Most Important Wage Cases in 2017

I pass along Reuter Legal’s list of top five wage cases of 2017 (with my brief comments).

Number 1: Overtime Rule Struck Down:

A federal judge struck down an Obama administration rule that would have made more than 4 million workers eligible for mandatory overtime pay. (The biggest losers in this group are employees who have quasi-management responsibilities— shift supervisors, store managers, etc.— who often work more than 40 hours a week. Now they will lose overtime pay, and be scheduled over 40 hours per week with no extra pay.)

Number 2: New Legal Test for “Contract Employees.” Lots of firms lease employees, or take on work performed by the main employer as contractors. Example: In this case, a drywall contractor “subbed” the job to a different firm that performed drywall installation. In these situations, the sub-contractor sometimes fails to pay overtime or minimum wages. A federal court (Fourth Circuit) set forth a new test to determine if the employees of the contractor company is, in effect, an employee of the primary organization. The panel of judges said a fundamental question is whether the companies jointly decide the terms and conditions of employment. That shared control can be direct or indirect, formal or informal, the panel said. (This is a win for employees, but will be challenged before the Supreme Court. Many other industries are affected: cable TV and internet installers, home nurses, delivery drivers and couriers, and a growing number of professional work groups, e.g., “contract” lawyers and doctors and other health professionals.)

Number 3: Salary History Case (Involving Gender Discrimination): Employers sometimes ask applicants or new hires for their salary history. (This is one reason that pay for women consistently lags about 20% behind pay for men in identical jobs.) Initially, the 9^th Circuit Court of Appeals found no bias when employers ask for salary history. But later in 2017, it said it will reconsider this ruling. (Federal courts have split on this issue. Perhaps in 2018, the Supreme Court will decide the matter.)

Number 4: Franchise Employees Get Paid: A federal court in California approved a $3.75 million deal between McDonald’s and about 800 employees of a California franchisee who said the company was jointly liable for wage-and-hour violations. (The key here is that company is paying for violations committed by franchise owners. These are not company-owned restaurants. The ruling was based on a potent state wage-and-hour law, not a federal law, so this outcome is beyond the reach of the Trump administration.)

Number 5: Uber Drivers Allowed to Sue as a Group (Class Certification): Uber wanted to force drivers into arbitration, where their wage claims would be handled individually. A federal court rejected Uber’s case for arbitration. (Now the matter will proceed in open court, where a class of Uber drivers will get a better chance of winning or negotiating a settlement.)

Should Nikki Haley, Melania Trump and Baron Trump Be Deported?

In 2018, we will hear new political discussions about “reforming” our legal immigration system. This will dredge up the worst ideas America has ever produced for immigration.  See the picture above as an example.

By some (not all) definitions of the term, Nikki Haley is an “anchor baby”— the American born child of immigrants. Usually, the term is reserved for children of unlawful aliens; but for some anti-immigrant groups, they mean all nonwhite, non-Christian children born in the U.S. (We’ll get back to this idea in a just a moment for Melania and Baron.)  

Nimrata Randhawa (Nikki Haley) was born in South Carolina in 1972 to an Indian American Sikh father and mother. Her father came to the U.S. on a work visa as a professor. Both parents earned advanced degrees in India. Her mother was allowed to immigrate with him by using a “family preference”— the legal term that some people insultingly call “chain migration.” Nikki is the next link in that chain—and a tremendous credit to American assimilation. Now, ironically, she’s all-good with turning America’s back on global engagement and immigration.

Melania Melanija was born in Slovenia. By former U.S. immigration laws, immigrants from this part of Europe were considered dark-skinned, non-Nordic people and were almost entirely barred from immigrating. She came to the U.S. on a specialized work visa for fashion models (called an O visa). She became an American citizen by marriage to Donald Trump. This form of citizenship will come under attack in 2018 by anti-immigration forces.

By some definitions, Baron Trump is an anchor baby—the son of a darker-skinned immigrant from an undesirable part of the world.

There are millions of people like Nikki, Melania, and Baron. I’m one of them as the son of a Hungarian Jew. Together, we help to make America great.

Future Harm: If Restricting Legal Immigration Becomes Law in 2018

We will hear from FAIR in 2018 (Federation for American Immigration Reform). Recently, Robert Law, its director, wrote: “Decades of flooding the labor force with low-skilled workers has caused blue collar wages to flat-line or decrease. In many cases, most notably construction, new low-skilled immigrants have replaced blue collar Americans, especially native born minority males.”

The GOP has a bill to dramatically curtail legal immigration.

In a snapshot, here’s how this legislation would likely harm our communities.

The major sports teams in St. Louis and Chicago have lots of players who are here on specialty sports visas—think of Latin American players on the Cardinals, Cubs, and Sox; European and Canadian players on the Blues and Blackhawks; Mirotic on the Bulls.

The Danville VA hospital likely has physicians from Pakistan, India and other nations.

Carle and Presence may have similar physicians who are more specialized and are here on higher-grade visas.

If you’re reading this and live in Chicago or other major city, the same is essentially true.

Next month, the Russian Ballet and symphony are performing at Krannert—all need a work visa to do this.

Research Park at the University has many employees on specialty visas for computer and engineering jobs.

Caterpillar has many engineers from India (I teach some of them)—hired, I assume, because Caterpillar wants the best and these folks fit the bill.

Some of our agricultural depends on legal immigration—Illinois, as the leading pumpkin growing state, brings in workers on specialty visas (or harvests with undocumented workers). Southern Illinois winemakers, apple orchards, and seed companies make occasional but important use of these visas.

Hotels are heavily dependent on a different type of visa for low skilled labor.

