Trump Steals the Jury

The jury is a basic feature of American democracy. The idea for a jury is to apply community values in the context of the law.

Our American jury descended from the mid-12th century. Juries were set at 6 or 12 men who were considered to have good character.

In 1730, a British law expanded the qualifications for the jury. Even then, people wanted to get out of this essential public service. The sheriff was given the task of impaneling juries, and the pool was increased to include not only people of wealth but a broader group.

The jury gave the English monarchy and courts legitimacy. Jurors served as a check against tyranny.

Rod Blagocevich was convicted twice by juries in Illinois on corruption charges, including lying to the FBI during its criminal probe.

In classic Trumpian distortion, the president today misrepresented his sentence, labeling it 18 years (it is 14 years). But that lie is small potatoes. The judge who sentenced Blagocevich acted on the juries' processing of evidence (they found Balgocevich guilty on more than 20 corruption related charges). Without the juries' findings of guilt, no sentence could be imposed.

Overriding the judgment of a jury should give everyone, regardless of party or ideology or cable TV preference, real pause. 

Donald Trump is attacking a vital check on government authority that has been part of our legal tradition for nearly 1,000 years.

What Are Roseanne Barr’s Speech Rights?

Roseanne’s controversial tweet (above) offers a lesson in speech rights at work. I’ll spare my own views on her tweet and focus on her rights, and those of her former employer, ABC.

First, people in private workplaces do not have a First Amendment right, though they often think so. The First Amendment states: “Congress shall make no law 

. . .  abridging the freedom of speech, or of the press.” ABC is not the U.S. Congress; nor is it a different government entity (e.g., state), where First Amendment rights apply.

From there, it gets complicated.

Roseanne was filmed in Los Angeles. California has very broad speech rights for private workplaces. California law bans private employers from discriminating against workers due to their political views (called viewpoint discrimination). But the law has exceptions. If a person participates in a political activity that creates a conflict of interest with an employer's business, the employee is not protected. Roseanne’s tweet was political; ABC said it was repugnant; and the law seems to be on the studio’s side.

New York might be the relevant venue. That’s where ABC is headquartered. At first glance, it does not have broader rights for employees than California.
Often, employers designate their headquarter-state as the place to bring a lawsuit.

But there is more. Roseanne had a contract, likely with a morals clause. This is common in many entertainer contracts. Roseanne wants a simple clause, such as this:

“Performer shall not, either while rendering such services to the producer or in his private life, be charged with or convicted of an offense [involving moral turpitude] under federal, state or local laws or ordinances.” 

She broke no law, so if her contract has this language, she likely has a valid contract claim.

But she might have this clause:

“If at any time while Artist is rendering or obligated to render on-camera services for the program hereunder, Artist is involved in any situation or occurrence which subjects Artist to public scandal, disrepute, widespread contempt, public ridicule, [or which is widely deemed by members of the general public, to embarrass, offend, insult or denigrate individuals or groups,] or that will tend to shock, insult or offend the community or public morals or decency or prejudice the Producer in general, then Producer shall have the right, in its sole discretion, to take any action it deems appropriate, including but not limited to terminating the production of the program.” 

ABC would not be in violation of that contract clause.

There is more, including whether she agreed to arbitrate any dispute with her employer (she likely did).

But here’s good legal advice: If you work for a private employer, and you disparage your employer publicly or harm its reputation, you will probably lose a lawsuit to get your job back.

Reagan, Bush I Kept Immigrant Families Together. Trump Separates Children from Parents

In 1986, Congress passed a major immigration law that gave amnesty to about three million people who entered the U.S. unlawfully. But children were excluded. This gave rise to a problem known as “split families.” A dad or mom could legalize his or her presence; children could not. They faced deportation.

On October 7, 1987, a Republican senator, Sen. John Chafee (R-RI), tried to fix this. He offered an amendment to an unrelated bill that would give children excluded from the 1986 law a path to legalization. The Senate defeated the amendment by a 55-45 vote.

Enter President Reagan, who fixed the children part. On October 21, 1987 Reagan’s INS Commissioner, Alan C. Nelson, announced INS’ (now called ICE) “Family Fairness” executive action. It was not an executive order. All presidents have “plenary powers” over immigration, meaning they control the gate into and out of the U.S. This was a gate-keeping action.

The INS’ memo explained the “clear” Congressional intent in 1986 to exclude family members from the legalization program. Nevertheless, the INS said it would defer deportation for children living in a two-parent household with both parents legalizing, or living with a single parent who was legalizing. 

Interesting to note, that was similar to President Obama’s DACA program—DACA standing for Deferred Action for Childhood Arrivals. It means that DACA recipients remain deportable, but the executive branch is essentially putting them at the back of the long deportation line, behind criminals and others.

