President Trump's Executive Orders and National Emergencies

Can President Trump lawfully rescind pay raises to federal workers that have already been approved by Congress for 2019 on grounds of national emergency?

His executive order on December 28^th states as much.

He will almost certainly lose this argument in federal court. Here’s why.

In 1952, during the Korean War, President Harry Truman attempted to seize American steel mills in order to avert a strike. He used an executive order to do so, citing a national emergency (steel was needed to make weapons). 

This led to the Supreme Court decision in Youngstown Sheet & Tube Co. v. Sawyer: The Court ruled that the executive order was unconstitutional. The ruling stands as a limit to presidential authority.

Justice Hugo Black wrote for the Court. He said that the President had no power to act except in those cases expressly or implicitly authorized by the Constitution or an act of Congress.

In the present matter, President Trump is acting against Congress.

There is irony in President Trump’s constant declarations of national emergencies to justify his use of executive orders: Courts don’t buy his reasoning, and are adding to the precedents that limit presidential power.

“Are You a U.S. Citizen?” Where Do You Draw the Line?

Bobbie Chitwood and my family have something in common: We’ve been stopped at the ICE checkpoint in Arivaca, Arizona. Ms. Chitwood drives through the checkpoint regularly. In a Los Angeles Times story, she claims that racial profiling is a problem here. "This just impedes the movement of people," Chitwood said. "It feels very militaristic. The checkpoints feel like the beginning of something that could get worse. I don't like being stopped by people with guns."

We agree with Bobbie. We took photos to give blog readers a sense of how this feels.

I oppose the practice—but I do not write to persuade anyone. Rather, let me pose a few questions for your thoughtful consideration.

The main question is: Where do you draw the line on permissible checkpoints and ICE conduct?

Location: The U.S. Border Patrol operates 71 traffic checkpoints, including 33 permanent traffic checkpoints, near the Mexico-U.S. border. All are within 75 miles of the border. The Supreme Court has ruled this is constitutional.

What about a checkpoint at every state border on interstates and four-lane state highways? What about a checkpoint at the edge of your city?

Discretion: We were asked: “Are you U.S. citizens?” Suppose we refused to answer. What should be the consequence? Suppose we were asked for photo IDs. Would you be okay with this? Suppose people are asked more questions if they have an accent or dark skin? Would you limit border patrol discretion? If yes, how?

Monitoring: We drove through a perimeter that appeared to image our car and passengers. Do problems with drugs and illegal immigration justify this collection of information? If you're okay with this, how do feel about  using these procedures for opioid problems in Appalachia and white, rural America?

Feel free to share your thoughts on FB or to me at mhl@illinois.edu.

Pain and Anxiety Relief: Readers Comment on CBD

My blog focuses on employment, labor, and immigration matters. I depart from my routine to pass along information you might miss on CBD. It’s a very popular and controversial extract of marijuana.

The New York Times has an Op-Ed piece today from Dr. Richard Friedman. The gist is that CBD is overhyped and lacks enough clinical research to justify its use (it can be bought over-the-counter).

I am reprinting readers’ accounts of their use of CBD. They mostly contradict the medical research. 

Consider this for yourself, family, or friends-- and pets (with arthritis issues).

majordmz

Ponte Vedra, FL4m ago

I recently started using CBD sublingual drops for chronic arthritis pain throughout my body. It doesn't completely eliminate pain; nothing really does. But it lessens my pain considerably and I'd rather use CBD than continue to get steroid injections and take prescription anti-inflammatory medications. Everyone reacts differently to treatments but I'm convinced that CBD and THC based products have a role in treating certain chronic conditions. It sure beats opioids, we can all see what happened when big pharma morphed into pill pushers.

JerryV

NYC9m ago

A number of people here have claimed that CBD is not effective without some additional DHC. However, I have been using CBD oil sublingually with good results for about a year. I get it from "Green Roads" because it is tested by a third part pharmacist and it claims that it contains no DHC. Some of the claims here make me want to try CBD with small qualities of DHC. Where can it be legally obtained from a legitimate outfit through the mail?