And the University has numerous people on these visas, and some bring in large grants that provide jobs for local Americans.

The Cotton-Perdue bill— heavily touted by President Trump— assumes that Americans are being shut out of the market. The proposed law would cut these visas and replace them with “merit” criteria—young age, English fluency, and educational attainment, all good things to value in a labor market.

Okay, the Cubs can put Kyle Schwarber in at catcher and send Willson Contreras home to Venuzuela; and the St. Louis Blues can find an American player for Russian-born Vladimir Tarasenko.

Your grandma and grandpa who live in Paris, Illinois would probably lose their 50 year-old foreign-born doctor who has a practice right there in town. 

American physicians want to work in large cities and suburbs—they no more want to work in rural America than other Americans want to pick tomatoes.

Caterpillar might simply offshore their engineering department, taking it to Mumbai, leaving another hole in the Peoria economy. They're not going to hire more American engineers-- they've already made that decision based on their hiring criteria.

The list goes on.

The last time the U.S. did this was 1924 with a law called the National Origins Act. It was implemented by a nativist president, Herbert Hoover, in 1928. Within four years, 32 percent of Americans were unemployed in the Great Depression.

When CDC Says Fetus, They Mean Baby, Not Abortion

A Facebook friend chided me, stating “HHS was giving CDC political advice, not taking a political stand.” That is nonsense—every branch of the administration is taking a forceful political stand that 60% of the nation disapproves, and 40% approves.

But the exchange prompted me to go online to the CDC and just type in fetus. Here are the main topics:

Before Pregnancy: Tips to Get Ready for Pregnancy

During Pregnancy: Learn How to Give Your Baby a Healthy Start in Life

After the Baby Arrives: How to Keep You and Your Baby Healthy and Safe

Buried in these passages are references to fetal health— I mean, pre-birth baby health.

So, whether you call this censorship or political advice, it’s sick. 

CDC is not an abortion cheerleader group. It wants women and men to plan for getting healthy to bring healthy babies into the world. 

It wants to reduce sickness and disease and addiction in fetuses— I mean pre-born babies. 

It wants a lower rate of neo-natal deliveries, which are very expensive (thankfully, neo-natal is basically like a term for a fetus—oops, wrong word— that develops in an artificial womb).

But I am thankful for my friend's exchange because now I understand that the Trump administration is not only concerned that CDC is a secret abortion mill run by scientists. 

They also are fierce opponents of cigarettes, as the this CDC photo shows. 

CDC wants people to have healthy babies, raise them free of addictions, get vaccinations, utilize the health care system, especially for preventive care, and stay away from cigarettes and guns, which pose a major public health crisis. The Trump administration loathes some of these basic goals.

Coal in Christmas Stockings for Mining Families

You are looking at a coal miner’s lungs, post-mortem. Last week, the Trump administration issued new regulatory agendas that included a re-examination of an Obama-era coal dust rule from the Mine Safety and Health Administration (MSHA). Mr. Trump said, “Let’s cut the red tape, let’s set free our dreams,” in announcing a package of rule reforms.

In 1969, the U.S. passed landmark mine safety legislation. Congress specifically aimed to cut black lung deaths as much as possible. From 1968 through 2014, more than 76,000 coal miners nationwide died from the disease.

Today, five Democratic senators (Manchin, WV; Brown, OH.; Kaine, VA.; Casey, PA.; and Warner, VA) wrote to the Trump administration seeking to maintain the tougher air-quality rule. See here https://www.documentcloud.org/documents/4335807-Senate-Letter-Trump-Black-Lung-Rule.html.

Republican senators from these states did not sign the letter (Capito, WV; Portman, OH; Toomey, PA.).

Coal mining will never be a safe occupation. But the Obama rules for air quality made the job a little safer by cutting allowable dust by 25% over the previous rule.

Daily Mercury: Former coal miner Percy Verrall, with black lung disease after decades of working in coal mines.

No one should be dying for a job.

Picture This: Trump Labor Board Approves Rule for Firing Employees Who Use a Camera

In 2012, a union for Boeing workers filed a complaint alleging that the company violated employee rights by photographing union marches. The union also challenged the company’s blanket rule barring workers from using personal cameras at work without a special permit.

On December 15^th, the National Labor Relations Board approved the company rule on a 3-2 vote (with Pres. Trump’s new appointees tipping the balance).

Earlier, a judge ruled against Boeing. Applying a long-standing precedent, Judge Etchingham said workers could interpret being videotaped and not being allowed to take pictures themselves as interfering with their right to organize and improve working conditions.

The ruling puts workers at an informational disadvantage in our age of social media. With this change in the law, employers can upload photos and video while negatively commenting on union marches and protests—but if a worker wants to take a photo of an OSHA violation at work, she can be fired for violating the no camera rule.

Los Angeles, 1931-1932: A Sanctuary City

A sanctuary city is generally defined as a municipality that refuses to use its police and criminal justice system to aid in deportation of aliens.

This happened in 1931-1932, when President Herbert Hoover’s Secretary of Labor—a staunch opponent of all forms of immigration, legal and illegal— launched a campaign in Los Angeles to deport Mexicans.

Mexican government sources suggest that over 300,000 were repatriated between 1930 and 1933.

Before the Depression,  farmers, labor unions, eugenicists, and racists pushed for restrictions on Mexican immigration.

The American Federation of Labor (AFL) and the National Club of America for Americans thought that deporting Mexicans would free up jobs for U.S. citizens.

They were wrong. After Mexicans were rounded up and deported, unemployment shot up to 32 percent. The problem was a vicious cycle of tariff disputes with trading partners, not immigration.

The federal government, in coordination with local governments, took steps to remove Mexicans. 