President Bush also strengthened family unification started by President Reagan. His INS Commissioner Gene McNary, issued a memorandum, "Family Fairness: Guidelines for Voluntary Departure under for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990)." 

That memo was in effect for 28 years until President Trump’s ICE recently embarked on a policy of family separation. Again, it’s allowable under a president’s plenary powers. But it is cruel.

PHOTO CREDIT: Downstream.com

Company Lies to Pregnant Trainee, Say's No Job Is Open. She Doesn’t Apply. Is This Discrimination?

Yes, according to a California state appeals court.

Ava Abed worked as an unpaid extern at Western Dental's Napa office in 2015 to fulfill a requirement of her dental assistant program at Carrington College. She took X-rays and sterilized instruments. She never told anyone that she was pregnant. Word got out, however, after a supervisor saw prenatal vitamins in her purse.

Later, she asked about a job opening at the Napa office. 
The same supervisor said there was nothing available. 
Relying on this information, she looked no further.

But this was an apparent lie. The company had posted a notice for a job at the office on its website.

The trial court dismissed Abed’s case reasoning that unless she applied, there could be no discrimination.

A three judge panel unanimously reversed this ruling last week. Justice Jim Humes wrote, “Employers who lie about the existence of open positions are not immune from liability under the FEHA (state’s employment discrimination law) simply because they are effective in keeping protected persons from applying.”

The case is Abed v. Western Dental Services, California Court of Appeal, First Appellate District, No. A150933.

More MAGA Layoffs for Union Workers

A signature moment in President Trump’s new presidency was his salvaging of union jobs at the Carrier plant in Indy.

Last Monday, Carrier Corp. announced new layoffs. This brings their layoff count for 2018 to 632 jobs. About 300 of those jobs will be outsourced to Mexico.
This past week, Harley-Davidson announced that it is closing its manufacturing plant in Kansas City. “We did everything Harley-Davidson asked us to do,” welder Tim Primeaux said in an NBC News interview that aired Wednesday. Primeaux said he and other workers were in a state of "shock and awe."

President Trump had several photo-ops with executives and workers at Harley-Davidson in February 2017. 

"A lot of countries are taking advantage of us," Trump said during a press briefing with the executives and union members.

At the same shareholder meeting this past week, Harley announced a stock buyback plan for $696 million. The source of their money? The cut in corporate taxes from 35 percent to 21 percent.

Harley is opening a manufacturing plant in Thailand in late 2018.

Adding to this, two large coal burning plants near Maysville, Kentucky will be closing permanently (announced over the weekend). Jobs at the plants had a total payroll of $60 million.

This happened all the time under the Obama administration—and preceding presidents. 
The main difference today is a president who promises to negotiate with corporate heads to save jobs. No company can promise to keep jobs indefinitely.
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Polling data from 2016 show that 41 percent of union members voted for Trump. Whether they will vote their pocketbook or prioritize other issues such as guns and immigration is anyone’s guess. But their America is not becoming great again.

Special thanks to the veterans and active service members who are reading this. You have made America great.

PHOTO CREDIT: Occupy Democrats

Memorial Day and Patriotism: A Navy Vet Ready to Kneel at NFL Games

Regarding the NFL’s national anthem controversy, a common view among our veterans is that they served our country so that Americans have a right to protest. I appreciate their service and viewpoint. In yesterday’s New York Times, a veteran went further in support of dissent. For Memorial Day, I share Mr. MacKenzie’s brief letter.

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If commercial football continues to insist that it knows the only way to respect flag, anthem and country, I would see nothing wrong with taking a knee myself in the stands when they play the anthem or fly warplanes over the field. It would cost me nothing — nothing close to the financial risks of some conscientious athletes.

I love my country and its songs and flag. I am a Navy veteran whose brother died flying in World War II. So I am secure in my own patriotism, unwilling to be instructed about it by a draft-dodging president or his kowtowing sports flag-wavers.

JOHN P. MACKENZIE

LONG ISLAND CITY, QUEENS

“Maybe You Shouldn’t Be in the Country”: Precedent for Kicking Out Americans

President Trump joined a hate-filled union leader from the 1880s when he said, with respect to NFL players who remain in the locker room during the national anthem, “maybe you shouldn’t be in the country.” 

Here is what Dennis Kearny, an anti-immigrant labor leader from California, said in 1879: “Before you and the world we declare that the Chinaman must leave our shores.”

Kearny’s statement went beyond immigration. It also applied to boys and girls born on U.S. soil to lawfully admitted residents who emigrated from China.

Wong Kim Ark was born in San Francisco in 1868. His father (Wong Si Ping) and mother (Wee Lee) were immigrants from China. They weren’t U.S. citizens. The 1882 Chinese Exclusion Act made them ineligible for citizenship.

