Tuesday, May 31, 2016

“I Love the Poorly Educated”— But Trump Casino Workers Lose Wages, Benefits in Bankruptcy

Today, the Supreme Court rejected a union's appeal of a lower court's ruling that allowed Atlantic City's Trump Taj Mahal casino to break its contract with union workers to secure a bankruptcy rescue deal. This was Trump’s casino until billionaire investor Carl Icahn “rescued” it in 2015.

In 2014, Trump Entertainment Resorts Inc. filed for bankruptcy. Last year, a U.S. bankruptcy judge allowed Trump to impose a new lower-cost contract on unionized workers in order to secure Icahn's rescue deal. No wonder Trump says, “I love the poorly educated.”

Saturday, May 28, 2016

"Berning" the High Court: Suggestions for Samders' Nominees

(To be published in Law360)... Bernie Sanders has not yet named his nominees for the Supreme Court. But given his increasingly parallel track with Donald Trump, here’s thinking ahead on possible Sanders nominees. The main criterion for this short list is the apparently pro-worker tilt of these judges—a tilt that could endear them to a candidate who speaks loudly for a $15 an hour minimum wage. As in my earlier column for Trump, I offer disclaimers. First, I don’t plan to vote for Sanders. In addition, this sample is not scientific—not even close. But it offers food for thought—and to a degree, it shows how courts today are pushing back on corporate work models that cut costs to the bone and erode traditional employment. I selected judges on the basis of recent pro-worker rulings, surmising that Sanders might go down this path.
Judge Edward Chen, U.S. District Court, Northern District, California: This judge’s lengthy ruling in O’Connor v. Uber Technologies, Inc., 82 F.Supp.3d 1133 (N.D. Cal. 2015), is pivotal in the current wave of litigation that challenges Uber’s model of using independent contractors for ridesharing. This ruling denied Uber’s summary judgment motion regarding the firm’s view that drivers are not employees. Sanders would probably like Judge Chen’s take-down of Uber’s position that it is not really a transportation company. The judge said, to the contrary and with considerable spitfire: “Uber engineered a software method to connect drivers with passengers, but this is merely one instrumentality used in the context of its larger business. Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs, John Deere is a ‘technology company’ because it uses computers and robots to manufacture lawn mowers, or Domino Sugar is a ‘technology company’ because it uses modern irrigation techniques to grow its sugar cane. Indeed, very few (if any) firms are not technology companies if one focuses solely on how they create or distribute their products.”
In contrast to Donald Trump, whose ideology changes with his current audience, Sanders is a rigid and strident ideologue. There is no indication that Judge Chen is similarly aligned; however, his unrestrained and overly-exuberant rejection of Uber Technologies’ silly argument would indicate the kind of judicial temperament suitable for a Sanders nomination.
Judge Claudia Wilken, U.S. District Court, Northern District, California: For context, courts have begun to tiptoe into the vocabulary of “athletic labor” when ruling on claims by NCAA players (for more, see my Arizona Law Review article, “Courts and the Future of ‘Athletic Labor’ in College Sports,” http://arizonalawreview.org/courts-and-the-future-of-athletic-labor-in-college-sports/). In 2014, Judge Wilken ruled for former UCLA basketball star, Ed O’Bannon, and his class action co-plaintiffs. At issue was the widespread commercial exploitation by NCAA schools of athletes’ images and likenesses without sharing the wealth with players. The NCAA’s position was indefensibly greedy and hypocritical, grounded in the idea that these players were student athletes whose receipt of licensing revenues would spoil their amateur status.
Sanders might like Judge Wilken’s completely arbitrary award of damages to NCAA athletes. She ordered the NCAA to pay each player up to $5,000 per year. Sanders might also like the rough-justice approach taken by Judge Wilken. She pulled that figure from a brief interchange during plaintiffs’ cross-examination of one of the NCAA’s witnesses. Under oath, Neal Pilson, a television sports consultant formerly employed at CBS, made the unremarkable statement, “if you’re paid for your performance, you’re not an amateur.” He was pressed on cross exam to guess the NIL (name-image-likeness) value for NCAA student athletes. After declining to guess several times, he caved and said: “I tell you that a million dollars would trouble me and $5,000 wouldn’t, but that’s a pretty good range.”
The Ninth Circuit— a court that tilts in favor of employees— overturned this key part of Judge Wilken’s ruling.  But to Bernie Sanders, results trump process; and so, a judge who wildly guesses at damages in a way that transfers billions of dollars from a big, bad monopoly to oppressed college athletes would be a plus for Judge Wilken.