T73

USA12m ago

Reading that CBD oil taken sublingually helps with chronic severe pain on the advice from the MD specialist treating me that I should try it I ordered a vial that gives the 50mg dosage recommended for my body mass and severity of symptoms. What I found that within a short time it takes the edge off. At 30 minutes the effect stabilizes and for six to eight hours I have substantial relief with some benefit lasting for close to 24 hours. That is with a product guaranteed to meet FDA requirements for sale as zero THC but with all the other compounds for the so-called entourage benefits. But with sales tax it amounts to close to $170 for sixty doses which is a lot to handle out of pocket. And I wonder if a product with some THC might work better. What seems clear though is that the legal declaration of marijuana as having no medicinal benefits and requiing cannabis to be listed as a Schedule one drug is indefensible today and should be rescinded by Congress immediately if just to permit the studies that should have been done long ago and to permit doctors to recommend it as an herbal supplement for conditions where it is proving beneficial in the 33 states that have already legalized its use.

Mara Dolan

Cambridge, MA1h ago

I tried it, and it definitely made me a little bit high. It also helped a great deal with the muscle spasm in my back. I would like more research on whether it makes people a little bit high, as in my case, but there certainly appear to be a lot of credible people who say it helps them. As long as it isn’t being used to mask underlying causes which should be addressed, that seems like a very good development. I’m puzzled as to why that isn’t more of a cause for celebration for this writer.

Jim R

1h ago

While reasearch is important, the ability for people to use a natural compound for medicinal purposes should not be trivalized. As a survivor of major surgeries to repair aortic dissections, sleeping after weening off oxy was a problem. CBD helped me sleep, and I would hope doctors and scientists would see the opiate connection.

Drew

Santa Barbara1h ago

I have used CBD capsules to sleep through the night for the past year. When I run out, I wake up at 4 am and can't get back to sleep. That's my own anecdotal experience and not a placebo effect.

James D Ritchie

Truckee, Ca1h ago

Chopper crash Vietnam 1969. Fractured cervical spine, subluxed sacroiliac joint, pelvic/hip joint damage. Chronic pain for 49 years. Opiates? No chance. Morphine at aid station before evac made it clear—I would become an addict. Marijuana? Not a chance. Three surgeries—meh. CBD vape with minimal THC? My son bought it for me and said try it, or we’re done. Immediate: Relaxation. 15 minutes: Hip and knee arthritis relieved. 30 minutes: Greater trochanter bursitis relief. 1 hour: Sacroiliac joint relaxed enough so I could self-adjust. After about a month, with maybe 10 self-adjusts per day, significant relief to sciatica—SI joint stays where it is supposed to be. Can you go to a chiropractor 10 times a day? For a month? I had to titrate to find my dose, and son did significant research to find reliable product. I’m not a real doctor, just a retired dentist. Works for me, only occasional use to relieve/prevent spasms. We need the FDA to authorise testing and production standards to provide real data for dosage and medical standards.

Mark

Cheboygan1h ago

I have had terrible insomnia for years. Nothing helped and the stronger drugs had awful side effects( having Trump in office doesn't help either). Five months ago I started taking CBD oil at bed time and it has been a miracle. I sleep long and even dream most nights. Whatever the reason for its effectiveness, I thank the universe and and whoever brought this to market.