Meanwhile, Wong Kim Ark worked in San Francisco as a cook. He visited China in 1890, likely to find a suitable bride (as was customary).

When he returned, he was denied re-entry. A revised and more restrictive version of the Chinese Exclusion Act made native-born descendants of Chinese subjects ineligible to enter the U.S.

This gave rise to a landmark case involving the Constitution’s Citizenship Clause. The Supreme Court, in U.S. v. Wong Kim Ark, ruled that the guarantee of birthright citizenship “applies to children of foreigners present on American soil.”

President Trump has taken the issue beyond kneeling for the national anthem. 

Even in one of America’s worst moments— the unconscionable internment of Japanese-American citizens— no person was removed from our country.
It's this simple: No one born on U.S. soil can be removed or excluded from this country-- whether they are Nazis, Socialists, Trump or Bernie supporters, liberals, conservatives ... or NFL players who protest during a game.
We are all Americans.

Today, President Trump challenged our fidelity to the constitution's Citizenship Clause, a core tenet of our United States of America. 

Automating Female Labor: The Vegas Labor Dispute

Why is Alexa, the Google-enabled home assistant, female? It might be because we associate “home work” and personal assistance with women.

This type of technology is at the heart of a labor dispute that is boiling over on the Vegas strip between 40 casinos and unions who represent hotel housekeepers, food servers, wait staff, bartenders and the like. Many of these jobs, coincidentally, are female-dominated.

The Jetsons, a satirical cartoon series from the 1960s, fully envisioned this with Rosie, the household robot. Rosie did housework, some parenting, and even handed out pills to the Jetson family. By the way, she was female.

We are ever closer to that reality (see "Dreamer" above, developed for wide-purpose work at the University of Texas lab on humanoid robotics). 
Wait staff can be replaced with kiosks and tablets at our restaurant tables. Vacuum cleaners were automated some time ago. The front desk staff can be cut in half or more with check-in procedures that give you a computer code to your pre-paid room. In effect, the technology that allowed us to check ourselves out at a grocery store can be modified for service in Vegas and elsewhere.

Geoconda Argüello-Kline is the Secretary-Treasurer for the Culinary Union. She says, “A strike is a last resort. We support innovations that improve jobs, but we oppose automation when it only destroys jobs. Our industry must innovate without losing the human touch.”

What about male labor—can it be automated? It’s already happening. Welders are overwhelming male. Industrial welders are a vanishing breed, replaced by ever more sophisticated robots in factories.

Oh my gosh, I better get back to work! This robotic professor, called Prof. Einstein, is pushing for my job! He's smarter than me (having a "vast intellect"), and is programmed with funny anecdotes and exaggerated expressions. Plus, he is much cheaper than me over the long haul. Some of today's teenagers might relate to a humanoid professor better than a human professor.
So, I'm hoping the unions win out in Vegas. They're fighting for themselves-- but the principle of preserving jobs touches on our lives. 

What If? NFL National Anthem Brain Teasers

You either agree or disagree with the NFL’s stand-for-the -anthem policy. I have an opinion, too.

But today, we are going to think about some different possibilities. Think about these … drop me a line on FB or at mhl@illinois.edu.

Brain Teaser #1: Player Shows Support for Confederacy. During the national anthem, a player takes off his helmet, while standing for the national anthem, and is wearing a bandanna with the Confederate flag. President Trump tweets approval; many players and fans express outrage. Should the NFL expand its “flag policy” to ban players from wearing the Confederate flag?

Brain Teaser #2: A wide receiver who scores many touchdowns puts a tatoo on his face showing the American flag being burned. After he scores touchdowns, he removes his helmet and points to his tatoo. President Trump tweets outrage and is joined by many of his supporters. Many other people stand up for the player’s right to bodily self-expression. The players’ union says the league cannot go so far as to ban tatoos because of their political content because the NFL already tolerates a high degree of tatoo shots on camera. Should the league take action against the flag-burning-tatoo player or not?

Brain Teaser #3: In protest of the NFL’s anthem policy, a majority of players declare the fourth Wednesday of every month during the season as a social justice day. They don’t show up for practice—but they do show up to serve as guards at public schools where shootings have occurred. The league fines the players and threatens to escalate discipline. Should the NFL tolerate these sporadic work stoppages or impose discipline?

Lawyers Will Fight Mandatory Arbitration on Other Grounds

Yesterday’s ProfLERoy post on mandatory arbitration received 400% more than the usual clicks. So here is a brief follow-up.

Lawyers who represent the “little guy” are not done attacking this unfair method of dealing with employees.

Michael Rubin of Altshuler Berzon in San Francisco, who represents plaintiffs, said yesterday: “Today's decision is not the end of legal challenges to unfair, one-sided arbitration agreements by any stretch.”