Justice Mary Kristina Pickering, Nevada Supreme Court: Justice Pickering wrote a carefully reasoned and exhaustively researched opinion in Terry v. Sapphire Gentlemen’s Club, 336 P.3d 951 (2014). I admit, I like the ruling; and I feature it in my forthcoming article, “Bare Minimum: Stripping Pay for Independent Contractors in the Share Economy,” in the Journal of Women and the Law (2017). Strip clubs are more abusive to women than people realize. Clubs eschew employment in favor of independent contracting with dancers. They pay no wages or benefits; patrons pay dancers with fees and tips. But clubs extract entry fees to work; require renting of dressing rooms and stage time; and compel tip-sharing with DJs, emcees, house moms, bouncers and bartenders. By transmuting employment into tenant and contractor relationships, clubs monetize a dancer’s labor into phony assets that pay for her co-workers.
Sapphire Gentlemen’s Club is the largest of its kind in the U.S., and employs— or contracts with, in their view— 6,600 dancers. Justice Pickering’s opinion found that the dancers were employees, not contractors, under state wage and hour laws. Unless you own and operate one of these clubs, you’re likely to agree with Justice Pickering.
But it’s Justice Pickering’s expansive language about safeguarding women from exploitation—all of it justified— that would make good campaign material for wooing women who support Hillary Clinton: “[T]his court is mindful that Sapphire’s supposed lack of control may actually reflect a framework of false autonomy that gives performers a coercive choice between accruing debt to the club or redrawing personal boundaries of consent and bodily integrity. Sapphire emphasizes that performers may choose not to dance on stage at Sapphire so long as they also choose to pay an optional off-stage fee, and similarly that a performer may choose not to dance for a patron she knows will pay with dance dollars, she may make that choice, though the performer may not ask that patron to pay in cash, and in making either choice the performers also risk taking a net loss for their shift. But by forcing them to make such choices, Sapphire is actually able to heavily monitor [the performers], including dictating their appearance, interactions with customers, work schedules and minute to minute movements when working, while ostensibly ceding control to them. This reality undermines Sapphire’s characterization of the choices it offers performers and the freedom it suggests that these choices allow them; the performers are, for all practical purposes, not on a pedestal, but in a cage.” That kind of language would broaden Sanders’ populist appeal.
Judge John Koetl, U.S. District Court, Southern District, New York: Judge Koetl graduated from Harvard Law in 1971, only seven years after Sanders graduated from the University of Chicago. Both men, however, are folk heroes to millennials. In a highly consequential ruling, Marshall v. UBS Financial Services, Inc., 2015 WL 4095232 (S.D.N.Y 2015), Judge Koetl dismissed the large bank’s argument for not paying student interns. Christopher Marshall worked two days each week, usually four to five hours per day, updating spreadsheets and cold-calling potential customers. He was not paid a dime for his work—and his work was not connected to academic credit. Judge Koetl’s recent ruling cleared the way for this wage and hour lawsuit to proceed.
Compared to other judges on the Sanders short list, Judge Koetl writes in a more restrained style. Still, this ruling shows enough glimpses of judicial populism: “Workers cannot choose whether to be covered under the FLSA, and thus, a worker’s expectations cannot determine eligibility for wage protection. Even if a worker vehemently protested protection under the FLSA, an employer would still be obligated to comply with its statutory obligations.”
Judge Susan Richard Nelson, U.S. District Court, Minnesota: Professional athletes have come to love this court because they win major rulings here as often as it snows. In Brady v. National Football League, 779 F.Supp.2d 992 (D.Minn. 2011), she ignored appellate rulings from around the country over the previous 20 years that turned back player antitrust lawsuits on grounds that the Sherman and Clayton Acts have a very broad exemption for collective bargaining relationships. In 2011, just as the CBA between the NFL and players union was set to expire, the players strategically de-authorized their labor union. This was to enable Tom Brady to be their lead, class action plaintiff—as a player, not as a union member— if and when the NFL locked out the players to extract concessions. A few hours later, the league did, in fact, impose a lockout.
The legal question was whether a collective bargaining relationship survived Tom Brady’s game of hide-and-seek. Playing along with peekaboo justice, Judge Nelson enjoined the NFL. Her logic and overwrought language, deployed in behalf of multi-millionaire football players pretending to be an oppressed group of workers, scores points for the Sanders litmus test. In her view, to “propose, as the NFL does, that a labor dispute extends indefinitely beyond the disclaimer of union representation is fraught with peril.” A few months later, the Eighth Circuit vacated her injunction— a ruling that paved the way to a quick settlement at the bargaining table. More recently, Judge Nelson ruled in favor of National Hockey League players, who alleged the league was negligent in failing to warn about the dangers of concussions. See In re National Hockey League Players’ Concussion Injury Litigation, 2016 WL 2901736 (D.Minn. 2016).

