You Think Professors Are Liberal?

Not so for the NYU Law Conference on Liberty and Fairness.

Today’s conference was organized by law professors and students who embrace libertarian ideas. They strongly oppose government regulation of markets, including labor markets. They don’t like unions at all. 
To them, unions are government-sanctioned monopolies that deprive individuals of freedom, bargain a “level” rate for all (unfair to individuals), and strangle government, especially state governments. Unions, in their view, are the single biggest reason states such as Illinois are essentially bankrupt.
All good points.

I was invited as a counter-voice. My libertarian colleagues believe union dues are compelled speech in violation of the First Amendment.

So I brought up the West Virginia teachers’ strike. These public employees do not have collective bargaining.

Is there a public good in paying teachers so poorly that they are on food stamps? 
Someone said the solution to that is to take away food stamps. 
Will that improve public education, I asked? 
Create more charter schools.

Alright, then: If public employees have a First Amendment right not to pay mandatory dues on grounds of free speech, what happens if we return to the days when unions were treated as criminal conspiracies. (They were.)

Does the First Amendment grant teachers and other public employees a right of free association to join an “illegal” organization called a labor union?

No one answered that question. No one. 

Can Arizona Avoid Paying Basketball Coach If He Bribed Star Recruit?

Arizona Head Basketball Coach Sean Miller was allegedly caught on multiple FBI wiretaps talking about offering a recruit $100,000 to commit to Arizona, according to ESPN.

Miller has about $10 million left on his employment contract.

But there is something odd and disturbing about this agreement. Arizona bargained for the right to fire Miller for cause. While cause is not defined, there is no doubt that violating the law and NCAA rules would be sufficient cause to terminate the contract.

And it is—BUT, a report in Forbes (https://www.forbes.com/sites/darrenheitner/2018/02/24/drafting-error-that-could-cost-university-of-arizona-millions-if-sean-miller-is-fired/#674facdc522d) 
shows that his contract also provides for “liquidated damages” for Arizona’s right to exercise this clause. In this case, Arizona could be on the hook for 85% of the unpaid contract—close to $8 million.

Yes, that is crazy. It shows just how desperate some schools are to hire star coaches.

Currently, I am teaching an employment law course that deals with terminating employment relationships, including discharge for cause.

We will discuss this case soon. For now, I offer two thoughts on how Arizona might deal with this situation. Both involve withholding payment.

1. Arizona is in a tough spot because courts uphold contracts, even bad bargains. There are rare instances where a party can ask a court to go beyond the four corners of a contract. This involves the doctrine of “good faith and fair dealing.” This means that every contract creates a presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract. It is implied in every contract in order to reinforce the express covenants or promises of the contract. Often, it comes into play when technical or strict compliance with a contract would create a manifest injustice; or alternately, where one party (here, Miller) violates the contract in bad faith. Make no mistake: This is a longshot strategy. Again, if courts intervened every time a deal turned sour, the value of contracts would be greatly diminished.

2. Arizona can seek to avoid payment on grounds that the contract, as applied to Miller, is illegal (the doctrine of illegality). This, too, would be a really tough sell to a court. The employment contract has no illegal terms. An example might be a New York billionaire who sells condos at far above market value to Russian oligarchs in order to launder money and avoid U.S. tax laws. If a Russian breached the contract, the New York real estate mogul would have no recourse to collect on the contract. For Arizona, they would need to argue that payment of $8 million to Miller would reward illegality—IF, that is, he were indicted or convicted (and he is neither). But again, the contract itself is not an illegal bargain—so I have strong doubts.

If Arizona fires Sean Miller, and if they bargained this insanely stupid “for cause” termination clause, they will likely need to pay up.

Thinking of Unfriending Someone? Read Late Wisdom

An old poetry book tumbled from my office shelf. The book opened itself to Late Wisdom, by George Crabbe (early 1800s). It seems to speak to our divided society, choosing and losing friends, and persuading our friends to temper their viewpoints. I don’t know if the short poem tells us what to do about annoying Facebook friends, or whether virtue can never overcome tyranny—but it may stir you to think. As for me, I hope for more virtue, less tyranny ... and friends.

Late Wisdom

WE’VE trod the maze of error round,    

  Long wandering in the winding glade;

And now the torch of truth is found,     

  It only shows us where we strayed:     

By long experience taught, we know—          5

  Can rightly judge of friends and foes; 

Can all the worth of these allow,            

  And all the faults discern in those.       

Now, 'tis our boast that we can quell    

  The wildest passions in their rage,          10

Can their destructive force repel,           

  And their impetuous wrath assuage.—              

Ah, Virtue! dost thou arm when now    

  This bold rebellious race are fled?       

When all these tyrants rest, and thou      15

  Art warring with the mighty dead?

Credit: Oxford Book of English Verse, p. 572 (1900)

Most Teachers in West Virginia Set to Strike (Illegally)

Teachers in West Virginia have voted by overwhelming margins to go on strike Thursday—and to stay out.

They have not had a pay raise since 2014. Since that time, their health insurance premiums have soared as the state has refused to pay for these increases.