One line of attack? Some employers have run into legal trouble because of the way they rolled out new arbitration agreements. Most agreements are signed electronically, and companies must be able to prove that a particular employee actually reviewed and signed an agreement.

Also, arbitration agreements that are complicated, technical, and filled with jargon are being successfully attacked. Why? Because a waiver—a term that means giving up a legal right or entitlement— must be “knowing and voluntary.” Lawyers have lost the voluntary part due to five justices who are biased in favor of corporations (I admit to being biased in favor of regular individuals when it comes to their constitutional right to a jury trial in civil matters); but lawyers are now going after the “knowing” part.

Plus this: If there is a Blue Wave in 2018, look for Congress to pass a law that repeals the various Supreme Court decisions affirming the use of mandatory arbitration agreements (yes, President Trump could veto it). The point is that these rulings are not set in stone. So long as we have checks and balances, change is possible.

Supreme Court Backs Mandatory Arbitration Today— Again

Check your employee handbook—or your offer letter—or your employment contract, if you have one. Odds are that you waived your right to sue your employer.

Suppose your boss or co-worker gropes you. You must take it to arbitration, even though laws provide you a right to file a lawsuit in federal or state court. 
Suppose your employer fails to pay overtime and you’re an hourly employee. Take it to arbitration. The list goes on and on.

Some years ago, Merrill Lynch contacted me to arbitrate an employment dispute. They’d pay me $2,400 a day to hear the case— double the rate I charge to unions and employers. I asked about the other party. I was told the complainant is a female employee who was suing over sex discrimination and a court enforced her arbitration agreement. 
She had no say in my appointment, and she was not responsible for paying me. Merrill Lynch would take care of everything.
I declined the offer because I felt I was being bought, legally bought.

Today, in a 5-4 ruling, the Supreme Court overruled an NLRB decision that said that workers could legally band together in a lawsuit and resist mandatory arbitration. The NLRB ruling applied whether the employees were unionized or not.

There is hypocrisy is today’s majority opinion. These five justices are generally against government regulation, and justify their worldview by saying that individuals should have more personal freedom.

What the five justices don’t say in today’s opinion is that they’re all for big corporate power—and for avoidance of public courts—and for sweeping discrimination under many corporate rugs—and for maintaining the lock that large firms have over ordinary women and men—and for private justice systems where the stronger party gets to pick its judge, overpay that person, and call it a fair process.

Really, what’s the point of passing a law that benefits individuals if those individuals are required to waive their right to enforce the law in a court of law?

Today’s cases are Epic Systems Corp. v. Lewis, case number 16-285; Ernst & Young LLP et al. v. Stephen Morris et al., case number 16-300; NLRB v. Murphy Oil USA Inc., case number 16-307, in the Supreme Court of the United States.

PHOTO CREDIT: The Economist (U.K.)

Make America Grate: Reducing Legal Immigration Hurts Small Businesses

Grate (verb): 1. reduce (something, especially food) to small shreds by rubbing it on a grater. 2. make an unpleasant rasping sound.

The Trump administration is sharply limiting legal immigration. Some small business owners are speaking out about the damage this is causing.

The Lexington-Herald Leader reports on small businesses that are losing contracts due to a loss of guest-workers from Guatamala and other poor nations.

“Eddie Devine voted for President Donald Trump because he thought he would be good for American business. Now, he says, the Trump administration’s restrictions on seasonal foreign labor may put him out of business. ‘I feel like I’ve been tricked by the devil,’ said Devine, owner of Harrodsburg-based Devine Creations Landscaping. “I feel so stupid.” 
Devine says it has been years since he could find enough dependable, drug-free American workers for his $12-an-hour jobs mowing and tending landscapes for cemeteries, shopping centers and apartment complexes across Central Kentucky. Devine says he lost a $100,000 account because he didn’t have enough men to do the job. He’s worried he may be out of business next year if things don’t improve.

He isn’t alone. Cuts in H-2B visas are hurting small businesses across the country that can’t find Americans willing to do hard, manual labor: Maryland crab processors, Texas shrimp fishermen, and Kentucky landscapers and construction companies.

‘We live and die by these visas,’ said Ken Monin, owner of Monin Construction, which specializes in home additions, roofs, decks and garages. ‘Last year we about went bankrupt. The workers we were supposed to get in March didn’t show up until August because they couldn’t get visas.’

Monin applied for eight H-2B workers this year, but he isn’t optimistic he will get any. Employers seeking H-2B workers must prove they have advertised and tried unsuccessfully to hire local workers.”

PHOTO CREDIT: BIZARRO COMICS

Nursing Home Abuse: Trump Administration Blocks Lawsuits

Suppose that your loved one is confined to a nursing home. When you visit, you see probable signs of physical abuse. Or, as occurs in about 7% of abuse cases, your loved one credibly reports sexual assault.