In his book Unwanted Mexican Americans in the Great Depression, Abraham Hoffman describes a scene where a federal official who headed the deportation effort leaned on LA police to round-up Mexican men. 

The Chief of Police and LA County Sheriff refused. Their reasoning? They said that the federal plan identified deportees on the basis of skin color only. Local law enforcement feared lawsuits and expenses for false arrests.

The bottom line: Police— then and now— make arrests based on probable cause. Being dark skinned and speaking Spanish are not probable cause for an arrest (a requirement in the Fourth Amendment). That was true in 1931 … and it remains true in 2017.

Can Employers Restrict Job Ads on Facebook to Persons Under Age 40?

The Age Discrimination in Employment Act (ADEA) prohibits adverse treatment of employees and applicants who are 40 years of age and older.

A newly filed lawsuit alleges that T-Mobile US Inc., Amazon.com Inc., and Cox Communications Inc. imposed age limits on who could see recruitment ads, limiting ads to people 38 years old and younger.

Facebook has received other complaints about “micro-targeting” its ads.

This process allows ad purchasers to target based on age, interests, race—and as reported by Westlaw (a legal database), Facebook also allows ads tailored to people who dislike other people based on race or religion (e.g., advertisers who are targeting viewers who dislike Muslims).

That brings me to an inference as to why the defendants here chose the age limit of 38 years and younger. Perhaps they think that they can avoid liability because their ads also took out people who were 39 years of age.

They might get away with that defense. But as we read in our employment law class (Smith v. City of Jackson), the ADEA also allows for disparate impact claims. Choosing age 38 categorically excludes every person ages 40 and above, even if a court finds no specific intent to discriminate against people over age 40.

Legalities aside, this is more evidence that Silicon Valley isn’t the progressive element in society that it projects. If there are buyers with discriminatory intent for their ads, Facebook is happy to do business with them. 

Tax Bill Means Less Employment, More Contract Work

More work is being done outside the employment relationship. Uber is a good illustration: Drivers are independent contractors, not employees.

Between 2005 and 2010—last figures I have— independent contractors rose from 30.6% of the workforce to 40.4% in 2010.

Compared to similarly-situated full-time workers, contract workers earned 27.5% less per week.

The new tax bill accelerates that trend. Here’s how.

Today, a worker pays the same percentage on income, whether it is taxed as wages or salary earned through employment or earned by independent contracting.

The new bill lowers the tax rate for contract workers with a maximum rate of 21%. For employees, the highest marginal rate will remain around 39%.

Let’s think about stable jobs that pay well: HR professionals, dentists, office managers, and plumbers. Some portion of their income is taxed above the 21% marginal rate—that’s why I am using these jobs to illustrate the change.

The tax code will incentivize them to prefer a short-term “gig” relationship—and even if they don’t want to migrate to contractor status, their employer might try to convert their job to a gig (short-term and/or repeating term job).

That’s because the GOP has related legislation in the wings, called the New Gig Act. It will provide employers with tax incentives to shift employment-based jobs to “gig” jobs.

Why would any employer want to make that change? They would shift all the Social Security and Medicare tax burden to the individual (that’s a huge break); nullify the ACA employer health care mandate, avoid worker’s compensation, and other employment laws.

In other words, the tax bill that will formally pass today marks a milestone: We will have fewer employment-based jobs, and more contract-based work.

The GOP will sell this as a modern-day update from antiquated labor and employment laws, i.e., in the old economy. But for workers who shift from jobs to gigs, it will be a lifetime of work-based insecurity and fewer safety nets. They won’t work paycheck to paycheck—but gig to gig.

No-Vax Vegans and McVegan Burgers

Last Thursday, a federal appeals court issued an important ruling in a case where a hospital employee refused to be vaccinated for the flu because of his vegan beliefs. Vegans are people who strictly refuse to consume or use animal-based products. This includes vaccines that require the use of eggs in the production process.

Paul Fallon had worked at Mercy Catholic Medical Center for several years as a mental health professional. For the first few years of his employment, he was granted an exemption from the vaccination requirement.

However, in 2014, the hospital narrowed its exemption policy. Instead of having a creed or belief, a person seeking an exemption would need to provide a letter from a clergyperson to support his or her request.

Fallon did not belong to any religious organization. Eventually, he was fired for not being vaccinated.

The Third Circuit Court of Appeals upheld a lower court ruling that dismissed his religious discrimination lawsuit under Title VII.

Circuit Judge Jane Richards Roth said that Fallon's beliefs were not of a religious nature and did not seek to address “fundamental and ultimate questions having to do with deep and imponderable matters.” Instead, Fallon’s beliefs reflected a “general moral commandment.”

Also, the opinion said: “Generally, he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid the vaccine.”

Hospitals require vaccines to limit the spread of contagious disease by their staff.

***

In other vegan news—entirely unrelated to employment!— McDonald’s is rolling out the McVegan burger in Norway. Many food companies are offering vegan alternatives. Paul Grimwood, CEO of Nestle USA, said in an unrelated context that “as many as 50% of consumers now are seeking more plant-based foods in their diet and 40% are open to reducing their traditional meat consumption.” This means cutting out all meat, milk, eggs and animal products.

My personal view? The appeals court ruled and reasoned properly—and so has McDonald’s. And FWIW, I get vaccinated but also want to try a McVegan burger. Feel free to share your views and tastes on FB or at mhl@illinois.edu. 

Sutherland Springs Massacre Update: Lawsuit Filed by Victims’ Surviving Family

Gun control laws don’t work. The NRA is blocking further restrictions.

Enter tort law. This is a miscellaneous category of lawsuits under civil law. That means that defendants do not face criminal sanctions, but might be ordered to pay damages.