ASSESSMENT: Judges on this short-list ruled against monopolistic employers and financial behemoths— the NFL, NCAA, UBS, and Uber, not to mention the corporate colossus that runs strip shows. The O’Bannon ruling by Judge Wilken was nakedly redistributive, the kind of Robin Hood justice that qualifies for a seat on the Sanders Court. Others are much better grounded in law, and simply have the coincidental effect of putting large dents in corporate models that are designed to eviscerate traditional employment. Finally, the plaintiffs in these important and recent cases match key groups in the Sanders camp— college students, and also alienated workers who chafe at their phony status as “independent contractors,” believing, as these judges do, that they are really employees.

Thursday, May 26, 2016

Why Would Judge Steigmann Donate $1,000 to a Champaign County Public Defender?

 
Contributed By
Amount
Received By
Description
Vendor Name
Vendor Address
Kimme, Doug
75 Glenbrook Lane

Fisher, IL 61843
$168.00
2/26/2016
In-Kind Contribution
Friends of George Vargas
Pr

0
Reed, John
512 South Highland Rd

Champaign, IL 61821
$200.00
9/3/2015
Individual Contribution
Friends of George Vargas
Steigmann, Robert J
602 East Evergreen Ct

Urbana, IL 61801
Occupation: Judge
Employer: Fourth District Appellate Court
$1,000.00
2/18/2016
Individual Contribution
Friends of George Vargas
Records 1 to 3 of 3


On a recent radio show with WDWS, Judge Robert Steigmann contended that judges should be allowed a greater degree of political participation. The question is why? More specifically, why would a sitting judge who hears criminal conviction appeals spend $1,000 on a candidate from the Public Defender office whose cases can be appealed to Judge Steigmann? WDWS ran a show on May 17th to feature Judge Steigmann’s unopposed viewpoint. I am ready to debate the judge on WDWS, and ask him why this type—and size—of campaign contribution is good for the public interest in Champaign County.

My LAW360 Commentary, “Rating Trump’s High Court Nominees in Employment Cases”


Rating Trump’s High Court Nominees In Employment Cases
Share us on:    
Law360, New York (May 26, 2016, 2:03 PM ET) -- 
Michael H. LeRoy %>
Michael H. LeRoy

As Donald Trump mutes his intolerance and vulgarity, he recently announced his possible U.S. Supreme Court nominees. Already, these judges get high marks from judicial analysts as mainstream judges with rock-solid conservative credentials. Less reported but important to know, the Heritage Foundation’s John Malcolm published a list of eight potential nominees on March 30 in the Daily Signal — a list that Trump has mostly cut and pasted in his highly ad hoc approach to institutional questions. Trump seems to be using a branding strategy by tailoring his list to a scholarly conservative group. If it is brilliant politically it also betrays his lack of commitment to, and understanding of, the judiciary.

The question I pose is: How do Trump’s nominees rate in employment and labor law cases? But first, some caveats. I will not vote for Trump. Second, my research sample is preliminary and focuses on five of the 11 nominees. With these disclaimers, I find that these judges are thoughtful, pragmatic and somewhat libertarian in the following employment and labor cases. In these opinions, they appear more temperate than Justice Antonin Scalia.

Judge Brett Kavanaugh (D.C. Court of Appeals)

This important court was at its best in SeaWorld of Florida LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014). Judge Merrick Garland wrote the majority opinion in a fascinating case upholding theOccupational Safety and Health Administration’s fine against SeaWorld for failing to comply with the general duty clause under the Occupational Safety and Health Act. OSHA acted after a whale trainer, Dawn Brancheau, was killed in a pool by Tilikum during a performance before a live audience. Based on SeaWorld’s history of killer whale injuries to its employees, Judge Garland found that the agency had reasonable grounds to impose its fine.

Judge Kavanaugh’s dissenting opinion is thoughtful, provocative — and reflects a libertarian soul. At the same time, it conflicts with Chevron deference to agency expertise. Judge Kavanaugh wrote: “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.”

He observed that “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.”

Judge Kavanaugh’s legal analysis said: “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 U.S. 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.” He believed the agency exceeded its authority.

Judge Steven Colloton (8th Circuit Court of Appeals) 

Judge Colloton wrote an impressive and highly consequential decision in Brady v. National Football League, 644 F.3d 661 (8th Cir. 2011). Recall that NFL players, after a failed strike in 1987, decertified their union and successfully sued the NFL for damages and equitable remedies in the Minnesota district court. Judge David Doty’s 18-year hegemony over this collective bargaining relationship was out of touch with Judge Ralph Winter’s superior understanding of the antitrust labor exemption in National Basketball Association v. Williams, 45 F.3d 684 (2d Cir. 1995). As I noted in a Tulane Law Review article in 2012, Judge Doty’s flawed approach “addicted” players to antitrust litigation by relieving them of the pain of negotiating concessions during regular labor-management negotiations. Serious students of labor law know that federal courts must stay out of the collective bargaining relationship and leave the parties to their own devices.

In Brady, the district court in Minnesota enjoined the NFL’s lockout of players after the CBA expired. This was a legal victory for the lead plaintiff, Tom Brady. The core issue was whether the Norris-LaGuardia Act divested the district court from enjoining the NFL’s lockout. That law — the product of immense frustration by labor unions with the propensity of federal judges to enjoin their lawful strikes, boycotts and pickets — all but removed federal jurisdiction in labor disputes.

Brady’s position was that Norris-LaGuardia applied only to court interference with a union’s use of economic weapons. Wanting to have his cake and eat it, too, Brady said that the district court had jurisdiction to enjoin the NFL’s reciprocal version of a strike — a lockout.

Judge Colloton dismissed this reasoning in these terms: “A one-way interpretation of § 4(a) — prohibiting injunctions against strikes but not against lockouts — would be in tension with the purposes of the Norris-LaGuardia Act to allow free play of economic forces and to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer. We are not convinced that the policy of the act counsels against our textual analysis of [NLGA] § 4(a).”

Judge William Riley (8th Circuit Court of Appeals)

In Gibson v. Caruthersville School District No. 8, 336 F.3d 768 (8th Cir. 2003), this conservative judge wrote an impassioned dissent in support of a probationary teacher who was denied reappointment after a student alleged that the instructor grabbed him by the throat. The teacher exercised his right to a name-clearing hearing in a public proceeding. However, after adjournment in the hearing, the school district refused to allow him to continue with his public defense. The lower court denied the teacher’s petition for a hearing on his nonrenewal; and the appeals court affirmed.