Bruce Rozenblit

Kansas City, MO1h ago

I have used CBD balms for treating pain associated with athletic injuries. It works. It definitely reduced the level of pain. It lasts about four hours. Ibuprofen is more effective for treating pain that is deeper in the body and lasts longer, but it has its own problems like gastric bleeding. CBD for me works best for injuries closer to the skin where it can get to the tissues involved. It works very quickly. I have not tried any ingested CBD. Pain management is a real problem in this country. CBD gives us another option. Add it to Ibuprofen or Acetaminophen, and the combination could be enough to keep people off of opiods. Injuries are always best treated with rest. Just leave whatever you hurt alone and let it heal. But sometimes you can't, or the pain makes life extremely difficult. CBD will not hurt you. It is not toxic. Try it. If it doesn't work, throw it out. A small jar of balm will set you back about $30 to $40. How much does a doctor visit cost? Then, how much do the magic pills they prescribe cost? Doctors always oppose anything that doesn't make them money. That's what many of those studies are for.

hris Henry

Missoula, MT1h ago

I produce and sell a topical CBD balm, and I am also a natural skeptic. The panacea effects folks ascribe to CBD is more than enough to make me wonder, but based on a surfeit of personal experience and observations over the last 2 years, I can say for sure that CBD really helps some folks out. In some cases in a life-changing way. I summarize my anecdotal efficacy observations as such - CBD seems to do something for about 75% of people, and that can range anywhere from ibuprofen-like effects, all the way up to "you've changed my life, I'm never taking opiods again" (a piece of feedback I've gotten numerous times). I have seen folks that CBD didn't not help one condition very much (Arachnoiditis, for example) but it helped immensely with an unrelated condition for the same person (slipped disc in the case of the Arachnoiditis sufferer). anybody telling you that CBD doesn't work without THC is confused & misinformed. My product has zero THC by design and multiple health care professionals in the town I live in have started recommending it after seeing how well it works. There's a lot of "full spectrum hemp oil" multi level marketing campaigns out there misinforming folks on that level. CBD works great on it's own, THC definitely helps, but we don't know why or how much. yes, it is amazing for pets. I've never met a dog that didn't like CBD and have seen so many elderly animals gain such benefit, movement, and pain relief from it.

Ardyth

San Diego2h ago

I bought a vial of CBD capsules a week and a half ago when I was in Palm Springs because I was told it would help me sleep better. I took one at bedtime...in that limited time I gained 5 lbs. I became ravenous so it had a similar, while less severe, effect as marijuana. The last time I smoked pot was about 30 years ago when I was at some guy’s apartment and he was trying to seduce me. His plans were suddenly thwarted by the munchies. I ended up eating a wilted carrot dipped in a jar of peanut butter before I frantically left to devour what I could in my own sparsely populated refrigerator...no it didn’t discernibly help my sleep ...and it was a wasted $93.

Virginia Beck, NP

Kaua'i Hawai'i2h ago

I use CBD oil from a reliable pharmacy. Each batch is independently tested by 3 different labs for the correct content and concentration. I tried it on my German Shepherd and adopted dog with abuse history. CBD oil greatly reduced PTSD issues, and threshold for anxiety attacks. (You haven't lived, till a GSD paces wildly unconsolable, when frightened!) I am now using it for central canal stenosis, while awaiting back surgery. I used a few Aleve a week, and manage to stay off any other pain meds. Real CBD oils, when pharmacologically certified have no THC, heavy metals, or other toxic issues. I buy in bulk, dilute with peanut oil for the dog, and titrate for myself at low levels. I am 70+ and high functioning. It is dramatically cost effective, and minimal to no noted side effects.

Cliff

Philadelphia 2h ago

I have chronic pain in the groin area from hernia mesh complications from hernia repair surgery. The pain was unbearable on some days. Acupuncture gave me temporary relief. My surgeon sent me to a pain doctor who was going give me a nerve blocker or prescribe medical marijuana. I wanted neither. (And forget about opioids. They would have been the death of me.) Instead he had me try CBD oil which I take orally, 15 mg, 3 times a day. It has given me remarkable relief. I feel no negative side effects. Unfortunately, none of the cost of the CBD is covered by health insurance, so it’s costing me about $180/month out-of-pocket. But it’s worth it to have significantly diminished pain. For reasons that would take too long to explain, I am convinced that there is no placebo effect involved – but I wouldn’t care if there was. I have an 80 to 90 percent reduction in pain on most days.