You know about these types of tort actions already. Example: Negligence. Case in point: A surgeon negligently fails to remove sponges in a patient causing pain and suffering, and damages.

Joann Ward and her daughters Emily and Brooke were shot and killed by Devin Kelley.

Their survivors are suing Academy Sports & Outdoors, the large sports equipment store in San Antonio that sold Kelly the Ruger AR-556 used to kill 26 people at Sutherland Springs First Baptist Church on Nov. 5.

The lawsuit filed last week in a state district court in San Antonio seeks at least $25 million, accusing the store being negligent in allowing the sale of the Ruger AR-556 used to kill 26 people at Sutherland Springs First Baptist Church on Nov. 5.

The lawsuit claims that when Kelley purchased the weapon in a San Antonio store, he entered an address in Colorado Springs on the federal Firearms Transaction Record form that needs to be completed before a firearm can be sold.

He obtained the weapon in Texas but it should have been sent to his Colorado residence, where he had been stationed with the U.S. Air Force, the lawsuit said.

Houston Attorney Jason Webster said, “The Ruger should have never been placed in Kelley’s hands in Texas.”

The legal significance? Tort law is sometimes a valuable “safety valve” in a legal system where lawmakers refuse to pass statutes.

Broadly speaking, if this lawsuit is successful it may discourage retailers from selling assault style (and other) weapons.

This process is slow, hit-and-miss, and patchwork in quality.

But it can achieve limited successes.

Example? Tort litigation in the 1990s led to a massive settlement of cigarette smoking claims. The settlement didn’t end cigarettes, but then again, few people are suggesting a ban on guns— just limits on assault weapons and accessories and further controls on people who are unfit to have guns.

Can Trump Legally Censor CDC Words?

It’s fitting that the answer to this question traces to George Carlin, the iconoclastic comedian who coined seven dirty words (shit, m****f*****, tits, c***s*****, and others). After a radio station played his famous monologue, inspiring a 12 year old boy to share with his father, the dad filed a complaint against the broadcasting company for indecency. The FCC censured the radio station with a letter of reprimand. The radio station took the case to the Supreme Court and lost in F.C.C. v. Pacifica Foundation.

The Court required the FCC to demonstrate a compelling government interest in regulating these dirty words. The FCC argued that one compelling interest was shielding children from potentially offensive material, and second, ensuring that unwanted speech does not enter one’s home.

The Court also said that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience. The ruling gave the FCC leeway to determine what constituted indecency in different contexts.

If it is true that the CDC cannot use words such as “diversity,” “fetus,” “transgender,” and “vulnerable,” it would present an unprecedented expansion of government censorship. The Trump administration could not meet the compelling interest test.  These words are not obscene or indecent-- or anything else that approaches a compelling interest.

Suppose the administration took a different tack by firing employees who used these words in official documents. This would trigger a different test under Pickering v. Bd. of Education. A high school teacher was fired for publishing a letter in the local newspaper that criticized the board for favoring sports over education.  
Pickering recognizes that public teachers do not relinquish First Amendment rights in their employment, but also enables a government employer to regulate the speech of its employees differently from citizens.  Courts must weigh the competing interests of public employees and their employers.

The Pickering test would not fit clearly this scenario. It says: “To arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
To prevail, the administration would need to prove that its word ban promotes the efficiency of government operations. CDC employees be in the legally awkward position of arguing that the administration was denying their right to political expression. That’s because they don’t view these as political words but simply descriptive terms for their work—an area over which the government, as employer, as a presumption to regulate speech in the workplace.

Given the Orwellian nature of the Trump word ban, my educated guess is that courts would apply the Pickering balancing test in favor of an employee who would be disciplined. But given the wide deference that courts afford employers in this guess, my prediction is not a sure bet.

Finally, there is this possibility: A citizen might sue, claiming a First Amendment right to be free from political suppression of terms such as “fetus.” The Trump administration would face an uphill climb in defending a ban on a term that appears in regular and medical dictionaries.

No Moore, Please: “The negro slave of the South was housed and fed, the white trash of California is placed beneath the Mongolian.”

Roy Moore lost the Senate election, but his broad popularity suggests that many people support his racist ideas. Moore turned heads this week when he justified slavery: “I think it was great at the time when families were united — even though we had slavery — they cared for one another.... Our families were strong, our country had a direction.”

This is not new. It is a rehash of bigoted reasoning that is ingrained in American thought. Consider this brief excerpt from “progressive” labor leaders who were making the case for an “Asiatic Exclusion Zone”— that is, a lid ranging from then-Persia (Iran), east through India, China, Japan and the Phillipines, limiting immigration to 100 people per nation each year. This was eventually achieved in 1929.

For many years it has been impossible to get white persons to do the menial labor performed by Chinese and Japanese— ‘It is Mongolian’s labor and not fit for whites.’ In the agricultural districts a species of help has been created, known as the blanket man. White laborers seldom find permanent employment; the Mongolian is preferred. During harvest time the white man is forced to wander from ranch to ranch and find employment here and there for short periods of time, with the privilege of sleeping in the barn or haystacks. He is looked upon as a vagabond, unfit to associate with his employer or to eat from the same table with him. The negro slave of the South was housed and fed, but the white trash of California is placed beneath the Mongolian.

Source: Samuel Gompers & Herman Gutstadt, Meat Vs. Rice: American Manhood Against Asiatic Coolieism: Which Shall Survive? (1902), at p. 14.

Tweet This! President Trump Nominates LGBT Lawyer to Head EEOC

Kudos to President Trump for nominating Chai Feldman to a third term as head of the EEOC (Equal Employment Opportunity Commission)—the agency that enforces anti-discrimination laws related to work.