Judge Riley put a heavy emphasis on procedural due process for public employees in this closely reasoned dissent: “The majority rejects what can be reasonably inferred from the facts: the district had no intention of giving Gibson the opportunity to tell his side of the story, and used available procedural means to effectuate its goal. Following the opening hearing round, the district tried to obtain a settlement and a release from Gibson. When that attempt failed, the district closed a critical portion of the public hearing. When Gibson resisted and filed a petition for writ of prohibition to keep the hearing open, the school board voted against renewing Gibson’s teaching contract ... Once the school year ended, the district advised Gibson’s attorney that the termination issue was moot and completion of the hearing was unnecessary.”

Framing this in constitutional terms, Judge Riley reasoned: “The Supreme Court has declared the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed [and] ... the denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”

Judge Thomas Hardiman (3d Circuit Court of Appeals) 

In an important decision, EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote a unanimous opinion that ruled against Allstate’s former employees. As the company reorganized its business to de-emphasize employment of agents, it gave these employees four options: conversion to independent contractor, a buyout with an interest in their sales account, and two severance pay plans. To execute an agreement, employees were required to sign a release of all claims against Allstate. The U.S. Equal Employment Opportunity Commission sued for 6,200 agents, alleging that the waiver requirement was unlawful retaliation in violation of Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

Affirming the lower court, Judge Hardiman ruled that Allstate’s offer to permit terminated employees to convert to independent contractor status was sufficient consideration for the employees’ release of claims against the employer; and the employees’ refusal to sign a release was not a protected activity. At the core of this mainstream ruling, Judge Hardiman’s opinion stated that “the EEOC here fails to articulate any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.” He added: “We acknowledge the commission’s concerns about the prospects of employers trading releases for new business opportunities and terminated employees facing ‘financial pressure’ when offered such a deal. But the EEOC fails to explain why this financial pressure is more offensive to the anti-retaliation statutes than the pressure one is bound to feel when required to sign a release in exchange for severance pay.”

Associate Justice Allison Eid (Colorado Supreme Court): 

Justice Eid’s dissenting opinion in City of Brighton v. Rodriguez, 318 P.3d 496 (Colo. 2014), mirrors a growing trend of employer-friendly worker compensation rulings that narrow the “scope of employment” and “arising out of” predicates for a worker’s recovery.

After Helen Rodriguez, a city administrator, talked with co-workers at the top of a stairway at her office, she walked downstairs and fell suddenly. The steps were dry and clear. She did not trip, slip or lose her balance; nor was she dizzy. At the emergency room, doctors found that she had four unruptured aneurysms on the right side of her brain. Eventually, she had surgery for these aneurysms. At a worker’s compensation hearing, a medical specialist for the city testified that the “most likely” cause of Rodriguez’s fall was a fainting or dizziness episode caused by her aneurysms, although he could not state this conclusion with a reasonable degree of medical probability.

One legal issue was whether the claimant’s personal conditions were so far removed from conditions of work that her resulting injuries were outside the scope of employment. Another issue was whether the injury was caused by a “neutral risk” — a factor not associated with employment or the person. In Colorado, examples of compensable neutral risk-injuries include homicide by car thieves while the employee returns from a work errand and death of a farm-hand by a lightning strike while tending to his employer's horses.

The majority classified Rodriguez’s injury in the neutral risk category — a compensable category — stating that an “unexplained fall is necessarily caused by a neutral risk. Because Rodriguez’s fall would not have occurred but for the fact that the conditions and obligations of her employment — namely, walking to her office during her work day — placed her on the stairs where she fell, her injury ‘arose out of’ employment and is compensable.”

Justice Eid dissented. She faulted the majority for “placing her unexplained fall on equal footing with ‘neutral risks’ like car thieves, lightning bolts or stray bullets. These risks are not merely neutral, however; they are also known.” She continued: “The majority’s error, however, is to expand the concept of ‘neutral risks’ to include injuries that occur at work where the cause is not known. Such an unexplained injury is not categorically ‘neutral,’ as the majority would have it. Rather, an unexplained injury defies categorization ... Unlike an injury resulting from a known, neutral threat, an unexplained fall by definition does not establish causation, and therefore cannot satisfy the claimant’s obligation to demonstrate that an injury arose out of employment.”

Assessment

It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties — even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.

—By Michael H. LeRoy, University of Illinois at Urbana-Champaign

How Money Buys Influence at Illinois Supreme Court


If you’re unhappy with Democratic and Republican lawmakers, the Illinois Supreme Court is just as bad.

Republican Supreme Court Justice: Current Illinois Justice Lloyd Karmier raised $4.8 million for his seat on the Court. For confirmation, read Roy Schotland, Transparency International, ed., "Global Corruption Report 2007: Corruption in Judicial Systems", Judicial Elections in the United States (Cambridge University Press), pp. 27–28. State Farm Insurance made a direct contribution of $350,000; affiliates of State Farm Insurance also paid for Karmeier's campaign. Around that time policyholders from State Farm Insurance had won $1 billion against State Farm in Avery v. State Farm, and won at the intermediate appellate court. The appeal against the damages and award was pending before the Supreme Court.