ADN

New York City2h ago

Word of caution: before you try CBD, Google it with any pharmaceuticals you take. Recent research shows that it can increase or decrease, in certain cases radically, blood levels of drugs your normally take. In those cases your life could be at stake. Also be aware that not enough research has been done to determine every drug interaction, and that will take some time. Caveat emptor.

Dave

Edmonton 3h ago

CBD tinctures have been very helpful as I await double hip replacement surgery. I sleep much better, have less anxiety and can occasionally skip the anti inflammatory meds that are proven to ruin kidneys. All I can say is I feel better when taking than the times I’ve taken a break from them.

Danish, French Laws Requires New Citizens to Shake Hands— An Offense for Some Jews and Muslims

France has found a new way to deny citizenship to Muslims and Jews: require a handshake during the citizenship ceremony. For observant Muslims and Jews, any touching between the sexes is strictly prohibited. In other words, these nations are requiring people to make a choice between citizenship and religious observance—an absurd choice that is based on the idea that a good citizen is a person who assimilates.

Denmark’s handshake law goes into effect on January 1^st.

France has already denied citizenship on these grounds. An Algerian woman refused to shake hands with male officials at a French naturalization ceremony. France’s top administrative court ruled that she cannot become a citizen, saying that her refusal “in a place and at a moment that are symbolic, reveals a lack of assimilation.”

The court rejected her explanation that she cannot shake hands with a man due to her religious convictions.

The men in the picture presumably cannot touch a woman’s hand but they can hold each other’s hands and comply with their religious precepts. France and Denmark have much to learn from them.

Christmastime for Jews Brings Prayers for Chinese Christians and Muslims

Today, my family will join untold numbers of Jews who will dine on Chinese. This has evolved as Christmas tradition: two minority groups that do not observe Christmas are brought together by their differentness to cook, dine, and continue with business.

But today brings sobering news from China that should alarm all of us, regardless of faith or nationality.

The New York Times reports a vicious crackdown on the Christian faith. Quoting now:

“Mr. Xi, apparently concerned that independent worship might pose a threat to the ruling Communist Party’s dominance over daily life in China, has sought to bring Christianity more firmly under the party’s control. The government this year banned online sales of the Bible, burned crosses, demolished churches, and forced at least a half-dozen places of worship to close. The campaign comes as Mr. Xi, the most powerful Chinese leader since Mao Zedong, has worked to more aggressively control religion across China, including the detention of thousands of Muslims in the western region of Xinjiang.”

 Christmastime for the Jews brings prayers for religious freedom. G-d bless our Christian and Muslim brothers and sisters in China.

What Do Honors Undergrads Think About Race and Immigration? Reflections from Student Papers

Reflection on Hate Groups: Black Nationalism

The discussion of hate groups today led me to do some further browsing of the Southern Policy Law Center’s website to explore the prevalence of hate groups, especially those in Illinois. I found that my hometown, Rockford, hosts the headquarters for four different hate groups, two of which are anti-LGBTQ, and the remaining two are black nationalist groups. The website’s discussion of black nationalist groups was extremely interesting, because it highlighted the presence of these groups as a response to white racism. Unfortunately, I have observed the effects of racism within my hometown, which is very much segregated by race and class divisions. If black nationalist groups are a product of white racism, it is fathomable that two black nationalist groups have created their headquarters in Rockford, where there is likely a considerable level of white resentment.

***

The Legal Production of Mexican/Migrant “Illegality”

          I am really glad that this article was included with our readings for this week, as immigration, especially the migration of the people of México, is an issue that hits very close to home for me. Many of my family members are immigrants from both México and Panamá, so when talking about the controversies regarding the migration of these groups of people, I feel very humbled and moved because I know I would not be in the position I am today without the movements of my family members.

***

Immigration Tribal Indians

The concept of Indians as citizens of the United States is not something that I have ever taken the time to think about. In fact, Indians within our history classes are a limited topic of discussion, if not omitted completely. This has by far been one of my favorite articles because it was so enlightening on a part of the history of the Indians during the building stages of the United States.