For many years, a federal agency has collected data on nursing homes, including reports and investigations into abuse.

Until recently, lawyers who sued nursing homes for patient abuse could get this information at no cost.

No more. Even when information is requested via the Freedom of Information Act, the Trump administration is charging lawyers for the data and reports.

Ernest Tosh, a lawyer suing for patient abuse, was told by CMS (the federal agency) that it would charge almost $53,000 to fulfill a request for five years of “cost statements” filed by all U.S. nursing homes.

Jonathan Steele confirmed the new practice: “They took data that they’d produced in its entirety free of charge prior to the [2016] election, and then started charging a thousand dollars to search for the data, and then would send us a letter saying they’ve redacted portions of the data that made the data unusable for our purposes.”

On Friday, two prominent elder abuse law firms announced that they are suing the American Health Care Association, the main lobbying group for nursing homes. They seek records to show that the group has lobbied the administration for more restrictions on disclosure of nursing home records.

A main objective in the lawsuit is to see why so many nursing homes are staffed below levels that are required in order to qualify for Medicare and Medicaid reimbursement. That’s why the data are important for protecting the elderly who are in confined care situations.

How HR Executives Go to Jail: No-Poaching Agreements with Competitors

There are several reasons that wages are stagnating. One likely reason is that large employers secretly agree not to poach each other's employees.

And now, the U.S. Justice Department (DOJ) is using the criminal provisions of the Sherman Antitrust Act to hold executives responsible for this illegal practice.

Obama Example #1 involves two large companies that manufacture brakes for trains. The Obama DOJ alleged that Wabtec and Knorr-Bremse agreed not to hire many of each other’s senior employees in 2009. That included project managers, engineers, corporate officers and sales workers, according to the DOJ. The Obama DOJ broke that practice without jailing anyone.

Obama Example #2: Large Detroit medical centers agreed among themselves not to hire nurses, doctors, and all other employees from each other. This not only tamped down pay for specialists but for hourly wage earners. The Obama DOJ broke that practice without jailing anyone.

Now comes this new stance from the Trump DOJ (quoting from New York Law Journal’s recent reporting):

“In January 2018, the new head of the Antitrust Division—Assistant Attorney General Makan Delrahim—publicly stated that the Division has several ongoing no-poach investigations and would soon be bringing enforcement actions in these investigations: “In the coming couple of months, you will see some announcements, and to be honest with you, I’ve been shocked about how many of these [no-poach agreements] there are, but they’re real.” This warning followed public remarks by the Antitrust Division’s second-in-command—Principal Deputy Assistant Attorney General Andrew Finch—late last year indicating that companies and their executives “should be on notice” that they could be criminally prosecuted for participating in no-poach or wage-fixing agreements regardless of whether they compete to sell the same products or services.”

Archdioceses & Big Ten Schools: The Shockingly High Cost of Sex Abuse

The Catholic Church and Big Ten universities—though different institutions— have custodial relationships with minors. They also have a legal role called parens patriae—essentially, the role of a guardian to ensure the well-being of minors entrusted to their care.

With that backdrop in mind, consider the following:

Michigan State University: The school has agreed to pay $425 million to the 332 victims represented in current litigation, with another $75 million set aside in a trust fund that could go to future plaintiffs.

Penn State (Sandusky abuse case): As of November 2017, Penn State has paid out an additional $16 million to people with claims they were sexually abused by former assistant football coach Jerry Sandusky, raising the total amount of payouts to more than $109 million.

The Los Angeles archdiocese in 2007 paid $660 million to 508 victims.

More generally, from 2003 to 2009 there have been at least nine major settlements with archdioceses in the U.S. involving over 375 cases with 1551 claimants/victims, resulting in payments of over $1.1 billion.

Common threads in these horror stories are lack of supervision of adults charged with caring for minors, ignoring complaints, and attacking complainants while protecting the abusers.

Homeless Black Man Arrested for “Fake” (Actually, Real) $10 Bill at Burger King

A homeless black man tried to buy breakfast at a Boston Burger King in November 2015. He placed his order and handed the cashier a $10 bill. The cashier called the police and had the man arrested for presenting a counterfeit bill. The police arrested the man, Emory Ellis. He spent three months in jail. At that point, the U.S. Secret Service examined the bill and found it was legal. Ellis was released.

Ellis is now suing Burger King for $1 million. His attorney, Justin Drecshler, told Law360 (a legal reporting service), “Had Mr. Ellis been a 35-year-old white man with some downtown job and tried to pass that exact same bill, there is no chance things would have gone down as they did. There is no chance they would have questioned it. There is no chance they would have refused to give it back or threatened to call the police. Had Mr. Ellis been white, he would have received an apology.”