As reported by Reuters Legal, Feldblum was a professor at Georgetown University Law Center for nearly two decades before being tapped by then-President Barack Obama to join the commission in 2009, and is a noted expert on disability law and LGBT legal issues.

She was also a staff attorney with the American Civil Liberties Union in the late 1980s, and helped to draft the Americans with Disabilities Act.

She also helped draft the Employment Non-Discrimination Act, a bill first introduced in the U.S. Congress in 1994 that would ban discrimination based on a worker's sexual orientation. (The law has not passed despite several attempts.)

Reuters also reports that Feldblum and a Republican Commissioner of the EEOC, Victoria Lipnic, co-authored a report that said workplace harassment is widespread and anti-bias training had been largely ineffective. Lipnic was appointed by Mr. Trump.

This news is worth a tweet.

What the Alabama Election Means for President Trump’s Judicial Nominees

Some of the president’s nominees are not controversial and are being confirmed by landslide votes. For example, Dabney Freirich was confirmed on Nov. 27 by a 97-3 vote to serve as a federal judge in California.

However, the man in the picture is a highly controversial nominee. Leonard Steven Grasz is “not qualified” for the position, according to a letter sent from the American Bar Association (ABA) to the leaders of the Senate Judiciary Committee on Monday. 
It’s only the third time since 1989 that a judicial nominee has received a unanimous “not qualified” rating from the American Bar Association.

The controversy is that Mr. Grasz not only believes that Roe v. Wade (ruling that a woman has a right to end her pregnancy in the first two trimesters) is unconstitutional, but he goes further in arguing that any woman who has an abortion should face criminal charges (along with her doctor).

President Trump nominated Mr. Grasz for the 8^th Circuit Court of Appeals, an extremely powerful position (one step below the Supreme Court).

Mr. Grasz has worked for “pro-life” groups to enact laws along these lines. In his home state of Nebraska, he was successful in promoting the law. 
The Supreme Court later struck it down.

The day before the Alabama special election, his nomination was brought to the Senate floor. On a motion for cloture (whether to close a filibuster), 48 senators voted for cloture and 47 voted against it. (Read this as 48 Republicans to 47 Democrats.)

To stop a filibuster for any judicial nominee (except the Supreme Court), a simple majority is needed. Until 2013, the practice was 60 votes to stop debate (close debate, or cloture). Senate Leader Harry Reid ended filibusters for all federal court nominees (again, except for the Supreme Court). 
Bad idea. Blame that on the Democrats.

But the election of Doug Jones magnifies the importance of Republicans losing a vote and Democrats gaining a vote. Just look at the close vote for Mr. Grasz.

Bad Tip: Trump Administration Changes Tipping Law

Since 1974, federal wage law has applied to your waitress’s tips. Today, the law allows her to keep all her tips. The restaurant-employer gets to claim a $2 hour credit against its obligation to pay minimum wage ($7.25 per hour). If it’s a slow day at the restaurant—and tips are short of the minimum wage rate— the employer owes the difference between tips and minimum wage (about $5 per hour).

The Trump administration plans a massive change: Restaurants may require “tip pooling.”

This means the employer gets all the tips. The employer can then give it all back to the wait staff.

The justification? Your cook or chef is not tipped. Nor is your dishwasher. The Trump team of lawyers say the purpose of the law is to pay those workers more evenly, relative to wait staff.

But here’s the way it’s worked for 40 years—the employer has to raise pay to keep good cooks.

The new plan has wait staff paying their co-workers—and there is no limit on how much the employer keeps from the tip-pool.

It’s hard not to notice that Trump properties have thousands of tipped employees who, under the rule, will be handing money over to the Trump-owned casino, golf course, hotel, bar, and so on.

“Kink Room” at Work: You Be the Judge of Sexual Harassment

A recently filed lawsuit shines a light on the “locker room” culture that pervades Silicon Valley and elsewhere. This post has a specific purpose: Enable readers to judge the legal threshold for sexual harassment. The lead case is Harris v. Forklift Systems, a Supreme Court ruling from 25 years ago. The Court said that a hostile work environment is to be judged by the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

Now to Elizabeth Scott’s lawsuit (click here to read her legal complaint, https://cbssanfran.files.wordpress.com/2017/05/uploadvr-complaint.pdf). 

Boiling down her 20-page list of allegations, she affirms under oath that her male supervisors discussed their sexual exploits and prowess daily, including talk of having “three ways,” specifics about their sex partners, and male evaluations of female co-workers as promising or unappealing prospects for their sexual exploits. They maintained a “kink room” at work for sexual activity, where occasionally men’s underwear was left behind with tell-tale stains and women were directed to clean-up the room. There is more, but I’ll keep it here.

Now, you be the judge. Frequency (your answer)—is it enough to alter conditions of employment? Severity (your answer)—is it enough to alter conditions of employment? Physically threatening or humiliating, or a mere offensive utterance? (your answer)—is it enough to alter conditions of employment? Unreasonably interferes with an employee’s work performance (your answer)?

Some women played along with the boys. Those who didn’t were shunned— including getting the silent treatment all day at work and being left out of work meetings.

Judge Kozinski’s Porn-Sharing with Women at Work

Judge Alex Kozinski is one of the country’s most influential conservative federal judges. He is part of the libertarian branch of conservative thought— he values less government regulation, and more personal freedom.

His opinions are witty, engaging, and often fun to read. One case we highlight in class relates to a woman who was fired for not wearing make-up. He believed the termination was a form of discrimination because how a person presents her (or his) face is an intensely personal choice.