West Virginia has no collective bargaining law for teachers. They are voluntary members of two teachers unions. Those organizations lobby for pay raises.

All of this means that teachers could be ordered by a judge to return to work—and if they violate the order, face jail time.

This scenario unfolded in Chicago during an illegal fire fighters strike in 1980 (photo below). Anywhere from 50% to 87% of fire fighters walked off the job.

In West Virginia, unions essentially lobby lawmakers to pass legislation improving pay and benefits, rather than bargain directly on behalf of members. The lack of a labor law means there is no mechanism for bargaining, and strike-avoidance measures such as mediation or arbitration. Labor disputes come down to street-level protests and action/inaction by the statehouse.

Teachers might lose the strike. Districts already allow non-certified instructors to teach in public classrooms.

A Mickey Mouse Contract Proposal

       

Aren’t the $1,000 pay raises wonderful! … Well, not when you look carefully at what’s going on. When have employers ever made bonus payments in exact increments to everyone in their company, from the least skilled to the most skilled, or the lowest performers to the best performers? And how is that Wal-Mart’s one million employees (low skilled) get the exact pay raise of 145,000 Bank of America employees—people who have more skill and education?

The answer seems to be politics—for sure, it’s not about labor markets or company compensation plans because at no point do firms get together and discuss how they will pay their workforces.

That takes us to Disney. They’ve paid the $1,000 bonus to nonunion employees.

But they are not paying this to union-represented workers on Disney properties. Those 38,000 employees were in wage negotiations before the tax bill was passed and companies began to hand out these politically-motivated bonuses. What the company apparently wants is some give-backs for the bonus—and likely, to send a signal to the 38,000 employees that the union is their real problem. Good luck with that Mickey Mouse idea—even Goofy would see through that sham approach to pay raises.  

Trump Rule Speeds-Up Hog Killing: Danger to Workers and Consumers

On a visit to a beef slaughterhouse in December, I was told by workers they feared that the Trump administration would speed up allowable “chain speeds” for slaughterhouses.

Under USDA and Department of Labor rules, the chain speed for moving dead steers is 400 per hour; hogs are 600 per hour.

Now, the Trump administration is raising chain speeds in hog plants.

Speed limits are in effect to protect workers from injuries. Workers are especially prone to slicing injuries because they work in a cold room, and cut carcasses that have globs of fat that are slippery in that setting.

The new chain speed for hogs will rise to 1,106 per hour—a feverish pace.

This will impact consumers, too. There are meat inspectors at every plant. They cannot keep up with that blistering speed.

The workers I met—about half from Mexico, the other half from Nebraska and Iowa—were already looking into other jobs in December. They told me they won’t make as much money. But the unemployment rate in Sioux City, Iowa is 1.8%. They said they’d settle for a buck or two less per hour—from $15/hour—to save their fingers and protect their backs from rotating heavy carcasses at blinding speeds. Also, they predicted that meatpackers would have trouble maintaining a full workforce under oppressive chain-speed conditions.

Is President Trump’s “Hire American” Executive Order Racist (and Therefore Unconstitutional)?

What if President Trump literally said that his executive orders would allow more whites to enter the U.S. but not people of other races? Of course, that was the gist of his “shithole country” comment when he fulminated over a bipartisan agreement for immigration reform.  Haiti, the nation to which he referred, is 95% black.  Norway’s population, the better immigration alternative in his view, is 92% white.  A president’s constitutional powers over immigration are plenary; but does this legal doctrine mean that President Trump can favor whites over other races?

I pose this as my research question. More specifically, I ask whether the “Hire American” preference in Executive Order 13,788 is constitutional. 

I conclude that this order is a thin veil of race discrimination aimed at Asian Indians. For this reason, I believe it would not survive a court’s heightened scrutiny under the Fifth Amendment’s Due Process Clause.

Why do I think the order is a racial classification?

In a paper I’ll present next week at a conference at NYU Law School, I end by stating:

This order has broad ramifications for the American economy. 

Each year, Congress allows for 60,000 H-1B visas and 20,000 related "STEM" field visas.


The "Hire American" order seeks to choke that number down to only the best and most highly paid foreign workers. That's close to zero.

America’s IT workforce has 4.6 million jobs— ten times the size of the mining sector that President Trump seeks to protect,  and larger than the population of 25 states. 

Most of this large workforce employs U.S.-born workers. There are only 525,000 H-1B visa-holders, compared to 4.6 million IT workers.

Among U.S.-born workers, 85% are white but only 3% are Asian.

In the much smaller group of foreign-born IT workers, Asians make up 66% of that group, with Indians dominating all other Asian countries of origin, while whites comprise just 25%.

In short, the visa-jobs in this labor market are mostly held by Indians, but the regular jobs are mostly held by white Americans.

Executive Order 13,877 turns this fact-based reality on its head, and traffics in another Trumpian conspiracy theory— Indians are stealing lots of jobs from white Americans.