***

Can Asians Assimilate in America?

The article reminded me of things I’d heard from friends of mine who are people and especially women of color who grew up with me in Chicago. One of my closest friends is Filipino. She was born in the Philippines, emigrated to Canada and then to the United States. She grew up in a Puerto Rican neighborhood near mine and is very conscious of how her neighborhood and her background worked together, in a way, to influence who she is today. The reason I bring this up is because she always talks about her perpetual crisis of confidence: whether to embrace American culture as is very easy to do or to work to retain her Filipino and urban roots.

***

Is The Constitution a Racist Document?

The Constitution is well loved in America. In both my Political Science and Law classes, whenever the Constitution was mentioned my professors said that it was a great document, being the oldest and shortest constitution in the world which created an effective form of government and stopped the young United States from falling apart. The question is, should it be as celebrated as it is?

My answer is no. The Constitution should not be hated, as it is a good legal document that set up a government that has lasted more than 200 years. However, I think a lot of people gloss over the darker parts of the Constitution. For example, the first line is a lie. “We” the people. Does this document really represent the common people? None of the people who drafted the Constitution were a part of the common public, they were the elite landowners of American society. Can the Constitution really describe itself as representing the people if (at the time of its creation) you couldn’t even participate in its democratic institutions if you were female, poor, black, or Native American?

***

What Is Race?

During class we asked the question “What is race?”, and it is my personal perspective that race is something that is mainly socially based. It is something that is arbitrarily defined by ruling classes (usually whites) and used to exploit and divide populations. It is true that there are genetic differences between people from Africa and people from Europe, but in the scale of the human genome these differences are extremely minor.

Would the U.S. Take You In If You Revolted as a Slave on a Ship? The Gripping Amistad Case

Picture yourself on the slave-trading ship, La Amistad. You and 48 other slaves were being transported from Havana to Puerto Principe (Cuba) to be sold. When your ship ran out of rations, the ship’s cook told you would be killed and eaten. One of you—Cinque— freed himself from his chains and killed the cook—and next, killed the captain.

You were in control of the ship and wanted to sail to a free port. You needed help from the sailors. They deceived you, guiding the ship to a Long Island, New York port. They chose this port because slavery was legal in the U.S. and America could be trusted to return you—viewed as “property”— to Jose Ruiz and Pedro Montez.

You were caught between the conflicting claims of Spain—a rogue nation that traded slaves in the Caribbean in the 1840s-- and Great Britain, a nation that led an international effort to abolish slave trading. (Spain argued that its obligations did not extend to its possession, Cuba.)

Would the U.S. hand you over to Spanish authorities or free you?

The Supreme Court ordered your freedom, stating:

“… supposing these African negroes not to be slaves, but kidnapped, and free negroes, the treaty with Spain cannot be obligatory upon them; and the United States are bound to respect their rights as much as those of Spanish subjects…. and that the said negroes be declared to be free, and be dismissed from the custody of the court, and go without delay.”

Abolitionist supporters took the survivors – 36 men and boys and three girls – to Farmington, Connecticut, a village that figured prominently as a terminal point for the Underground Railroad.

Would the U.S. reach the same legal outcome today? Would these former slaves be allowed to live in the U.S. without fear of removal to a foreign power?

My Boss Kissed My Lips (But I Kept Silent): Why Employment Lawyers Rank This a Top 2018 Case

(Hoda Kotb Fends Off Kiss From Regis)

Sherri Minarsky’s supervisor frequently tried to kiss her on the lips when he left the office, approached her from behind and embraced her, and massaged her shoulders or touch her face.

Under Supreme Court precedents from 1998 (Faragher and Ellerth), an employer is liable for a supervisor’s sexual harassment if it leads to a concrete adverse outcome, such a firing, demotion, denial of pay raise, etc.