So I am personally saddened—in the same way that Sen. Franken’s case saddens me— that Judge Kozinski stands accused of showing porn videos to his female law clerks.

We’ll see where this goes, and I can’t make predictions. Nonetheless, here are some implications to consider:

Will this matter focus attention on Justice Clarence Thomas, putting pressure on him to resign? Anita Hill has gone on record in alleging that when she worked as a staff attorney for Thomas, “He spoke about...such matters as women having sex with animals and films showing group sex or rape scenes," and graphically described "his own sexual prowess" and the details of his anatomy. He repeatedly asked her out socially and after she refused he used work situations to discuss sexual subjects.

Will the matter elevate Judge Kozinski on President Trump’s list of future Supreme Court nominees? This is a counter-intuitive idea, of course—but not if one follows the logic of Donald Trump to double down on bad ideas. Here it should be noted that Judge Kozinski voted in favor of President Trump’s travel ban earlier in 2017, departing from the majority ruling of Ninth Circuit appellate judges.

Will the matter lead to the outing of other judges? That’s anyone’s guess … but that discussion circles back to former state supreme court chief justice Roy Moore, who admits he dated teenagers as a 32 year-old prosecuting attorney, and is credibly accused of molesting a child.
These three judges (Kozinski, Thomas, and Moore) are Republicans. Is this a particular character problem for judges who emphasize religious freedom? Do they embrace religion as a shield for their uncontrolled sexual urges?

If there is a bottom line for today, it’s that the judicial robes are no longer covering up a tawdry side to at least one judge and exposes character issues about a sitting Supreme Court justice. Meanwhile, there is a new layer to the national debate about a former state judge’s fitness for any public office.

"Even Nazi expression, no matter the psychic harm on Jewish residents, is nonetheless protected speech." Why That’s Wrong.

The quote is from a First Amendment attorney, Marc Randazza. He represents a neo-Nazi, Andrew Anglin. Anglin published an online hate “newspaper” called The Daily Stormer until internet hosts stopped its publication. That’s a good indication that Randazza’s defense above is wrong—otherwise, he’d be countersuing the internet host that booted Anglin off the Internet.

Here’s what the lawsuit is about. Gersh v. Anglin, a pending lawsuit in federal district court in Montana, alleges that Andrew Anglin, publisher of a white supremacist website called the Daily Stormer, orchestrated an online barrage of intimidation against a Jewish real estate agent.  The campaign against Tanya Gersh arose from false information that she pressured the mother of an Alt-Right leader, Richard Spencer, to sell her property in Whitefish, Montana after Spencer gained notoriety for a Nazi-style gathering in Washington D.C.  

Anglin posted an article calling for readers to “TAKE ACTION” by contacting Gersh and her family, and instructing readers to coordinate their messaging by stating that “you are sickened by their Jew agenda.”  The post provided Gersh’s contact information and included pictures of her family with a yellow Star of David, labelled “Jude.”  Anglin followed up with another post: “Let’s Hit Em Up. Are y’all ready for an old fashioned Troll Storm? Because AYO – it’s that time, fam.”  Typical of the torrent of e-mails, phone calls, voicemails, texts, letters and postcards that bombarded Gersh and her family, one said: “Thanks for demonstrating why your race needs to be collectively ovened (sic). You have no idea what you are doing, six million are only the beginning. We are going to keep track of you for the rest of your life. You will be driven to the brink of suicide….” 

Anglin’s online communication network reached a meeting of the minds to violate Gersh’s constitutional rights.  Anglin’s posts orchestrated a campaign of terror and enlisted followers to intimidate Gersh and her family because they are Jewish. Anglin’s followers used various communication platforms to send death threats, and more generally, anti-Semitic, hateful, and harassing messages.

Numerous e-mails revealed intent to harm Gersh financially because she is Jewish. One stated, “We are going to ruin you, you Kike PoS. The same way you do anyone else. You mother-fuckers are going taste your own medicine, as we harass you & yours in your public & professional lives. You will loose (sic) money.”  Another e-mail threatened: “Gersh, you slimy jewess (sic), do you honestly believe you can force a woman to sell her property for ‘the lowest commission you can manage’ by threatening to call in your local kike ‘tolerance’ groups? In the age of social media?”  The message added, “You’d better lawyer up, kike – we’re going to have your real-estate license over this.”  Similarly, another e-mail said, “Do you think Tanya Gersh and that disgusting pack of Talmudic freaks who work at PureWest Real Estate are going to get away with terrorizing Americans?...We shall see what will become of ‘PureWest’ Real Estate in the coming years.”

Anglin’s co-conspirators organized a boycott against Gersh because she is Jewish. They sent threatening messages to Gersh on her work e-mail, and copied her co-workers.   Some of these e-mails intended to cause Ms. Gersh to lose her job, for example: “You should fire and disavow Tanya Gersh for her unprofessional, illegal, and anti-white conduct. Do the rest of your agents engage in extortion and intimidation as well?”  Another said, “I’m just writing to let you know I will never do business with your company and I will also tell everyone I know not to do business with you until such time as you fire your employee, Tanya Girsh (sic) a vile woman who has taken part in an extortion and harassment campaign against a resident of Whitefish. Get rid of her or get boycotted.”  Callously referring to the Holocaust, another message added, “Six million thanks for your cooperation.”
Tanya Gersh has sued Anglin under Montana's anti-intimidation law. You do not need a law degree to understand that no one has a First Amendment right to organize and direct a campaign of terror that causes extreme fear, concern for one's safety, and loss of one's business relationships.