To deny that this orders is racial discrimination ignores the White House press conference announcing the order; disregards the Indians-hurt-Americans 60 Minutes program that inspired it; overlooks labor market data in recent Census Bureau and USCIS reports; denies first-hand accounts of America’s racially-stratified IT workplace, where Indians sit at the bottom of a corporate caste system; and whitewashes President Trump’s overt equivalence of skin color and country of origin to justify his racist immigration regulations. Like his travel bans, transgender ban, and DACA termination, his “Hire American” order is likely to be enjoined by a federal court. 

***

Whites Versus Indians:

Is the “Hire American” Preference in Executive Order 13,788 Constitutional?

 Michael H. LeRoy

Professor

School of Labor and Employment Relations, and College of Law

University of Illinois at Urbana-Champaign

e-mail: mhl@illinois.edu

 ***

New York University School of Law

NYU Journal of Law & Liberty Symposium

Freedom versus Fairness:

The Tension Between Free Market and Populist Ideals in Labor

February 27, 2018 

Stateless

With President Trump ending DACA, some portion of 2 million Dreamers could be stateless—that is, if places such as Mexico bar entry to them.

My mentor, Prof. Gene Gressman, was Special Counsel to the U.S. House of Representatives in a key 1983 Supreme Court case, I.N.S. v. Chadha.

A bit like today’s dreamers, Jagdish Rai Chadha was born in The British Empire's colony in Kenya to Indian parents. Chadha came to the U.S. as a university student in the late 1960s.

At the time of his birth, he was a UK citizen. He entered the U.S. on a British passport.

After Kenya's declaration of independence from Britain in 1963 he was not recognized as a legitimate citizen or resident of Kenya.

India did not recognize him as a citizen because he was born in Kenya.

Britain stripped all people born in Kenya of citizenship.

That left Chadha with no country—save, perhaps the U.S.

After his student visa expired, the U.S. moved to deport him. He appealed his order. The INS, under the president’s direction, relented. The House of Representatives was upset by this: Where, in the law, was he permitted to stay in the U.S.? It was a decision for Congress to make, not the president.

Why did Prof. Gressman argue that the stateless man should be removed? Isn’t that heartless?

Prof. Gressman had a profound mistrust of the presidency as that branch of government administers immigration law. He was a clerk on the Supreme Court when President Roosevelt issued an Executive Order to put 117,000 Japanese resident aliens and Japanese Americans in internment camps.

He wanted to make sure that Congress never loses its constitutional role in shaping and implementing immigration law.

Prof. Gressman—and the House of Representatives—lost that big case. Mr. Chadha stayed in the U.S. Prof. Gressman was thrilled for him. 
But the loss amounted a big win for presidential power to run our immigration laws without checks and balances.
Prof. Gressman rued the day that a future president would take immigration law into his own hand, without authority from Congress. Having watched Roosevelt enact a deeply racist immigration policy by fiat, he thought that day would come again. Checks and balances were essential to halt the march of racism and nativism—then and now.

Bankruptcy: The New Gun Control

      

Remington, an iconic gun maker, filed for bankruptcy on Monday. The Second Amendment cannot save the firm (it is reorganizing, not liquidating, due to $1 billion in debt it cannot pay).

The company has more than one business problem. They sold guns with defective triggers, and  settled a massive class action lawsuit filed by gun purchasers.

But Remington also makes the Bushmaster AR-15, the weapon of choice by mass killers. That gun was used in Florida this week.

Parents of slain children from Sandy Hook Elementary have a case pending against Remington before the Connecticut state supreme court. 

They are using tort law (think of negligence law) to go after the gun maker. 

Using a century-old common law rule— negligent entrustment— they are arguing that Remington should have foreseen that a psychopath would eventually buy their weapon of mass killing and turn it on—in this case—school children and teachers. The precedent they cite: A highly regarded opinion from Michigan in the 1800s holding a sling-shot maker liable for negligent entrustment of its eye-damaging weapon.

It’s not an easy proof at all—but the argument goes that unstable people, bent on revenge, will find a way to buy that gun. This is foreseeable.

Since the Connecticut case was argued just four months ago, we have had the Parkland, Florida massacre and the Sutherland Springs massacre. 

In the Texas shooting, lawyers have filed a lawsuit seeking $25 million in damages from the sporting goods store that sold a weapon to Devin Kelly.

The NRA has enacted a federal law—Congress enacted the law at the behest of the NRA— that limits liability for gun makers. But tort lawyers are finding creative ways around the law—ways that the NRA cannot stop. These lawyers are getting before juries and arguing that gun makers profit from killing and maiming police, children, teachers, and parents.

This approach will not end gun violence; but for now, a major gun maker is in deep financial trouble. Distributors are being targeted now by lawyers. It’s the closest thing America has to gun control. 

Trump’s Deposit Earns Interest: See Men Bargain

Stormy Daniels reportedly has a "Monica Lewinski dress" from her hook-up with Donald Trump in 2006. This was apparently the reason that Michael Cohen bargained to hush-up Ms. Daniels. Will Trump now enter into direct negotiations to keep Daniels quiet?