When Karmeier was elected, the St. Louis Post-Dispatch newspaper published an editorial, "Big business won a nice return on a $4.3 million investment ... It now has a friendly justice."
The appeal was decided in favor of State Farm Insurance by a majority of 4-2, with Karmeier in the majority.

This ruling versed $600 million of punitive damages as well as the award of $457 million against State Farm. The real losers were policyholders.

Democratic Supreme Court Justice: The Illinois Campaign for Political Reform tracks contributions to judges. Justice Thomas Kilbride, a Democrat, raised more than $2 million from the state Democratic Party and unions. Business groups gave $600,000 to Kilbride’s opponent. http://www.npr.org/templates/story/story.php?storyId=130810189


Wednesday, May 25, 2016

“I Don’t Like Welfare I Like to Work” … The Case of an Ex-Con Who Could Not Stay Employed


In my new online employment law course, I feature the incredibly sad and telling case of an immigrant from Haiti (a lawful asylee) who, as a teenager, rode in the backseat of a car in a staged accident to bilk insurers by claiming a phony injury (a co-conspirator intentionally hit the back of her car at low speed). Convicted of a federal felony, she was sentenced to 10 months of home detention and 5 years of probation. She was a single mother of four young children by the time her sentence was imposed, years after the fake accident.

During her lengthy probation, she applied to jobs as a home health care provider. When agencies did background checks, they found her conviction and fired her.

The woman pleaded with her probation officer for mercy from the judge who imposed the sentence on her: “[C]an’t you please talk to the judge about my situation, criminal record. If the judge can’t release my problem one day I’m going to find work somewhere. I’m good hardworking woman, I’m single parent, have 4 childrens. I don’t like welfare I like to work. I’m independence woman please explain to judge for me.”


In Doe v. U.S., 2015 WL 2452613 (E.D.N.Y. 2015), Judge John Gleeson expunged her conviction. He explained: 

Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully. The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the ‘only’ ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called “ban the box” practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent. There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities [emphasis added].”

Radio Silence from WDWS

Jim Turpin at WDWS has not returned my Monday phone call that replied to his radio show call-out that I appear with Justice Steigmann to discuss my published letter [http://www.news-gazette.com/opinion/letters-editor/2016-05-17/judges-should-be-above-fray.html] that criticizes judges who engage in partisan politics. I contended that judges “are entitled to their opinions — but in doing so they undermine their constitutional role as judges who are supposed to be above the political fray.” In this podcast @wdws1400 (http://www.news-gazette.com/audio/2016-05-17/05-17-16-justice-robert-steigmann-responds-professor-michael-leroy.html), Justice Steigmann said, “Let’s invite him [me] to come on this show and discuss this at length.” Jim added, “That’s a good idea, I can try to set that up.” I did not hear from Jim the rest of the week, so on Monday I called him and left a message on his phone stating that I’d be happy to come on his show for this purpose. Between that call on Monday morning and Wednesday afternoon— as I write this post— it’s been radio silence from WDWS. Jim, how about Friday, May 27?  Readers of ProfLERoy will be updated on future developments.

Monday, May 23, 2016

Trump "Nominee" Stands Up for Fired Teacher

In writing a national column for Law360, titled “Rating Trump’s Nominees in Employment and Labor Law Cases,” I found the following, which I feature for readers of this blog:

Judge William Riley (8th Circuit Court of Appeals): In Gibson v. Caruthersville School Dist. No. 8, 336 F.3d 768 (8th Cir. 2003), this conservative judge wrote an impassioned dissent in support of a probationary teacher who was denied reappointment after a student alleged that this instructor grabbed him by the throat. The teacher exercised his right to a name clearing hearing in a public proceeding. However, after adjournment in the hearing, the school district refused to allow him to continue with his public defense. The lower court denied the teacher’s petition for a hearing on his non-renewal; and the appeals court affirmed.

Judge Riley put a heavy emphasis on procedural due process for public employees in this closely reasoned dissent: “The majority rejects what can be reasonably inferred from the facts: the District had no intention of giving Gibson the opportunity to tell his side of the story, and used available procedural means to effectuate its goal. Following the opening hearing round, the District tried to obtain a settlement and a release from Gibson. When that attempt failed, the District closed a critical portion of the public hearing. When Gibson resisted and filed a petition for writ of prohibition to keep the hearing open, the school board voted against renewing Gibson’s teaching contract. . . . Once the school year ended, the District advised Gibson’s attorney that the termination issue was moot and completion of the hearing was unnecessary.”

Framing this in constitutional terms, Judge Riley reasoned: “The Supreme Court has declared the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed [and] ... the denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”

More generally, I wrote: “The question I pose is: How do Trump’s nominees rate in employment and labor law cases? But first, some caveats. I will not vote for Trump. Second, my research sample is preliminary and focuses on five of the eleven nominees. With these disclaimers, I find that these judges are thoughtful, pragmatic, and somewhat libertarian in the following employment and labor cases. In these opinions, they appear more temperate than Justice Scalia….

Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.”

Friday, May 20, 2016

Eh, What’s Up, Doc? How Bugs Bunny Influenced Opera


Kudos to the Wall Street Journal for reporting today on a generation of opera performers and patrons whose musical interests were profoundly influenced while planted before a TV set to watch Bugs Bunny cartoons.

