Workplace Accident Leads to Amputated Arm and Pain “Like a Thunderstorm Going through My Body 24 Hours a Day”

Tomorrow is our last employment law class. We will discuss a case where a manager ordered an employee to use a table saw that had been idled due to a broken safety guard. Under the threat of being fired, the employee worked on the saw. He lost several fingers in an accident—and he sued for what are called tort damages. His theory? This wasn’t an accident. The employer’s reckless behavior caused it. It was an intentional injury. He won.

That was a 40 years ago. 

This week, Oklahoma had a similar case. Meet James Todd Beason. He was working in the oil fields when an 80-foot arm of a crane crashed down on him. He lost his left arm. That was terrible. But worse was his uncontrollable nerve damage, which he says is “like a thunderstorm going through my body 24 hours a day.”

This pain has completely upended his life. He cannot make plans for the simplest of occasions—going to church, being with family, enjoying basic functions in life. Pain is his master.

Tort law provides a remedy for this loss of enjoyment of life. It’s called “noneconomic damages.” Oklahoma lawmakers passed a GOP bill that limited these damages to $350,000 for life.

Beason’s attorney, Luke Abel, correctly explains that caps on noneconomic damages have the most impact on people who can’t claim an economic loss— retirees, stay-at-home moms, and children. Mrs. Beason received a $6 million judgment due to the damage inflicted on her marriage by the carelessness of the company that severely injured her husband.

Last week, the Oklahoma Supreme Court ruled that the cap on damages was unconstitutional: pain and suffering damages are as real as economic damages. GOP lawmakers vow to overturn the ruling

Roof Fall Hazard: Our Employment Law Class Gets a Lesson

Our class is ending the semester with a section on OSHA— the Occupational Safety Health Act.

By coincidence, our building is under construction. We have no control over the project—it is for the contractors.

But look at the picture, taken this morning. A large crane is hoisting heavy materials to and from our roof. Our roof is about three stories above ground level (at this place on the west side of the building).

Look at the edge of the roof: it has no guard.

Look at the worker: he is leaning over.

Look at the built-up edge of the roof. It comes to about the knees of the worker.

I cannot say for sure, but this looks like a violation of an OSHA roof regulation (29 CFR Part 1926 Subpart M (fall protection)),

§1926.501(b)(1) states:

Unprotected sides and edges. Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.

So what, you say. 
He’ll be fine. 
That’s very likely true, for today. 
But note this: “Falls are the leading cause of death in the construction industry, accounting for over 3,500 fatalities between 2003 and 2013. Falls from roofs accounted for nearly 1,200, or 34%, of the fall deaths during that period.”

Source: https://www.osha.gov/Publications/OSHA3755.pdf.

It sounds like I am being critical. 
My real intent is to provide my 40 employment law students a real-life lesson. Many of them will be in facilities where construction is commonplace—and where roof work is also commonplace. This message is mostly for them—and anyone else who is interested.
Post-Script: An OSHA study showed that the 50% survival rate for workplace falls is 17 feet. Below that amount, many workers are paralyzed by falls, typically starting at 12 feet. 

Common Census

As you likely have read, the Trump administration is planning to undercount the U.S. census in 2020 by asking a question on citizenship. The approximately 12 million or so people in the U.S. who are here without legal authority will tend to avoid answering the census. Likely, many people with temporary legal status will also be deterred.

American businesses oppose the administration. David Kenny, CEO of Nielsen, recently wrote: “A citizenship question will pollute a data set that is foundational for businesses all over the country.” He explains:

“This truth set is more critical now than it has ever been before, as business reflects a changing America. In 2044, white Americans will be a minority. We know that because prior decennial census data has told us so. At that time, Hispanics will constitute 25 percent of the population; African-Americans, 12.7 percent; Asians, 7.9 percent; and multiracial people, 3.7 percent. American businesses are already adapting to this evolving customer base, but they require the best possible data to do so.”

Now let’s have some historical perspective. 

For that we visit England in the mid-1500s! Lawrence Stone, in his 1949 research article, “Elizabethan Overseas Trade,” notes that England’s economy languished for 200 years— until the Crown started to collect as much data as possible about its population, its commerce, its churches, ports, ships, roads, and so forth.