You’re Tagged: Did Facebook Violate Your Privacy Rights?

Who owns your facial image? Illinois has a strict privacy law that prohibits collection of biometric information without a person’s consent (there are exceptions).

Facebook has a face-scanning technology.  On Monday, a federal judge in California certified a class action lawsuit on behalf of Illinois Facebook users alleging that the social media giant unlawfully collects biometric data from the tagging of their photos.

One defense put forward by Facebook is that plaintiffs cannot show an “actual injury”—a concept that the Supreme Court endorsed in a recent decision called Spokeo.

Spokeo utilizes web tools to aggregate data—for example, your name, email, phone number, username or address. The firm aggregates information from public records and does not do original research into personal data. Marketing firms can use this information for commercial gain.

Larry Poneman sued Spokeo alleging, among other things, that the site led to cyberstalking. In 2016, the Supreme Court ruled that Poneman and others had no standing to sue because they could show no "actual injury."

This illustrates the uphill climb facing Facebook plaintiffs. They say that Facebook cannot—without their consent— collect scans of facial geometry.

Illinois’ Biometric Information Privacy Act authorizes damages of $1,000 for negligent violations of the law, and $5,000 for intentional or reckless violations. Stay tuned for updates.

Far Beyond Sports Betting: Education Mandates and Public School Testing

No Child Left Behind was regarded as a bad law and set of policies—so bad that conservatives, liberals, and libertarians successfully pushed for legislation to end NCLB and replace it with a smaller version (called Every Student Succeeds Act, ESSA).

The main problem with both laws is that they mandate certain achievement test scores in order for local public schools to receive federal funds.

Today’s ruling on sports gambling has strong implications for public school testing and funding. That’s not obvious—so what’s the story?

Let’s start with today’s Supreme Court ruling, striking down a federal law that prohibited all states, except Nevada, from regulating “competitive sports” wagering. Now, every state can enact a law—for example, to allow betting at venues in the state, and to collect revenue from wagering.

But the decision has immense implications beyond sports gambling—more than anyone can foresee today. Why is that?

Because the winner today— New Jersey—argued that the Tenth Amendment prohibited the federal government from “commandeering” its power to regulate sports gambling. 

To understand New Jersey’s point, look at the text of the 10^th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the amendment says that the federal government has only those powers specifically granted by the Constitution.

Look at the U.S. Constitution: It does not enumerate any power to Congress to regulate education. Moreover, education has traditionally been locally-funded, locally-controlled.

So look for lawsuits very soon to get state and local school boards out of the testing business. That won’t address the much stickier issue of funding for federal programs, such as Title I (funding for reading educators to bring students up to standards). 
Two options on the surface are (1) make funds available without any accountability to the U.S. Department of Education or (2) cutoff federal funds and let states end these programs or pick up the costs.

But this just scratches the surface of federal-state co-regulation.

If you are a liberal, you might be disappointed to learn that federal environmental regulation for clean water—which involves federal mandates to state and local governments to meet quality standards—will be at risk under this precedent.

If you are conservative, you might be disappointed to learn that Attorney General Sessions’ threats to withhold funding to local police departments in “sanctuary cities” will also be at risk because policing is a local power, not a federal mandate.

Taken to its extreme, today’s ruling calls the New Deal and the contemporary version of extensive federal powers into question. 

Many people will cheer this—but our nation’s history with “states’ rights” is epitomized by the picture for this post. 

Why I’m Against A+

I am reading (and grading) amazing course papers—many that I find inspiring! So why do these papers receive an A and not an A+ grade?

My rationale begins in the UIUC grading scale, which (like many others) officially awards these point values:

A+       4.00               A         4.00

Now, that is dishonest. Ask anybody if an A and A+ are different, and they’ll say yes—A+ means something like superior, and A means something like excellent. Fair enough … but why doesn’t the university provide a meaningful numerical bonus? 

The answer is that the university really means that an A is the best grade you can achieve.

But there is important symbolism in an A+, right? Yes, there is.

But there is another way for a professor to express admiration for an “A+” paper: Write to your student. Tell her or him that they were outstanding. It might mean more than the plus sign.

But my reason is deeper. My students are about to launch their careers. If they get meaningful mentoring, they’ll receive a mix of positive and need-to-improve reviews. They will never hear their mentor or boss say, “You’re doing A+ work.” It’s not that the workplace is mean-spirited—it’s just that’s not how organizations evaluate performance.

A+ is like candy—it is sweet and fun to give out, but it has potential to create decay.

It signals that there is no room for improvement—and that is simply not the case. No matter how much we excel, there is room for improvement. The A+ grade is the new A, making an A a de facto A-, and so on.