Take Jamie Barton, now 34. Her parents didn’t show her these cartons—but her smart grandparents did! The result? Ms. Barton fell in love with the music of Gioachino Rossini through “Rabbit of Seville.” In this 1949 cartoon, Bugs “shaves Elmer with a lawn mower, massages his scalp with his hind paws and polishes his pate with a shoeshine rag.” Today, Ms. Barton plays Waltraute (one of the nine Valkyries) in a current Washington National Opera production— the Kennedy Center’s $10 million production that took a decade to make.

In another Warner Bros. classic, “What’s Opera, Doc?,” Bugs Bunny is at the center of a mélange of Wagner music from the Ring, “Tannhäuser” and “The Flying Dutchman.” Elmer is the hunter; Bugs is his prey; and to this music they animate a drama of “wooer-and-wooed.”

Lo and behold, a 5 year old boy (now 37) in Des Moines, Iowa was entranced. Michael Heaston shares his account with the Journal: ‘“Growing up in Iowa there’s not a lot of opera—I know that may come as a shock,’ recalls Mr. Heaston, 37, a former pianist for the Dallas Opera and now adviser to the artistic director of the Washington National Opera. ‘At a very base level, that’s what I got from Looney Tunes at a very early age: I learned how to tell stories through music.’

Sunday, May 15, 2016

Does an Employer Have a Duty to Keep a Bathroom Clean? Court Flushes Complaint

The answer is “no.” Here are the disgusting details.

Ricky Lynn Edwards arrived at work on a CSX train with an upset stomach. He went to the bathroom, which only added to his problems. The bathroom’s urine, feces, dirt and cleaning chemicals on his train's lead car caused him to run to a catwalk outside the cabin to vomit. Edwards fell over a handrail, breaking two vertebrae and a rib and ending his 31-year career with CSX.

Magistrate Judge Dennis Inman in the Eastern District of Tennessee last year granted the railroad's motion for summary judgment, saying CSX was required only to inspect employee bathrooms once daily. A federal appeals court affirmed the ruling on Friday, stating: “While (the Locomotive Inspection Act) requires CSX to have such toilets and to clean them once a day, they do not require railroad companies to ensure that the toilets are clean at any given moment between inspections.”

But interesting aside: Edwards likely has a strong worker's compensation claim under the personal comfort doctrine. The doctrine includes a genre of cases where women, in a unisex bathroom, have landed too hard on a toilet rim because the men ahead of them forgot to lower the lid. These cases typically present expensive claims for broken tailbones and lower back injuries. So, employers do have legal duties related to bathrooms.

Friday, May 13, 2016

Should Sitting Judges Be on Talk Radio? The “Hannity” Effect



Recently, Judge Michael McCuskey joined Jim Turpin’s “Penny for Your Thoughts” to rip UIUC administrators for their “gutless” response to the disruption of Gov. Rauner as a campus speaker.

Years ago, “Penny” invited Judge Steigmann as a guest to take questions on legal matters coming before state and federal courts. Over time, however, Judge Steigmann has deviated from this legal role to offer strong opinions on political matters.

Both men are entitled to their opinions—but they undermine their constitutional role as judges who are supposed to be above the political fray. This is all the more ironic given WDWS’s conservative bent. In Federalist Paper No. 78, “Publius” (Alexander Hamilton) stated a forceful theory for immunizing judges from the crass and heated passions of daily politics. Much more recently, in Report #14-UA, the Heritage Foundation— a widely respected scholarly society of conservative thought and original construction of the Constitution— stated: “The proper role of a judge in a constitutional republic is a modest one. Ours is a government of laws and not men. This basic truth requires that disputes be adjudicated based on what the law actually says, rather than the whims of judges [emphasis added].”

The emergence of local judges as opinion shapers is more than an abstract concern. In my 2010 Iowa Law Review study, “Do Partisan Elections of Judges Produce Unequal Justice?,” I found evidence that “federal court rulings may have facilitated the growth of money in [state] judicial elections by making it easier for contributors to identify the views of candidates for judicial office.” And now, WDWS has cheapened the administration of our area courts by giving a highly visible platform for our sitting judges to express their heated political passions.

Thank You to the 12 Nations in My UIUC Classes, 2015-2016

As the academic year closes, I acknowledge and appreciate the following nations (12!) for sharing their best and brightest students with me. Arranged in alphabetical order: China, India, Iran, Israel, Mali, Mexico, Namibia, Pakistan, Singapore, South Korea, Turkey, and the United States.

Wednesday, May 11, 2016

Your Professor Is Actually a Robot … and Untenured


Do we need professors? After today, the answer is in some doubt. A Georgia Tech professor created an artificial intelligence bot to serve as an online teaching assistant. The bot was fed forum posts from the class's previous semesters. Model answers were then fed into the bot. It (she) was introduced to the class as Jill Watson, an online TA. “Jill” answered 97% of student questions correctly—and they nominated her for a teaching award.

Interesting to note—and quite apart from this development— the University of Wisconsin system president, Ray Cross, has proposed to end tenure, stating that tenure shouldn't "be a job for life.” See here for more. 

I have a vested interested in not being replaced by a bot; but given the rising anti-tenure sentiment and budget crises, it’s foolish to think that my job will last indefinitely.