My research article, “Targeting White Supremacy in the Workplace,” analyzes this case among other instances of white supremacist interference with the rights of Jews, blacks, and immigrants to move freely without fear of harm, and to make a livelihood without enduring a racist boycott. Stanford Law & Policy Review will publish this article early in 2018.

Matt Lauer’s Victims: Why Their Legal Options are Limited

Do the women who have been harassed by Matt Lauer have legal recourse? Taking their allegations as true, their options are limited, perhaps even nil.

Title VII prohibits sex discrimination, including harassment. In general, if a person has a complaint, she must file a charge within 180 calendar days from the day the discrimination took place. That time limit is 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. (New York is such a state, as is NYC.) The allegations appear to be time-barred because the women did not complain on time (I may have missed something that occurred recently).

Lawyers try work-arounds with longer filing periods. A common approach is to sue in tort (a term that simply means a wrong under civil, not criminal, law.)

Let’s suppose he forced a woman to have sex in his office by locking the door on her.

There is a tort of assault and battery. It would clearly apply if the sex act was forced on her. But that tort in New York has a short statute of limitations—one year.

The same is true for the tort of emotional distress. Here, the proof is more demanding but likely met: the victim must show that the behavior is extreme and outrageous and caused emotional or psychological harm. Proof of injury gets tricky in cases where female victims don’t have measurable injuries, such as treatment for anxiety or depression. But again, this has a one year statute of limitations.

Ditto for false imprisonment. That’s another tort. It’s actually very common in sexual harassment cases. The predatory male corners a woman, closes a door on her, or renders her semi-conscious or unconscious. This is false imprisonment. But again, New York as a short statute of limitations. It’s one year.

My conclusion: Unless there are recent incidents and are timely pursued in court—as opposed to media interviews, or internal complaints— Lauer’s victims have no recourse.

Here are three ways to make sexual harassment laws more effective:

1. Increase the statute of limitations at least for Title VII.

2. Make employer strictly liable once they receive a valid complaint and fail to take action to stop the harassment (here, I have in mind complaints from co-workers who have reason to believe that harassment to another worker has occurred). This is not the law today. If a woman fails to use her employer’s complaint system—as is common— the employer is not vicariously liable for her supervisor’s actions (I am assuming that Lauer was in some supervisory role here). In effect, the burden is on the victim to complain.

3. Strengthen anti-retaliation laws. Allow for punitive damages where employers punish women who come forward with valid complaints. Otherwise, the status quo will continue: women will suffer in silence.

The HR Joke is On Us

We tune out HR in our jobs. To understand why, think about Catbert, the evil director of human resources made famous in the Dilbert comic strip. As employees we treat HR seriously only at milestones such applying for a job, changing our benefits, and separating (quitting, retiring, or being fired). But that’s because our employers devalue HR while putting finance, operations, logistics, data analytics and other corporate functions ahead of HR.

It’s no accident that Fox News, CBS and other major corporations are paying a steep price for the predatory behavior of unmanaged stars such as Bill O’Reilly and Charlie Rose. HR was not even available for females who were harassed by O’Reilly and Rose. That’s how America’s workplaces run—or run amok.

To better understand why, let’s think about Vicky Crawford. She worked for 30 years in Nashville’s large school district office. Gene Hughes, her boss— ironically, the head of HR— was accused of sexual harassment. Ms. Crawford never made a formal complaint. But in Ms. Crawford’s presence, Hughes occasionally made crude jokes about his erection, and once pulled her head down to his crotch.

Someone else blew the whistle on the boss. When the district investigated, three other women, including Ms. Crawford, came forward with stories that corroborated the first charge against the boss. Hughes kept his job. The three women? All were fired.

Ms. Crawford’s lawsuit for unlawful retaliation under Title VII was thrown out at trial. That’s because a conservative court read the law’s anti-retaliation clause by applying a narrow dictionary definition. The judge ignored the legislative intent behind Title VII. Congress plainly said the anti-retaliation clause was to protect whistleblowers who participate in discrimination proceedings, and also those who oppose discriminatory behavior.

The Supreme Court reversed this decision. In Crawford v. Metropolitan Government of Nashville (2009), a unanimous Court ruled that opposition includes proactive speaking out and less confrontational opposition—here, answering questions in a sexual harassment complaint.

A common attack against women who come forward with allegations is that they waited too long and therefore their motives are questionable. But research on whistleblowers shows over and over that organizations punish them—and less frequently, punish the real wrongdoers. That’s a good start in explaining why women don’t report or report reluctantly and belatedly.

How can the situation be improved? Recent events mark a good beginning. We’re having a national discussion about sexual harassment. But we had a similar conversation when Anita Hill reported Clarence Thomas’s crude sexual remarks and misconduct in her workplace. At the time, many of us thought that was a watershed. In reality, it was a fleeting moment of recognizing the legal and moral hazards in ignoring this problem.

Just as the Clarence Thomas embarrassment passed, Catbert came into popularity. Part of a wonky, left-leaning satire on the dehumanizing aspects of our work, Catbert helped us devalue our HR colleagues and their mission. Conservatives did their part by attacking “PC” as a civility code at work—as if that’s a bad thing. Boys will be boys, according to this school of thought— meaning that work rules go too far in legislating against crude jokes, come-ons to female colleagues, and tales of male prowess.

As for Vicky Crawford, her boss was the real-life, evil carnation of Catbert. His braggadocio about the size of his erection was funny to him. But for Ms. Crawford, talk of the boss’s erection amounted to a long and powerful yardstick of his power over her and her livelihood. With these jokes, he silenced her for years. The HR joke was cruelly turned against Ms. Crawford -- that is, until the Supreme Court paved the way for the school district to pay Ms. Crawford dearly for protecting a powerful man.  