Many of my students are A+. I will tell them in so many words, personally. But they’ll rarely if ever have a performance review with A+ on it. We need to set realistic performance review expectations.

Announcing Next Research Project: Biometrics at Work

At a research university, faculty spend summer (with much more free time) delving more deeply into their work. My next project, launching soon, is biometrics at work.

The first leg in this long term project is to understand the emerging technologies for human biometrics. 

Fitbit is an obvious example, but it scratches the surface. 

In professional sports—and now NCAA programs— some teams measure biometrics during practice and a few on a 24/7 basis (including sleep). 

Canadian national hockey programs—the youth feeder program to the NHL— massively monitor data from young athletes, “mine” it, and also sell it to sponsors (no telling how that is used for profit, but it probably is).

A few employers “chip” their workers. A Wisconsin company “chips” employees voluntarily to track their time at work. Where there’s a chip, there’s a way to measure more than just movement—and this company, called Three Square Market, has opened a Pandora’s box. This is not convenience. It’s Big Brother at work.

More practically speaking, some employers have wellness programs. They offer lower health insurance if employees hit certain biometric targets—e.g., steps, minutes, hours being active. 

It’s a promising idea but also ripe for abuse. Is biometric data “personal health information” under HIPAA, the primary medical privacy law? I don’t know … but I’ll find out.

If you have thoughts or ideas or experiences or stories to share, I am at the beginning point on this journey—share with me at mhl@illinois.edu. I have a lot to learn (this is like Columbus's voyage with no sure destination!)

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To Complete: I’ve been working on executive orders that regulate private sector employment, focusing especially on race and immigration issues. It is a massively overlooked topic. 

To show you how important it is: President Truman issued an executive order in 1950 that required the U.S. government not to discriminate on the basis of “race, color, religion or national origin” when it hires (sex was not included). Fourteen years later, that incredibly important concept was the backbone for our nation’s main anti-discrimination law (private sector and public employers), called Title VII. It's as though Truman's order served as a laboratory for the nation in dismantling racial segregation at work.

President Hoover—to cite a sad example— used an executive proclamation to set extremely low quotas for all immigration, except people from the U.K. The impact on labor markets was significant. He tweaked the quotas  to admit “Nordics.” Why that? Because the Iowa native—coming from an area where Scandinavians had migrated— realized that his "base" threatened to vote for Democrats if their fellow Norwegians and Swedes could not get past Ellis Island. Sounds Trumpian in its crass political calculations.

I’m a long way from looking at President Trump’s executive orders, but in time I’ll be able to compare his footprint with presidents dating back to (are you ready?) … Martin Van Buren! He issued the first executive order that affected the private sector—an order that put a ceiling on public works contracts (e.g., shipbuilding) to ten hours a day.

Trumpism and McCarthyism: Finding Solace?

While researching Truman’s papers today, I came across a remarkably relevant speech he gave.

For brief context, a Republican Attorney General (Herbert Brownell) used a public speech to accuse former President Harry Truman of bringing Communist spies into high government positions. It was irresponsibly false. The speech played to Sen. Joe McCarthy’s populist attacks on government elites, the FBI, Hollywood, and academics.

Within days, the Republican-led House Un-American Activities Committee subpoenaed Truman to testify.

On November 16, 1953, Truman issued a statement explaining that he would not comply with the subpoena.

He ended by stating this:

“The corruption of truth, the abandonment of our historical devotion for fair play, the use of the big lie and the unfounded accusation against any citizen in the name of Americanism or security, the rise to power of the demagogue who lives on untruth, the spread of fear and the destruction it faith in every level of our society is not a partisan matter.

'This horrible cancer is eating at the vitals of America and it can destroy the great edifice of freedom. If this sordid, deliberate and unprecedented attack on the loyalty of a former President of the United States is going to serve to alert the people to the terrible danger that our nation and each citizen faces, then it will have been a blessing in disguise.”

Hopefully, truth will be restored to its rightful place in public discourse. For more, see file:///C:/Users/m-leroy/Downloads/18-6%20(2).pdf.

LGBT Boss Fires HR Employee for Anti-Trans Facebook Post: Trump EEOC Supports Straight Employee

Only a few courts recognize LGBT status as a being protected under the term “sex discrimination" in employment law. Most courts still rule that legislation is required to indicate that Congress intends to protected gay workers from employment discrimination (many states take a broader view of discrimination, affording a venue for gay people).

Now comes this first-time case, where an LGBT boss read her HR employee’s Facebook post expressing concern that a policy at Target Corp. would allow transgender women to share a bathroom with her young daughters. The HR person for fired for having anti-LGBT animus.

The fired employee sued, claiming discrimination based on being straight.