But I have these nagging thoughts. Why were students so pleased to interact remotely with an artificial TA? Do they value human interaction less than students a generation ago? As for President Cross, without tenure, what institutions will make huge human capital investments to do basic research that allows companies to convert this knowledge for treating and curing cancer, feeding our planet, discovering the limits of the universe? 

If Your Kid Is Not Asking for Help But Needs It … Step In and Help

ProfLERoy goes off-topic today to highlight a provocative and unsettling story from a local high school student. Her effort is brave, and she calls attention to a plight that is likely to confront many students—especially those who are under pressure to succeed. Highlights (quoting from the student's article):

From the beginning Uni students are put against each other. This environment of intense competition feeds into many students’ desires to improve themselves, but it can cause anxiety and stress for others. While it could be debated that the kind of student who crumbles under this kind of pressure shouldn’t be at Uni, that would only limit the diversity of the student body even more.

Because we are a community of academically gifted people, many feel the need to show that they are superior by bragging about their grades. Some outright brag about getting good grades, but others choose to humble brag. A common Uni humble brag is something along the lines of “I only studied for 20 minutes and I got a 98.” Another example would be “Ughhh, I failed this! I only got a 96.”

Because Uni has developed the culture of the humble brag and assumes everyone is doing well in school, this often silences the people that need the most help. I know from personal experience that asking for help, especially as a subbie or freshman, felt like the hardest and most humiliating thing I’d have to do. I was used to knowing the answers and helping other people, not the other way around. I felt like asking for help was showing weakness, and I was also a socially awkward 13 year-old who was trying to make friends. I thought that people wouldn’t want to be friends with me if I wasn’t smart.

Asking for help in class was hard, because I thought if I didn’t understand a topic I was dumb. Asking a friend was fine if it was one problem, but once they figured out I didn’t understand the whole topic, I felt judged. It was hard to improve my grades because I was so focused on not looking stupid that I neglected learning in the process.

It is true that people hold themselves to different standards, but it’s one thing to say you failed when you got an A or B, and another to say you failed when you got a D or F. This mindset that you need to constantly be one-upping someone else is detrimental to both parties.

I have been silenced by my fear of failure many times. Freshman year, I did not understand geometry. Geometry and I did not get along. We never really understood each other, and because of this I suffered. I am lucky enough to have a dad who, for some inexplicable reason, says that geometry is “fun.” I couldn’t have disagreed more. Every night we would spend at least an hour at the dining room table trying to learn geometry. Most nights would end in some kind of fight or tears of frustration.
Because my dad saw me struggling with geometry, I didn’t have to ask for help, which was a big deal to me. I didn’t tell many people that I was spending at least an hour a night trying to understand what we had learned in class, because I was humiliated. As it was, I still got a C+ in that class. If I had been left to my own devices, my grade would have suffered more, as would my pride.

....

Tuesday, May 10, 2016

Declining Crafts: My Wife Teaches Cursive; I Teach Spellchecker


I take pride in my students’ hard work, perseverance, and excellence. Like me, they make mistakes. In my grading rubric, I specifically state: “Papers are graded using these criteria: (a) comprehension, (b) accuracy, (c) support for conclusions in footnotes, (d) length (including word count), (e) grammar, and (f) spelling.” I have come to the conclusion that spellcheckers, which were incorporated in 1980s programs such as WordStar and WordPerfect, might be alien concepts to students who were born in the 1990s. So, we will work to improve on this going forward.

It’s interesting how technology that was meant to be quick and easy is, over time, ignored. That would include cursive, a dying craft taught lovingly by my wife, Janet (Third Grade Teacher).

ProfLERoy Doesn’t “Like” Uber. Or Facebook.

Occasional readers of ProfLERoy know that this blog is highly critical of Uber’s business model because it cheats on labor costs and shirks employment taxes. The other day, ProfLERoy posted a concern about Facebook’s omnipresent tracking via its tagging technology. Add to this concern Facebook’s apparent censorship of trending news and commentary from political and social conservatives. See Gizmodo’s critique of how Facebook curates news, http://gizmodo.com/former-facebook-workers-we-routinely-suppressed-conser-1775461006 .  

Monday, May 9, 2016

“Wellness” Programs: Do They Incentivize or Penalize?

That’s the implication of a California lawsuit involving CVS Pharmacy. Roberta Watterson’s lawsuit alleges that she voluntarily enrolled in CVS's group medical insurance plan in 2009. In 2012, the plan initiated a wellness program called WellRewards that required participants to complete an annual health screening and online wellness questionnaire. If Watterson elected not to participate in the program, she would be required to pay an additional medical insurance premium of $50 per month.

Watterson’s complaint specifically alleges: 

The questionnaire is lengthy and highly invasive. The 2013 and 2014 questionnaires consisted of hundreds of questions. The questionnaire includes invasive personal health questions, including questions about Plaintiff's mental health, sexual activities (such as whether she uses condoms with multiple sexual partners and whether she has been tested for chlamydia recently), and daily food intake. The survey also asks questions whose answers could potentially be self-incriminating, such as how often Plaintiff drives after drinking alcohol and how many miles per hour over or under the speed limit she drives. The survey also asks questions which have nothing to do with an employee's health, such as questions regarding salary and job type and how Plaintiff rates her job performance relative to other employees. (Watterson Decl., ¶¶ 17, 19; Setareh Decl., Exh. C.).