To see men bargain over keeping a stained dress out of sight, it’s time to pull out a copy of The Donald’s The Art of the Deal. Here are 5 key negotiating points. You can think about how Stormy might play these angles with Donald’s stain.

1. Think big

"I like thinking big. I always have. To me it's very simple: if you're going to be thinking anyway, you might as well think big."

2. Protect the downside and the upside will take care of itself

"I always go into the deal anticipating the worst. If you plan for the worst--if you can live with the worst--the good will always take care of itself."

3. Maximize the options

"I never get too attached to one deal or one approach...I keep a lot of balls in the air, because most deals fall out, no matter how promising they seem at first."

4. Know your market

"I like to think that I have that instinct. That's why I don't hire a lot of number-crunchers, and I don't trust fancy marketing surveys. I do my own surveys and draw my own conclusions."

5. Use your leverage

"The worst thing you can possibly do in a deal is seem desperate to make it. That makes the other guy smell blood, and then you're dead."

Trump’s Bloody Face: He Took His Sixth Beat Down by a Federal Court Today

In immigration law, courts almost always abstain from overruling a president’s immigration orders. The reason is that the executive branch—modeled after monarchs—is the embodiment of sovereignty. One person ultimately decides who enters, and who is removed: the president.

But starting in the 1970s, tiny fissures opened in this massive legal wall. Since then, it’s been very hard for lawyers to get a court even to review an alien’s deportation order. As courts put it, there is but a “crevice” of federal jurisdiction.

President Trump’s naked bigotry has led to six courts widening this “crevice” of review.

Today, in Eblal Zakzok v. Trump, the Fourth Circuit, in a 9-4 en banc ruling, upheld a lower court’s injunction of President Trump’s third travel ban.  Judge Gregory wrote: “Examining official statements from President Trump and other executive branch officials, along with the proclamation itself, we conclude that the proclamation is unconstitutionally tainted with animus toward Islam.”

This is not the Ninth Circuit, fabled for its liberal outlook. No. This court is located in the heart of the old-Confederacy, where liberalism has not taken root—in Richmond, Virginia.

Today, Trump is crowing that the end is nigh for the DACA program. He is dead-wrong. That program is being held open by a nationwide injunction. An interesting word on that case: The court’s order technically applies to Secretary of Department Homeland Security, Kirstjen M. Nielsen. The point is that the court has thought ahead to likely noncompliance with its order. It cannot enforce an injunction against a sitting president—but if Nielsen and her ICE police force violate the injunction, they’ll be subject to contempt and jail—just like Sheriff Joe Arpaio. Being about 40 years younger than Arpaio, she might not want to be a sacrificial lamb quite like Arpaio, who, by the way, has a felony conviction record notwithstanding his pardon.

A Luv Story

Until the early 1980s, airlines would only hire women—young, trim, attractive women—to be “stewardesses.” Southwest Airlines—the LUV airline—went a step further.

After some market research, the newly launched airline—at that time flying only in Texas between Dallas (Love Field), San Antonio, and Houston— found that their main customers were businessmen.  To make flying more fun for the guys, they sexualized their human resources—ahem, stewardesses. 

The young women dressed in hot pants and served “LUV bites” during the flights. Borrowing from Woody Allen’s 1973 movie, Sleeper—a weird take on the year 2073— the company installed the nation’s first ticket kiosks based on Allen’s orgasmatron (this was a self-service sexual pleasure machine in which individuals entered, experienced solitary pleasure, and emerged in a state of total bliss).

Customers loved the approach. Flight attendants didn’t complain. New routes were added quickly. The jets were painted with hearts. The airline launched a “Love Is in the Air” campaign. With each new heart beat, the LUV airline grew as a low-cost carrier that offered teasingly sexualized service plus a real feeling of warmth and happiness.

Then Gregory Wilson and a group of men sued the airline, claiming that its employment practices discriminated on the basis of sex. The airline countered with a strong Title VII defense—gender is a “bona fide occupational qualification.” That’s right—the only person who can be a stewardess is a woman, under 30, slender, … well, you get it.

The court rejected the defense; Southwest lost the case; and its hot pants uniform came crashing down.

But Southwest didn’t overact. They redefined love when they hired men, and renamed the position flight attendant. They took a more mature approach to romance—one that emphasized light-heartedness, warmth, humor, and good-natured kidding with passengers.

It’s one of the only lawsuits I’ve seen an employer lose where the firm used the loss to redefine a good idea and make it much better.

The love in my life pointed out another LUV story today. Click on the link for a current story of how Southwest keeps on LUVin.’ https://www.cbsnews.com/news/office-romance-love-is-still-in-the-air/

(I took this photo in January at the recently renovated Love Field Airport in Dallas. Click to enlarge.)

Justice for a Murdered Transgender Native American?

While Americans were celebrating the Fourth of July in 2009, someone in Albuquerque accosted a transgender Native American. Cato “Terri” Benally was beaten to death. She was found in a park with severe head injuries. Police have believed, based on specific evidence, that Benally was the victim of a hate crime.

A year ago, police arrested this man (photo credit, APD). On Monday, a grand jury indicted Roger Paul Preston on charges of first-degree murder with a hate crimes enhancement. Preston faces a trial.