In relevant part, Stone concluded:

During the reign of Elizabeth, in the face of recurring economic crises, and of the far more  pressing threats of foreign attack and popular discontent, the government steadily proceeded to extend its control over almost all sectors of the national economy. Perpetually, Burghley called upon his subordinates for statistics and yet more statistics to serve as a basis for policy.

… Aware of the economic and military necessity of obtaining vital statistics, Burghley produced a plan for a General Registry Office to which 'there should be yearly delivered a summary ... whereby it should appear how many christenings, weddings and burials were every year  within England and Wales, and every county particularly by itself, and  how many men-children and women-children were born in all of them, severally set down by themselves.

How did England benefit from an accurate census? 

Many ways—but one very telling example is that the island nation had too few ships and seamen to support its population.

The data allowed the English government to enact policies to build up its maritime fleet. Until that time, they relied heavily on ships flagged under different nations.

The census plan for 2020 is motivated by xenophobia. It is also medieval in its blind faith in ignorance as a tool for economic planning. Queen Elizabeth would shake her head at America’s stupidity in knowingly undercounting its population.

My Brush with the Infamous Milgram Experiment

Last week, my colleague and I were part of a front-page local news story.

No, I am not discussing any details here (or anywhere else). But there is a lesson here for all of us.

The banner headline reads:

Coach: “Everyone makes mistakes. No one is perfect.”

AD: “I feel very confident in the culture we have created.”

Profs: “We found the information credible and disturbing.”

…

Prof. Stanley Milgram, a Yale psychologist, measured the willingness of men to obey an authority figure who instructed them to perform acts conflicting with their personal conscience. Participants were led to believe that they were assisting an unrelated experiment, in which they had to administer electric shocks to a "learner." These fake electric shocks gradually increased to levels that would have been fatal had they been real.

The experiment found, unexpectedly, that a very high proportion of men would fully obey the instructions, albeit reluctantly. Milgram devised his psychological study to answer the popular contemporary question: "Could it be that Eichmann and his million accomplices in the Holocaust were just following orders? Could we call them all accomplices?" The experiment was repeated many times around the globe, with fairly consistent results: roughly 65% of the male participants were willing to override their conscience and administer painful shocks to strangers.

FUCT. “I’m f****d.” How Roman Law Affects Our Laws

This week, the “F” word made headlines twice. The Supreme Court is hearing an important First Amendment case. 

The man who designed and markets a clothing line called FUCT applied for trademark approval from the U.S. government. He wanted to protect his brand. Federal law prohibits trademark protection to words, phrases, and images that are “immoral,” “shocking,” “offensive” and “scandalous.”

If you think this case is easy— that FUCT should be trademarked— consider whether “Kill the Jews” can also be trademarked. (Yes, this speech is protected by the First Amendment, but can the U.S. government be compelled to issue trademark protection to it? Under current law, the answer is no.)

“Fuck” is not on trial here. Hate speech is. Just imagine if the “fine people” (using the president’s morally repugnant term) who organized the Charlottesville hate weekend apply for trademark protection of their inciting language.

This takes me to a conversation in our employment law class about the common law—a body of judge made rulings dating back to the 1400s. I recently found a much earlier date for the common law that affects our daily lives—535 A.D. Justinian, a Roman emperor, formed an academy of Roman legal scholars. Their job was to summarize the vast array of Roman court rulings that stretched over centuries and distant lands. You can find that work translated here (it is fairly short: http://thelatinlibrary.com/law/institutes.html).

Rome believed that words can cause injury. We have carried the law forward from 535 A.D. to 2019. It’s called defamation, and libel. We have a variant of the law below. It is called hate speech, though efforts to regulate speech are extremely fraught. Basically, the law only prohibits hate speech when it is connected to a threat to commit harm.

Here is what Rome’s common law said:

IV. Injuria.

Injuria, in its general sense, signifies every action contrary to law; in a special sense, it means, sometimes, the same as contumelia ("outrage"), which is derived from contemnere, the Greek ubris; sometimes the same as culpa ("fault"), in Greek adikama as in the lex Aquilia, which speaks of damage done injuria; sometimes it has the sense of iniquity, injustice, or in Greek adikia; for a person against whom the praetor or judge pronounces an unjust sentence is said to have received an injuria.