Viewing this as a job-related requirement that is compensable time, Watterson sued for unpaid wages for the time she spent completing the questionnarire. Her health screening took a total of about 4 hours, including a lengthy wait to be seen in which she was required to remain within earshot of the MinuteClinic so that she could hear her name called when it was her turn to be seen, plus about 12 miles of round-trip travel.

Her legal theory was that failure to comply with the survey would result in a $600 surcharge—and therefore, her employer was controlling her time by threatening to surcharge her insurance against her wages. Her lawsuit was dismissed last year. Last week, she filed an appeal to the Ninth Circuit, a court that often rules for employees.


Saturday, May 7, 2016

Happy Mothers Day ... For Now: How The Young and Old Are at Odds


The Teamsters union and large trucking companies set up a defined benefit pension plan decades ago. Called the Central States plan, this retirement fund has suffered massive losses due to market conditions, generous benefit promises, and the de-unionization of the trucking industry.

Facing the prospect of depletion in ten years, the plan’s administrators petitioned the U.S. Department of Treasury for permission to slash benefits paid to current retirees (by an average of 23%). Why? To preserve the fund’s liquidity beyond 10 years.

To make the change, the plan would need the approval of the Department of Treasury. Yesterday, that agency rejected the proposal. The reason: proposed cuts would not be shared equitably among retirees; and the plan’s funding assumptions were too optimistic. This implies that the remaining employers would have to contribute more—but good luck making that happen in this distressed industry.

The upshot: the funding problem has been kicked down the road, but not avoided or repaired.

For a public sector version of this, start with Illinois and Pennsylvania—two states with massively underfunded plans that require reform or huge tax increases (or a blend). And then see Puerto Rico, which missed its first bond payments this week. 

The ultimate implication-- unless markets dramatically improve-- is that young people will pay massively for retirees, or retirees will lose massively on promised benefits. Happy Mother's Day-- for now.

Did You Know That Facebook Collects Your Biometric Data? Lawsuit Update

You might want to know about a lawsuit in Illinois, filed by Facebook users against the social network company. Suing under the Illinois Biometric Information Privacy Act (BIPA), they allege that the company unlawfully collects and stores users’ biometric data derived from their faces in photographs. Yesterday, a court kept the lawsuit alive by rejecting Facebook’s efforts to dismiss the lawsuit.

Just wondering… how does Facebook use this data? Likely, they sell or commercialize it. Perhaps they track users to add a razor-point method of targeting ads to our cell phones. It feels like Big Brother in the guise of free enterprise. ProfLERoy will track and report this litigation. Now, if I close my eyes in your photos, you’ll know why!

Thursday, May 5, 2016

Galloping Ghost as New Illini Mascot? (Not My Idea But I Love It)


For people who are willing to think about a mascot for the University of Illinois, what about the Galloping Ghost? The term refers to the Illini’s legendary football player, Red Grange, who “vaulted to national prominence as a result of his performance in the October 18, 1924 game against Michigan in the grand opening game of the new Memorial Stadium, built as a memorial to University of Illinois students and alumni who had served in World War I. Grange returned the opening kickoff for a 95-yard touchdown and scored three more touchdowns on runs of 67, 56, and 44 yards in the first 12 minutes. He scored six touchdowns in all. Illinois won the game by a lopsided score of 39 to 14." Credit: Wikipedia.

The game inspired Grantland Rice to write this poetic description:
A streak of fire, a breath of flame
Eluding all who reach and clutch;
A gray ghost thrown into the game
That rival hands may never touch;
A rubber bounding, blasting soul
Whose destination is the goal — Red Grange of Illinois!

Can you imagine a gray riderless horse galloping through the Marching Illini band at halftime? Personally, the image gives me goosebumps.

Sunday, May 1, 2016

Why Ripping on Chinese Students in the U.S. Is So Wrong

The growing presence of Chinese students on American campuses is causing a predictable backlash, chiefly the complaint that they are squeezing out qualified state residents. This is wrong: Their tuition is keeping public universities afloat, relieving taxpayers, and creating growth that actually accommodates more places for Americans at these universities.

But this weekend's Wall Street Journal sheds new light on the brain drain from China to the U.S. The increasingly repressive regime of President Xi Jingping is a huge turn-off for the best and brightest of China’s youth. Quoting this news story:

For students, campus life is heavily regimented, with strict curfews. Every publicly funded school is required to have a Communist Party committee, which is charged with helping direct the ideological, political and moral education of students.

Such pressures have intensified under President Xi Jinping, who has stressed the need to deepen education in so-called “core socialist values.” China’s education minister last year instructed colleges to resist Western values and more closely scrutinize Western textbooks. China’s schools, he recently told The Wall Street Journal, aim “to make our students qualified to inherit and build up socialism with Chinese characteristics,” which is how the Communist Party describes its official ideology.

Students and teachers are denied access to websites such as Facebook and Google Scholar, a mainstay for many academics.

If you support free speech and thought, worry about the rising militarism and aggression of China, and want to strengthen the U.S., make Chinese students feel welcome. I have had the privilege of teaching students from China for 20 years. They are us, and we are them