Did Catholic School Discriminate Against Concussed Teacher?

That is the question facing a federal appeals court in California.

Michelle Baker was hired on a one year contract to teach in a Catholic school.

As the school year began, Baker fell in the stairwell at school, and struck her head on the concrete. She was unable to get up for ten minutes. She was diagnosed with a concussion. She received an anti-nausea medication and stayed out of work for ten days. 
She provided her principal with updated medical information in conjunction with asking for leave time.

Two weeks later, Baker was cleared to return to work. During this time—and after she was let go from her job—she suffered from double vision, blurred vision, memory issues, hearing issues, dizziness, and nightmares.

Baker claims she was competent, nonetheless, to perform her job duties. 

At no time did a medical provider inform her that she could not perform her duties as a teacher.

The crux of the issue is the reason the school did not renew her contract. 

At that time, her principal said that Baker did not not begin class with a prayer as required, incorrectly solved a math problem on the board and failed to correct the answer when a student pointed out the problem, and did not manage her class well.

She alleged that the reason she was let go was her disability.

Baker says that the reasons given were “pretext”—a sham for the actual reason that the school did not want to try to accommodate her occasional absences to get follow-up medical help, nor her small mental slip-ups.

The trial court dismissed her complaint. The judge reasoned that she was permitted to finish the year, and the notice of non-renewal came much later that term. Thus, there was no proof of disability discrimination.

The appeals court will take up the legal issue of whether the trial court failed to apply an expanded definition of disability under 2008 amendments to the ADA.

What Worries China but Not the U.S.?

It’s not North Korea. Both nations fret over this. It’s worker unrest.

I had a lengthy talk on Friday with a Ph.D./Law student from China. Her country is very worried about worker unrest. They are experimenting with official types of employment mediation. That’s why she is here to study.

China has a state-approved labor union. It’s for show. It’s also powerless.

When China was under the fist of Chairman Mao, inequality of wealth wasn’t a problem. Almost everyone was poor and hungry or starving. Now China is wealthy, but its wealth is very concentrated in large cities and among elites.

China isn’t waiting for regular workers who are scraping by to explode in angry street demonstrations. Nor is China eager to copy the American system of free labor unions—free, meaning that labor unions are independent of government control. They are trying to use this state union to funnel complaints into a mediation system where one-off solutions can be discussed and acted on.

As if she was being monitored, my student leaned in closely. Almost in a whisper, she said: “I do not think this approach can work because it has so much censorship.”

I leaned in and quietly said: “I worry about the decline of labor union rights in America. Today, unions don’t speak for angry workers. A power-hungry billionaire speaks for them. Someday he’ll be gone. Who will speak for them? Not unions, because they’ll be legally watered down, not far off from the one-union system in China.”

Remembering February 11, 1945: Liberation Day

Warsaw is the nearest major city to Bunzlau, the Nazi concentration camp that held my father and his two brothers. The average daytime high is 24 degrees (F). The low is 12 degrees. The Jews at this camp were poorly dressed for this misery.

You might wonder why I am showing a photo of an American Nazi-party member who is the sole Republican candidate for a congressional primary in a month. Simple. My Dad thought Nazis would never go away. The hate-filled man in this picture proves my Dad’s point.

The next three photos are for my children and their children. You can look at it, too. It names the fathers, mothers, aunts, uncles and children in our Hungarian family who died, mostly at the hands of Nazis, but also on the Russian front.

In the days leading up to February 11, 1945, my Dad could hear the Allied artillery pounding away from the west and the Russian cannons booming in the east. It must have been exhilarating to know that freedom was days away. The Nazis knew it, too. They increased food rations and got clothes for their prisoners. Sounds like a PR trick that would be tried today by callous leaders who lie and distort to justify their bigotry.

In the end, the truth comes out.

***

The Family of Otto Lefkovits (Robert O. LeRoy)

Test Case: Two Workers Killed. Now, Their Employer to Pay $2 Million Fine

A California court made an unusual ruling this week. But first, this picture. It was taken outside a Hamlet, North Carolina chicken processing plant in 1991. The company used deep fry industrial vats to process chickens. It tripled the pressure in a hose to the vat to accelerate the cooking process. An explosion occurred. Next, the plant caught fire.

It gets worse, much worse. The company locked all the doors in the production area to keep workers from taking unscheduled cigarette breaks. Twenty-five workers died in the blaze. Many could be heard in their final moments pounding on the doors—the doors that the company padlocked.

The owner received a 20 year prison term. The company faced a criminal fine, too. That part is unusual—and takes us to California for a ruling last week.

Solus Industrial Innovations makes plastic parts. Their manufacturing process requires boiling water. To save some money, the company used a water heater for homes. They didn’t want to pay for a water heater built and rated for industrial uses.

The water heater, once overworked, exploded. Two workers were killed.

OSHA investigated. They fined the company $100,000—the maximum under law (which has weak remedies for extreme cases such as this).

San Diego prosecutors did something novel. They sought a fine of $ 1 million for each employee killed. To be clear, they brought this action not to recover for the estates of the two workers.