But, if the harassment has no objectively adverse effect, it falls into a different category: The employer is not liable for a supervisor’s conduct unless the employee complains and management ignores her (or him).

Ms. Minarsky never complained. For that reason, the trial court threw out her lawsuit.

The Third Circuit Court of Appeals, citing new evidence from the #MeToo movement that some victims of supervisor harassment are fearful of reporting on their boss, reversed the lower court and made new law.

Listen to what the court said:

“Her silence might be viewed as objectively reasonable in light of the persuasive facts Minarsky has set forth,” the opinion said, pointing to Minarsky’s testimony that she feared losing her job if she came forward.

The court also noted “national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years.”

In a footnote, the court cited studies in which one-third of women reported unwanted sexual advances from male co-workers, and where three out of four women who experience sexual harassment in the workplace opted not to report it.

What does this mean? It means that harassment victims who suffer in silence have a chance to tell their account to juries.

Employment Lawyers (Not a Fun Group) Give Good Legal Advice for Holiday Parties

(Photo Credit: Stu's Views)

Law360 asked employment lawyers for their legal tips to employers who host holiday parties.

The attorneys’ advice falls into four categories: 1. Limit Booze. 2. Minimize Opportunities for #MeToo Moments. 3. Beware the After Party. 4. Avoid Religion and Pot.

Now, some elaboration.

Michael Schmidt, vice chair of Cozen O’Connor PC’s labor and employment practice, said, “I think it’s fair to say that companies are definitely questioning both the need for holiday parties this year and how they go about doing [them] this year because of the #MeToo movement and everything that’s gone on the past year in the sexual harassment area.” 

Typical problems: “For example, a drunk supervisor may touch a subordinate without consent, or a conversation between inebriated colleagues at the bar could lead to offensive comments or an improper sexual proposition.”

Jennifer Fowler-Hermes, chair of Williams Parker Harrison Dietz & Getzen’s labor and employment practice, notes: “Employers who do allow alcohol at their company events should realize that alcohol affects individuals differently. They should also recognize that employees who would not normally engage in improper conduct may do so after several drinks.”

She suggests that employers make it known in advance of the party that the company’s standards of conduct and harassment rules remain in effect. 
She also suggested that the duration of the party be limited, particularly if alcohol is served, and that employers make sure that the drink menu itself is limited, that food is available and that workers aren’t serving themselves drinks.

Craig Bonnist of McCarter & English LLP observed: “A lot of what comes across my desk is what happens after the party. An employer needs to make it clear that a party ends at a certain time.” 

While employers can try their hardest to make sure their holiday event is conducted by the book, Bonnist noted that many legal problems actually arise from things that happen after the party was supposed to have ended.

That means employers must set a clear end to the party and managers should avoid even attending any after-parties, let alone picking up a bar tab, he said.

Several attorneys advise employers to avoid religious symbolism at company-sponsored events to avoid potential claims of religious discrimination and opt instead for seasonal themes.

“I would set the expectation or let employees know ahead of time that this is an event to celebrate the end of the year and is not to celebrate any particular religious holiday,” Bonnist said.

Meanwhile, a new issue that is increasingly working its way into employers’ minds is what they should do if they operate in states that allow for some form of marijuana use and an employee at a company-sponsored event decides to partake. 

Schmidt noted that even in states that have legalized marijuana for recreational use, it is still an unlawful drug under federal law and users are “arguably committing a federal crime.” He added: “It very much is a new wrinkle in this area and one that doesn’t have a whole lot of answers or definitive answers just yet.” 

***

Material excerpted from Vin Gurrieri, “How To Throw A Holiday Party — Without The Legal Hangover,” Law 360 (Dec. 13, 2018).

Trump Administration to Deport 8,000 Vietnamese Immigrants

Some of us remember this iconic photo: It’s the last airlift of South Vietnamese sympathizers of the U.S. government during the war.

