment law bar, Trump’s election would likely increase billable hours.

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[1] 563 U.S. 582 (2011).

[2] 37 B.C. L. Rev. 229 (1996), http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2040&context=bclr.

[3] 26 Fed. Reg. 1977 (1961).

[4] 132 S.Ct. 2492 (2012).

[5] https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-1B/h-1B-characteristics-report-14.pdf), at p. 7.

[6] 130 U.S. 581 (1889).

[7] 38 F.3d 872 (7th Cir. 1993).

[8] 477 U.S. 57 (1986).

[9] 594 F.3d 798 (11th Cir. 2012).

[10] 2009 WL 1814510 (Conn. 2009).

New Law Allows Pension Plan Cuts

Benefits under a defined benefit pension could only be altered in bankruptcy until passage of the Kline-Miller Multiemployer Pension Reform Act of 2014. Details are here. The new law established a process for certain pension plans to implement a temporary or permanent reduction of pension benefits— but only if the plan is projected to run out of money. For 200,000 retirees under the Teamsters’ Central States Pension Fund, that is now happening. Read more here. 

On the one hand, plans are able to renege on a decades-long assurance that retirees would have a stable income in retirement. On the other hand, the Teamsters plan implemented the change because it has $35 billion in liabilities and only $18 billion in assets. The plan is trying to save money for all participants. The law applies only to private sector, multiemployer plans (usually, plans bargained by unions and employers).