It gets more interesting. Prosecutors claimed that the fine was allowable under California’s Unfair Business Code. Their point: Unless Solus paid a heavy price for cutting this safety corner, the rest of the plastics parts industry would be undercut by this lowball competitor.

In a unanimous ruling this week, California’s top court allowed prosecutors' action for this deadly workplace accident. The company’s argument— that federal safety law was the only law that could be used to sanction Solus— was rejected in the ruling.

Should Employers Fire Workers for Buprenorphine (Drug for Relieving Opioid Dependency)?

My blog on post-injury drug testing has generated a lively discussion. The consensus view is that this form of drug testing is justified. 

I disagree (as do many but not all courts); but we are moving on to a more specific question.

Should employers fire workers for testing positive for buprenorphine? 
This topic came up in the final year of the Obama administration. OSHA issued a regulation that prohibited blanket, post-injury drug-testing. Instead, it said that employers need what amounted to reasonable cause to drug test after an injury. That rule is not being enforced; and the Trump administration will likely pull it back officially.

Anyway, employers often use a 10-panel screen (there are smaller and larger panels).

Buprenorphine is a common drug test in small and large panels. Basically, it picks out opiate abusers.

But here is the catch: (1) Buprenorphine is prescribed, and not a street drug, and (2) Buprenorphine is used in medication-assisted treatment to help people reduce or quit their use of heroin or other opiates, such as pain relievers like morphine.

Presumably, if an employee tests positive for Buprenorphine, they will be fired. Otherwise, why use the test?

But should an employee be fired because he or she sought professional medical help to be treated for addiction? 
If you need more information, consider the FDA recognized side effects: "Common side effects of SUBOXONE Film include nausea, vomiting, drug withdrawal syndrome, headache, sweating, numb mouth, constipation, painful tongue, redness of the mouth, intoxication (feeling lightheaded or drunk), disturbance in attention, irregular heartbeat, decrease in sleep, blurred vision, back pain, fainting, dizziness, and sleepiness."

Can Walmart Fire Workers Who Refuse a Drug Test After Getting Hurt at Work?

That’s the question posed by a large class action lawsuit. 

Kris Kenny was employed by Walmart. He helped an elderly customer by lifting a heavy item from the shopping cart to the customer’s car. He re-injured his back.

Under Walmart’s rules, he was required to get a drug test within 24 hours or be fired. He refused to be tested. He was then fired.

He (and others) have sued Walmart, claiming that the drug-testing policy violated workers’ privacy rights under the California Constitution. He also argued that firing workers based on not complying with that allegedly unlawful policy violates California law.

Teaching Point: Why do employers have drug-testing rules like this? A good reason is that some workplace injuries are linked to drug use and abuse. Employers shouldn’t have to pay expensive worker comp claims, including treatment, for these people. 

But Walmart’s rule covers every workplace injury. This is terrible for several reasons. 

First, it deters reporting of workplace injuries, even for people who do not abuse drugs. 

Second, it allows Walmart to administer a broad testing policy. Not only can they test for illicit drugs; they can test for prescribed medications, such as barbiturates that help epileptics control their seizures. Unless Walmart has a specific business justification for testing for your prescribed medications, this is unlawful under the ADA (but hard to enforce in behalf of workers). 
Third, they use this type of test in a growing number of Republican-controlled states, where “fault” is now part of workers comp. In other words, if you work for Walmart in a state such as Oklahoma (where there is a fault element), and you help an older customer with a heavy item, Walmart is off the hook for your back injury. You, the little guy, are entirely on your own.

Fighting Illini Doughboys?

My law class simulated a version of the Chief Illiniwek dispute in a mock negotiation. 
A fictional group, Native Americans for Justice, protested the University of Illinois’s use of the name “Fighting Illini.” I have run the simulation since 2002.

Something new happened today. The Native American group did a deep dive into the history of the name “Fighting Illini.” They found that the term was coined before Memorial Stadium was even built. The name applied to the hundreds of men—University of Illinois students— who fought in World War I. The name grew in circulation when the university built a stadium to honors fallen UI soldiers. Only later—in about 1926— was the name Fighting Illini linked to the first Chief Illiniwek. 

Generations later, many people think of Fighting Illini as a reference to a long-forgotten tribe. Historically speaking, this paves over the origins of Fighting Illini.

So, this group of law students proposed that U of I adopt the Doughboys as a new mascot. They made the political argument that Chief supporters, who are generally patriotic and pro-military, would have difficulty arguing that this symbol was not part of American heritage. They argued, too, that it made good sense to have a mascot that embodies the idea behind the name of Memorial Stadium.

The Native American team and UIUC administration team could not agree to this concept. The administration team contended that whether or not the history lesson is accurate, this does not reflect the current and longstanding view of “Fighting Illini”— at least not in the minds of already disappointed Chief supporters. The administration thought that the new name would simply stir the pot, not calm the waters. (The Army had a unique role in killing and forcibly removing Native Americans, so the administration team thought this could revive that history.)