1.     An injuria is committed not only by striking with the fists, or striking with clubs or the lash, but also by shouting until a crowd gathers around any one; by taking possession of anyone's goods pretending that he is a debtor to the inflictor of the injury who knows he has no claim on him; by writing, composing, or publishing a libel or defamatory verses against anyone, or by maliciously contriving that another does any of these things; by following after an honest woman, or a young boy or girl; by attempting the chastity of any one; and in short, by numberless other acts.

***
The text in red seems to refer to incitements related to hate speech—or more generally, speech that enrages a mob to act violently. And that is what we saw at Charlottesville.

Here’s hoping that the Supreme Court doesn’t FUCT the law to the point of ignoring what Rome understood: Some speech can kill.

Rare Bipartisan Tax Bill Hurts Taxpayers

(Source: NYT Editorial, 4/10/2019)

The House passed a bill yesterday called the Taxpayer First Act. It prohibits the IRS from developing a free online software that most American households could use to file their taxes. The Senate is considering this bill today. It has bipartisan support.

This defies logic and common sense … until you pull back the curtain and see who is pulling the string. As the NYT explains:

“The explanation is sad but not surprising. The most vocal opponent of simplicity is Intuit, the maker of TurboTax, which has spent millions of dollars lobbying against efforts to reduce demand for its services. The company draws support from conservatives worried that making it easier to file taxes would make it easier to raise taxes.”

April 9, 1866: When Congress Overrode a Veto to a Key Civil Rights Law

The Civil Rights Act of 1866 enacted core civil rights for freed slaves, free blacks—and all other minorities. It created voting rights. The right to be on a jury. The right to make and enforce contracts.  The right to public accommodations without racial exclusion. In many states, only free whites enjoyed those rights.

President Andrew Johnson had long history of viewing blacks and foreigners as an inferior race. Listen to his voice (in his veto message to Congress) … and compare him to the likes of Rep. Steven King and Stephen Miller:

By the first section of the bill all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people, of color, negroes, mulattoes, and persons of African blood. 

Every individual of these races, born in the United States, is by the bill made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than federal citizenship. It does not purport to give these classes of persons any status as citizens of States, except that which may result from their status as citizens of the United States. The power to confer the right of State citizenship is just as exclusively with the several States as the power to confer the right of federal citizenship is with Congress.

I emphasized his last sentence to underscore his meaning: A state could deny citizenship to a black person, a Chinese person, and other racial and ethnic minorities. To Johnson, the South never lost the Civil War.

Johnson's veto message is the essence of the nation’s policies on immigration as administered by the 45^th president. 

He, and the 17^th president, had much in common.

On April 9, 1866, Congress stood up to racism and xenophobia.

On April 9, 2019, the Senate would likely refuse to take up a similar resolution.

April 9: Honoring My Dad’s Uncanny Insight on the Darkness of Mankind

My father died on April 9, 2005. For his sake, I’m glad he did not live to see Charlottesville, the Tree of Life Synagogue massacre of Jews, and all the hate in our midst. His obituary below captured his dark view of human nature—though he held out hope for everyone under 18 years of age. He believed kids could be taught not to hate.

In high school, I had repeated disagreements—even tense arguments— with my Dad on the topic of antisemitism. I had a sheltered upbringing, living on a nice little horse farm and attending school with really nice people. My Jewishness—almost unique at our mid-sized school— was accepted without notice at Dundee Community High School.

My Dad never really escaped Auschwitz or Bunzlau. In the 1970s, a distant news story of Jews being sent to camps in the USSR, or killed by militants in the Middle East, or being slaughtered at the Munich Olympics (the Israeli team) sent my Dad into a deep and prolonged tailspin. 

Often, I felt that he projected his intense pessimism on me— a happy, affluent, assimilated Jew who marked his teenage years with great optimism about the inevitability of human progress. 

I resented his abiding pessimism about humanity; he resented my unbounded faith in human nature. 

If I could have just one more minute to talk to my Dad, I would say: “You are right. Hate comes easily, even naturally, to people; compassion is hard. Jews are still targeted…. as are Muslims, and many other minorities around the globe. And you’re right, Dad, about the over/under line on the human heart: Under 18 years old, there is hope; over that age, no. I will talk to a class of 5^th graders this week. Their hearts are good. I won’t teach them much that is new. But my job is to motivate them to follow your footsteps in teaching people not to hate.”