My research unearthed cabinet level minutes that were declassified in 1990: “See The White House, Notes of the Cabinet Meeting (Apr. 29, 1975, 9:45 a.m.), Gerald R. Ford Presidential Library, available in (fascinating link!) https://www.fordlibrarymuseum.gov/library/exhibits/vietnam/000800055-001.pdf (“The President reiterated that a total of 43-45000 South Vietnamese will have been evacuated.”) Notably, these minutes do not state whether the evacuees would be allowed entry to the U.S. 

From 1975-1995, Vietnamese immigrants had no legal status in the U.S. Presidential administrations refused to deport them—indeed, could not deport them— because there was no diplomatic relationship with Viet Nam. That relationship was restored in 1995, making it possible in theory to deport Vietnamese immigrants. Even then, Vietnam refused to enter into an agreement to return anyone from the pre-1995 period.

Now the Trump administration is pressuring VietNam to take back 8,000 of these pre-1995 immigrants. All have had contact with law enforcement, many have been convicted, though little is known about whether these are misdemeanors, felonies, or a mix.

This is part of a larger plan by the administration to disrupt immigrant communities that have set down roots in the U.S.—communities that include Haitians, Salvadorans, Nicaraguans, Hondurans (all who have had their temporary immigration status revoked by the administration).

My thought? If 8,000 Vietnamese immigrants have broken the law, let them serve time in U.S. prisons, assuming that judges sentence them to jail. Deporting an older person who was airlifted in this photo is inhumane and unnecessary.

For more, read https://www.clearinghouse.net/chDocs/public/IM-CA-0115-0003.pdf.

Postpartum Medicaid Coverage & FMLA: Birth and Miscarriage Update

Did you know that Medicaid pays for nearly 50 percent of U.S. births? It does—and the Affordable Care Act sets minimum standards for preventive care (see below).

Texas Democrats have introduced a bill to expand postpartum Medicaid coverage after a woman gives birth or miscarries. Currently, the benefit is 60 days. Democrats want the eligibility to extend to 12 months.

For comparison of state coverage, click on this map:

The Texas legislation would not cost employers directly. But an employee who has given birth or miscarried may be more likely to take time off of work and invoke the Family and Medical Leave Act. This would also bring up issues surrounding job protection under the FMLA, as well as Medicaid work requirements.

Table 3: Preventive Services for Pregnant Women Required for Coverage under ACA Medicaid Expansion

Anemia screening on a routine basis for pregnant women

Bacteriuria urinary tract or other infection for pregnant women

Breastfeeding comprehensive support and counseling from trained providers, as well as access to breastfeeding supplies including pumps, for pregnant and nursing women

Depression Screening for all adults, including pregnant and postpartum women

Folic Acid supplements for women who may become pregnant

Gestational diabetes screening for women 24-28 weeks pregnant and those at high risk of developing gestational diabetes

Hepatitis B screening for pregnant women at their first prenatal visit

HIV screening for all pregnant women, including those in labor who are untested or with unknown HIV Status

Rh Incompatibility screening for all pregnant women, and follow-testing for women at higher risk

Tobacco use screening and interventions for all women, and expanded for pregnant tobacco users

Syphilis screening for all pregnant women and other women at increased risk

SOURCE: HHS, Preventive Services Covered Under the Affordable Care Act, September 27, 2012

Source: Kaiser Family Foundation, https://www.kff.org/report-section/medicaid-coverage-of-pregnancy-and-perinatal-benefits-introduction/

Trump “Hire American” Rule for Foreign Nationals Forces U.S. Employers to Take Less Qualified People

(Photo Credit: Dave Carpenter)

The Trump administration is not always about deregulation: Indeed, when it comes to the H-1B visa— a specialty work visa for high tech workers— the Trump administration is substituting its judgment for Silicon Valley employers, research universities, and other high-standards employers.