My question for you is: What do you think? Share your views on FB or at mhl@illinois.edu. All ideas are welcome.

Photo Credit: The logo was posted by DomIllini on the Illini Loyalty Fan Board on May 3, 2016. The image is copyrighted by Chad Garland.

Is an Executive Order that Creates White Racial Preference Constitutional?

What if President Trump literally stated that as a matter of immigration policy, his executive orders would allow more whites but not people of other races? Of course, that was the gist of his “shithole country” comment. Haiti is 95% black.  Norway’s population is more than 92% white.

His constitutional powers are plenary (unquestionable; absolute); but could he use this power constitutionally to favor whites over other races? I pose that question in my research article, Whites Versus Indians: Is the “Hire American” Preference in Executive Order 13788 Constitutional?

To answer that question, I explore President Trump’s “Buy American and Hire American” edict in Executive Order 13788. The order (see the U.S. official logo, above) states that the current immigration laws for H-1B visas (high tech workers) will be subject to “rigorous enforcement.” That’s the workplace version of extreme vetting. I believe it means that Indian workers will be targeted for special enforcement; and if their paperwork isn't on them or has a problem, they'll be detained and sent back to India (without trying to fix the problem here).

I have assembled some data tables to answer this research question.
The first table shows that half the H-1B workers come from India.

The second table shows that 62% of H-1B workers come from Asia:

The third table shows that if Asians are taken out of the U.S. science and engineering workforce, the high tech industry would be 90% white. The Asian category includes many Asians who were born in the U.S., or are naturalized citizens, or green card holders. But it’s also true that H-1B workers make up a significant (but unknown) percentage of the Asian-worker category. My point? If the administration deports large numbers of H-1B workers as the order implies, the workforce in Silicon Valley and similar will be something like 80-85% white. That's what "Hire Americans" means in the order.

Returning to my question— is an executive order that creates white racial preference constitutional?—the answer is that we have never had this exact court case. I’ll offer this assessment. Most judges and Supreme Court Justices have decided these types of questions on grounds of the president’s plenary powers. That’s where I think most courts, including the Supreme Court, would land. But if that is true, it also means that our Constitution allows a president unchecked power to impose racist immigration rules.

Is There Too Much Legal Immigration? Yes and No

I’m pro-immigration; but in my research on a specific legal immigration program, I am finding evidence that supports immigration restrictions. I’ll briefly present information from a “restrict immigration” and “maintain immigration” perspective. If you don’t learn anything new, I have failed here.

The H-1B program applies to “specialty occupations,” namely computer programming, engineering, and accounting. Think of Silicon Valley (and your local version of a high tech cluster). Employers say that cannot find enough qualified Americans. Opponents say the program is used to substitute cheap foreign labor for American jobs.

Let’s say you want to hire an H-1B worker. You need to advertise the job locally. If you cannot fill it, you need to put an application together. In it, you must promise to pay the H-1B worker a prevailing wage rate that is measured by state or federal government agencies. You can’t fudge numbers.

Even if you go through this process (it costs about $20,000 in lawyer fees per application), there is an annual limit of 65,000 (plus 20,000 international students in the U.S. who can be hired for up to 24 months). Often, the quota is filled in a week; many applications rejected (wasting money spent on attorney's fees).

Okay, now let’s think about some new information.

Restrictions Perspective: Those low quota numbers are really misleading. According to federal government data, this group totaled 494,565 in 2011; 473,015 in 2012; 474,355 in 2013; 511,773 in 2014; and 537,450 in 2015. This is because an H-1B worker can remain in the U.S. for up to six years—and then, when the legal limit is reached, they can apply for an extension as they work toward getting a green card (a very slow and cumbersome process). 
Two good arguments from this points of view? First, this program is “temporary” in the law, but permanent in reality. Few H-1B workers ever return to India, China, and so forth. Second, even in the past six years, these high numbers have gone up by 10%.

Maintain Perspective: These workers add immense value to the American economy. A study by Giovanni Peri, Kevin Shih, & Chad Sparber, STEM Workers, H-1B Visas, and Productivity in US Cities, 33 J. of Labor Econ. 225 (2015), finds that for every one-percentage point increase in the foreign STEM share of a city’s total employment [that is a proxy for H-1B jobs], wages grew by 7-8 percentage points for college-educated Americans, and 3-4 percentage points for non-college educated natives. Want more practical evidence? Look at the 20-year boom in the San Jose-San Francisco area, where wages are shooting up, as are rents, real estate values and economic output. So, if you are bothered by the 10% growth in these workers, ask yourself: Have tech industries grown by only 10% since 2011, or have they grown exponentially? Why is 10% growth in H-1B visa holders a problem if these workers are expanding the pie of progress?

I will write later on President Trump’s Executive Order 13788, which will sharply decrease this program. 

Slurred Speech: How the NLRB Tolerates Racism

A company supervisor, trying to dissuade employees from voting for a union said, “Don’t you know if you all get the union up here you’ll be sitting up here by niggers?” Unions also play the race card in vulgar ways. Trying to drum up votes, a union representative falsely told workers that a manager referred to them as a “bunch of niggers.” Both times the race card was used, it worked: In the first case, a union was defeated; in the second case, a union was elected.