To begin with, in the state where this occurred—Louisiana— the Fifth Circuit Court of Appeals does not recognize LGBT status as a basis for recovery on a claim for sex discrimination. To that court, “sex” in Title VII refers to when a man discriminates against a straight woman or a woman discriminates against a straight man—but not this does not apply to situations with gay employees.

With that in mind, the trial court rejected the claim by the fired woman, stating: “It is unreasonable for plaintiff to believe that discrimination based on her status as a married, heterosexual female constitutes discrimination on the basis of her sex.”

The matter is on appeal to the Fifth Circuit. 

Enter the Trump administration, which wants to make a legal point that straight workers can be eligible for relief under Title VII. It filed a brief in support of the straight employee. Interesting ... who knew that straight people are a victim class.

I’m willing to go there, provided that it works all ways: If a straight boss fires a transgender employee because of the person’s sex, that’s discrimination. If a transgender boss fires a straight person for opposing all-access bathrooms on Facebook (without directly harassing an LGBT person), then I’m willing to say that that’s employment discrimination “because of … sex (quoting statute).”

But my hunch is the Fifth Circuit will recognize that “straight” is protected, but LGBT is not.

Here’s why. Joseph Oncale (pictured) looked gay to his male co-workers. They worked on an oil rig in the Gulf—out to sea 14 days at a time. Oncale’s homophobic co-workers viciously harassed him including stripping him and forcing a bar of soap shaped like a penis in Oncale’s rectum. Oncale sued his employer for sex discrimination. The Fifth Circuit said male-on-male sexual harassment does not arise under Title VII-- case dismissed. The Supreme Court overruled the Louisiana-based court—a court that sometimes appears stuck in the sexual mores of the 1950s. 

Executive Order 8985 Establishing the Office of Censorship

Yes, the United States had an Office of Censorship. FDR created it two weeks after Pearl Harbor was devastated by a surprise attack from Japan. In hindsight, it is a troubling precedent.

The order began thus: “All Americans abhor censorship, just as they abhor war. But the experience of this and of all other Nations has demonstrated that some degree of censorship is essential in wartime, and we are at war.”

It then said:

“It is necessary that a watch be set upon our borders, so that no such information may reach the enemy, inadvertently or otherwise, through the medium of the mails, radio, or cable transmission, or by any other means.

It is necessary that prohibitions against the domestic publication of some types of information, contained in long-existing statutes, be rigidly enforced.

Finally, the Government has called upon a patriotic press and radio to abstain voluntarily from the dissemination of detailed information of certain kinds, such as reports of the movements of vessels and troops. The response has indicated a universal desire to cooperate.”

The order lasted until 1945.

On Friday, President Trump addressed a rally in Ohio. He repeated his pledge to build a wall. He added something new: “And we're going to get tremendous security in our country. And we may have to close up our country to get this straight, because we either have a country or we don't.”

FDR called upon the press to be “patriotic.” He distorted the dangers about securing our border. Not a single case of espionage was brought against a Japanese American or Japanese resident alien in WW II. The difference is that we suffered a brutal attack by a hostile nation. Today is different.

“Too Experienced” = Age Discrimination, Say Courts

Three age discrimination cases are making legal waves.

CASE 1: AARP is representing Dale Kleber in a lawsuit against CareFusion, a medical instrument firm, because of the way they advertised a corporate lawyer job. The company said an applicant had to have seven years or less in experience, in addition to other qualifications. Kleber, who was 58 when he applied, brought a disparate treatment claim alleging the company violated the ADEA by hiring a younger, less qualified applicant. On April 26^th, the federal appeals court in Chicago agreed with Kleber’s legal argument: Even though the hiring criterion did not mention age, it effectively filtered out a very high percentage of otherwise qualified applicants over 40. His case will go to trial (or be settled). The case is Kleber v. CareFusion.

CASE 2: A trendy chain restaurant— Seasons 52—settled an age discrimination lawsuit with the EEOC (Equal Employment Opportunity Commission) on Thursday for $2.85 million. The lawsuit accused the company of refusing to hire “old white guys” and other applicants over 40 in order to maintain a youthful image. Applicants were told they were "too experienced" and that the company was "not looking for old white guys," among other comments, according to the lawsuit. The lawsuit stemmed from complaints filed with the EEOC in 2010 by two men who were turned down for jobs at a Seasons 52 in Coral Gables, Florida.

In addition to the payout, the company agreed to post pictures of “age diverse staff” on its social media accounts, and eliminate questions asked at job interviews that could reveal an applicant’s age, according to the filing.

CASE 3: Last year, restaurant chain Texas Roadhouse, settled a similar age discrimination case for $12 million. The EEOC claimed that the company routinely rejected job applicants over 40 for front-of-the-house positions such as waiters and bartenders. The company destroyed emails, job applications and records of job interviews during the EEOC’s investigation.

CREDIT: LIVELIFEHAPPY.COM