Here is the problem as stated by Vic Goel, an immigration policy expert:

“This new regulation would make it possible for a foreign national who recently graduated with a master’s degree from a U.S. university to have a significantly better chance of securing an H-1B visa than an individual with years of relevant experience and a Ph.D. from a foreign university. Because USCIS’s stated goal is to make it easier for the most-skilled or highest-paid to secure H-1B visas, it doesn’t make sense to implement a regulation that allows one who graduates at the bottom of the master’s degree class at the lowest-ranked U.S. university to hold an advantage over the top graduate from a doctoral program at a leading foreign university, such as Oxford or Cambridge.”

This is an elaboration of President Trump’s foolish “Hire American” executive order.

The proposed rule also adds a very tedious new pre-registration requirement. 

***

Some readers of this blog will want more information.

See Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens, 83 Fed.Reg. 62406 (2018), https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject.

For analysis of the complex new rule, see Stuart Anderson, New H-1B Rule Likely Unlawful And More Costly For Employers, Forbes (Dec. 10, 2018), available https://www.forbes.com/sites/stuartanderson/2018/12/10/new-h-1b-rule-likely-unlawful-and-more-costly-for-employers/amp/, explaining that Congress enacted legislation to allow 65,000 H-1B visas to be filled without regard to whether the petitioner held a Bachelor’s or Master’s degree, followed by a 20,000 extension of the cap—after the 65,000 petitions are granted— to persons with Master’s degree. The proposed rule flips the order of filling visas, and limits the new quota to foreign graduates of American universities.

Dumbest New Employment Laws? Democratic and Republican Clunkers

As the year winds down, I’m receiving year-end updates from various legal subscriptions—and I’m combing them for my Dumbest Employment Law of the Year.

Here are two candidates.

Democratic Clunker: California’s new “ABC” independent contractor law. The law corrects for employer abuses known as “misclassification.” This occurs when a company converts or defines an actual employment-based job and warps it into an independent contractor relationship. Example: Major telecoms have laid-off cable installers but engage them (ahem … avoid use of “rehire” because that means they’re employees) as independent contractors. Advantages: This avoids employment taxes, worker’s compensation premiums and claims, and a bevy of possible employment lawsuits (e.g., race discrimination). Downside: Plaintiff lawyers are beating the pants off companies who do this. Companies are being hit with large judgments for overtime, damages, attorney’s fees and so on.

Now come Democrats in California, after the Republican Party was decimated in November. They want to codify a recent state Supreme Court ruling that cracks down on independent contracting by employers.

The bill is overkill. Yes, it rectifies problems … but it defines independent contracting so narrowly that firms such as Google and Facebook—who rely heavily on contract workers— will feel tempted to move large blocs of work outside the state and maybe the country—or maybe to AI (artificial intelligence). If passed, the law might immediately result in large new employment taxes for companies. It’s too much, too soon. 
For more on the ABC test, see  
https://www.sacbee.com/news/politics-government/capitol-alert/article222466405.html

A better idea (if I may) would be to insert an income threshold for contractor status—say, $5,000 per month—  to protect low-wage earners such as nurses, cable installers, couriers, and to treat higher wage earners as actual contract workers. In other words, use the ABC test, but only when individuals are under the earnings limit. Thus, cable installers, nurse’s aides, couriers, Uber drivers and similar would be reclassified as employees—but skilled computer programmers, consultants, on-call physicians, and similar would still be independent contractors because their higher earnings imply mobility to find new work and also specialization associated with contract workers.

Republican Clunker: Michigan’s new law that limits how much accrued sick leave an employer owes to departing employees. The details are not clear because this is part of the Republican power-grab (with bills drafted behind closed doors and passed without hearings for the public). The gist would be that companies could pocket an employee’s accrued sick leave.

First—how greedy. Employers define this benefit. If they decide to award it, they should pay it out.

But never mind that. Employees will figure this out on their own. Instead of giving two weeks’ notice and working that time to transition the job to a new person or to give the firm time to make a new hire, employees will call in sick, work the new job, and liquidate their accrued sick leave. This is a dumb, mean-spirited law that incentivizes irresponsible employee behavior.