My research article, “Slurred Speech: How the NLRB Tolerates Racism,” shows how the nation’s labor board is too lenient with racial slurs used in the context of elections for unions and also strikes. Columbia Journal of Race and Law will publish this research later this year.

For example, the NLRB ordered a company to reinstate—with backpay— a striking employee who intimidated a replacement worker by extending both middle fingers while screaming “fuck you, nigger.”

This has to stop. Title VII—the nation’s employment discrimination law— makes employers liable for tolerating these racial slurs.

In effect, employers have to make an awful choice: face penalties from the NLRB, or from the EEOC. I argue that the NLRB should use the EEOC’s standard for racial harassment.

My research also presents evidence showing how expensive liability is for employers when they tolerate racial slurs.

Chart 5 EEOC Settlements & Court Judgments, 2009-2017 (Ranked by Expense to Employers)

$14,500,000 Settlement (Patterson-UTI Drilling, 4/20/2015): Minority Employees Subjected to Racial & Ethnic Slurs & Jokes, & Fired for Complaining $11,000,000 Decree (YRC/Yellow Transportation, 6/29/2012): Black Employees Subjected to Nooses, Racist Graffiti and Epithets, Harsher Discipline, & Tougher Work Assignments $8,900,000 Settlement (Albertsons, 12/15/2009): Employees Subjected to Swastikas, Lynching Drawings, Epithets, White Supremacist, and Anti-Immigrant Comments $4,000,000 Settlement (Hillshire Bros. Co., 12/22/2015) Blacks Subjected to Racist Comments/Graffiti $2,750,000 Settlement  (WRS Compass, 8/27/2012) Black Workers Harassed with Nooses & Slurs, Plus Harassment of White Workers Who Associated with Blacks $2,000,000 Consent Decree (Blockbuster Inc., 12/14/2011) Hostile Environment for Female and Hispanic Workers, Including Racial Remarks $1,200,000 Settlement (Well Servicing Companies, 12/2/2004): Minorities Verbally Abused and Punished $1,073,261 Damages (Whirlpool, 4/1/2011) Verbal/Physical Attack Due to Race and Gender $1,000,000 Settlement (Elmer W. Davis, Inc., 8/10/2010) Black Employees Called “n----r,” “lazy n-----rs,” “sambo,” “slave,” “monkey”; Exposed to Nooses & Swastikas $650,000 Settlement (Race, LLC/Studsvik, 12/31/2009) Targeting Black Workers for Higher Radiation Exposure, and Subjecting Them to Racial Slurs $630,000 Settlement (Scully Distribution, 8/27/2012) Drivers Subjected to Racial Slurs $600,000 Settlement (Mercury Air Centers, 8/9/2010) Filipino and Hispanics Barraged with Slurs $500,000 Settlement (RockTenn Services, 12/3/2012) Employees Subjected to Racist Graffiti, Noose, and Employer Ignoring of Complaints $400,000 Settlement (Big Lots, 2/16/2010) Black Employees Subjected to Racial Jokes $250,000 Settlement (Swissport Fueling, 12/2/2014) Employees Repeatedly Called “Monkeys” $243,000 Judgment (A.C. Widenhouse, 3/8/2013) Blacks Face Racial Slurs and Nooses, Retaliation $228,000 Settlement (Titan Waste Services, 3/14/2014) Black Employee Subjected to “N-word,” Discharged $180,000 Settlement (Emmert Int’l, 1/7/2013) Employee Subjected to Regular Use of “N-Word,” Racial Jokes and Retaliation for Complaining $150,000 Settlement (Torqued-Up Energy, 5/28/2013) Employee Fired for Reporting Racial Slurs $122,500 Settlement (Pace Services, L.P., 4/22/2010) Muslim, Black and Hispanic Employees Repeatedly called “Terrorist,” “Taliban,” “Osama,” “Al-Qaeda,” “n----s,” & “f-----g Mexicans” $120,000 Settlement (Downhole Technology, 4/26/2017) Black Employee Fired for Complaining that Co-Worker Wore KKK Hood $118,000 Settlement  (Professional Building Systems of N.C., 4/8/2010) Black Employees Subjected to “n-word,” Nooses, and Racially Offensive Pictures $150,000 Settlement (Affordable Care, Inc., 6/2/2010) Harasser Said He Had KKK Relative $100,000 Settlement (McGriff Industries, Inc., 7/1/2010) Black and White Employees Routinely Subjected to Racially Derogatory Comments, Slurs, and Insults Directed at or About African-Americans $87,205 Settlement (Mike Enyart & Sons, 10/6/2010) Black Employee Fired After Complaining About Racial Epithets and Swastika $80,000 Settlement (Mel-K Mgt. Co., 8/28/2015) Blacks Subjected to “n----r”, “ho” & “black b----h” $50,000 Settlement (OnSite Solutions, LLC, 11/2/2016 Manager Used Code Language (“Sprinkle a Little Salt”) to Fire Blacks and Replace with Whites