We Are Pilgrims

My dad’s first job in the U.S. was a baker’s assistant. No English was required—just a willingness to start baking at 4:00 a.m. at a resort in New York’s Catskills.

My dad was a Jewish pilgrim.

The original pilgrims were members of a separatist group. They broke with the Church of England and fled to the Netherlands. There they found tolerance and opportunities to be successful in business and education.

But Amsterdam was too libertine. They feared their group would die from assimilation and a low birth rate.

So they risked the two-month journey by ship to come to America.

We are all pilgrims. Most of us trace our ancestry to another nation. 

If we’re Native Americans, we are dispossessed in our own land—like the pilgrims, a group that has been outside the mainstream of cultural and religious life.

I thank the resort that hired my dad and launched his career. Our family has had more than a million things to be thankful for since that fateful moment.

Happy thanksgiving to all.

Make America Dumb and Dumber

Teacher unions are bad for America, right? That’s what most Republicans say. Their brief against unions? These labor groups protect poorly performing teachers; bargain costly salaries, benefits and pensions; and protect teachers, not students.

Following this script, Wisconsin gutted collective bargaining rights for teachers in 2011.

Six years later, we have data on some effects of the law.

On the employment side, average salaries for teachers in the state have fallen by 2.6% and benefits declined 18.6%.

In addition, 10.5% of public school teachers in Wisconsin left the profession after the 2010-2011 school year, up from 6.4% the year before. The exit rate last year was 8.8%.

In an October news report on testing in Wisconsin schools, only 42.7 percent of students performed as proficient or advanced in English (2016 test). In math, only 40.5 percent of students showed proficiency.

But this is the GOP recipe for an informed electorate and a workforce that performs 1950s-type resource extraction jobs (mining in Kentucky, timber and paper processing in Wisconsin).

For Thanksgiving, Take a Moment to Thank Slaughterhouse Workers

I spent today with slaughterhouse workers in America’s largest beef packing plant. Here are some takeaways.

Worst job? Killing cattle with a probe. The animal enters a chute and is jammed into a tight space. The worker uses a hydraulic press with a probe that crushes the skull and penetrates the entire brain. Kill time? Two seconds.

Workers often develop psychological problems with this job. One man developed a severe drinking problem after cattle were in his dreams and spoke in words to him.

How to buy good pork? These guys have worked with hogs, too. When an animal doesn’t die quickly, its body secretes chemicals that affect the meat. The redder the pork, the faster the kill and the higher the quality. Beef has the same principle but you can’t judge the kill time.

Toughest moment for me? The new method for killing hogs is putting them (about 20) on an elevator, lowering them to a pit, and gassing them. It’s fast and doesn’t spread germs.

This made the death of my family in Auschwitz more real for me.

Workers’ view of their company? They hated their old employer, IBP; they respect Tyson, their new employer. Why? “They talk to us and want to know how our jobs could be better.” Also: “They treat us like people, not like cattle.”

The workers are local union officers. They believe that their union is very important. But they don’t view conflict as an inherent part of their relationship with their employer.

Undocumented workers? I didn’t ask, but half the workers were Hispanic and spoke Spanish.  I’m sure everyone has been verified, but my hunch is that some (or more) have fake IDs. Unemployment in eastern Nebraska is 2 percent, so deporting these workers would mean real hardship for the company and the food chain.

Chain speed? That’s how rapidly animals are “disassembled.” 400 per hour in a beef plant, 600 per hour in a hog plant, 1,200 per hour or more in poultry plants.

Speed hurts workers.

Biggest worry: President Trump's USDA took off limits on chain speed for poultry. More workers will slice off finger tips. These workers fear beef will be “deregulated.”

In a labor market with 2 percent unemployment, these guys are planning already for their next move.

Thank you, slaughterhouse workers.

Evil-Non-Angelical Christians

It’s not fair to law-abiding, tolerant evangelical Christians to besmirch their religious identity with the likes of Roy Moore—an evil-non-angelical Christian.

Consider these cases involving other evil-non-angelical Christians:

Tony Alamo - In 2009, he was convicted of ten federal counts of taking minors across state lines for sex, and sentenced to 150 years in federal prison.

Wayne Bent (aka: Michael Travesser) - Founder of Lord Our Righteousness Church, sometimes called Strong City. Was convicted of one count of criminal sexual contact of a minor and two counts of contributing to the delinquency of a minor in 2008. Was sentenced to 18 years with eight years suspended.

Graham Capill - former leader of Christian Heritage New Zealand. Sentenced to nine-year imprisonment term in 2005 after multiple charges of child sexual abuse against girls younger than twelve.

Fred Phelps - Leader of anti-gay Westboro Baptist Church. Convicted for disorderly conduct and battery.

Theodore Rinaldo - Leader of a religious group in Snohomish, Washington convicted of third-degree statutory rape for having sexual intercourse with one minor girl and of taking indecent liberties with another.

Jim Bakker - Created the PTL organization. Convicted of fraud and conspiracy charges after illegally soliciting millions of dollars from his followers.

Kent Hovind (Dr. Dino) - founder of the Creation Science Evangelism ministry. Willful failure to collect, account for, and pay over Federal income taxes, knowingly structuring transactions in Federally-insured financial institutions to evade the reporting requirements, and obstructing and impeding the administration of the internal revenue laws.

Henry Lyons - Former President of National Baptist Convention, USA, Inc. Convicted for racketeering and grand theft.

Barry Minkow - Head pastor of San Diego's Community Bible Church, and founder of the Fraud Discovery Institute, who had turned to religion and entered the ministry after release from prison for the notorious ZZZZ Best fraud, returned to prison in 2011 for further acts of securities fraud while serving as a clergyman.