***

Chicago Trubune

ROBERT LEROY, 80
Holocaust survivor spent life working to end hatred

By Glenn Jeffers

Tribune staff reporter
Published April 12, 2005

The 1945 quarter Robert LeRoy wore around his neck meant more than 25 cents. It reminded him of humble beginnings.

It reminded him of the day he stepped off a steamer in 1949, one of the few members of his family to survive the Holocaust. That quarter was all the money Mr. LeRoy had.

It was a first step toward building a new life, first with his Elgin-based construction company, then through charitable deeds and talks to children about the dangers of hatred.

Mr. LeRoy, 80, died Saturday, April 9, from complications from pneumonia and congestive heart failure in his Elgin home. But before that, he took a hard life and 25 cents and made a wonderful, generous life for his family, said his wife, Carol.

"He believed that he had survived for a reason, and that reason was his children and his grandchildren and to give back to the community," she said.

It was 1944 when the Nazis rounded up Mr. LeRoy, then a 19-year-old named Otto Lefkovits, and his family in his hometown of Nyirmada, Hungary.

They were taken to Auschwitz, where Mr. LeRoy and three of his siblings were separated from the rest of his family.

Mr. LeRoy was shipped to Bunzlau, where he built aircraft decoys to fool Allied bombardiers. His mother, father and a brother, Mr. LeRoy recalled, were led into a showering area.

"No one knew it was a gas chamber," Mr. LeRoy said in a Tribune interview in February.

The man once known as No. 46288 spent more than a year suffering through repeated beatings and starvation before the Germans abandoned the camp and Russian tanks broke through the walls in 1945.

Mr. LeRoy would come to mark that day— Feb. 11— as the end of his imprisonment. But it also spawned a 60-year journey to understand why he had survived and 26 members of his family had not.

"You ask yourself, `Why am I singled out?'" Mr. LeRoy had said. "`Why did they do this to us? Why did they give us a horrible fate?' No one could answer."

Mr. LeRoy immigrated to the United States. He spent two years in the Army before he was discharged in 1953. He then moved west.

After marrying the former Carol Schultz, Mr. LeRoy and his bride moved to Elgin, where they started a construction and remodeling business. He said he owed those skills to a very unlikely instructor.

"Hitler," he said. "I learned to push a wheelbarrow."

But images from Bunzlau haunted Mr. LeRoy, sometimes in his dreams, other times when he was awake. He would cry sometimes when he walked into a shower, his wife said.

He'd combat those memories by surrounding himself with family, Carol LeRoy said.

"I don't think there was a day he didn't think about it and miss his family," she said.

But when LeRoy heard about a Northwestern University professor who claimed in the 1970s that the Holocaust never occurred, he began a crusade to educate people on the horrors of the Holocaust. His target: children.

Mr. LeRoy believed children could be taught not to hate. And for the next 30-plus years, he taught that message to children in grade school and high school.

Even after he retired from construction in 1989, Mr. LeRoy continued the talks.

They helped answer those questions that plagued him. He survived to help others, be it with lessons or with the ambulance his family bought and sent to Israel back in 2001.

Last year, Mr. LeRoy bought Grape View Farm, a century-old vineyard west of Hoffman Estates, saving it from developers.

"I have no doubt he made a very strong impact," his wife said. "Not just here, but in Israel, in Hungary, in Champaign, in anyone who ever heard him speak."

Survivors also include sons Michael and Steven; a daughter, Cathy; a brother, Steven; and seven grandchildren.

Is the U.S. “Full”? How Rome Built an Empire by Welcoming Aliens

Cartoon by David Fitzsimmons

Yesterday, President Trump declared: “Our country is full, our area’s full, the sector is full. We can’t take you anymore, I’m sorry, can’t happen. So turn around, that’s the way it is.”

This post offers a perspective that is not in the news: How Rome built an empire around a liberal view of welcoming aliens.

Today’s teacher is Prof. Edward Manson. He authored an article in 1902 (not a typo) titled, “The Admission of Aliens.” Here is a paragraph that summarizes his understanding of Roman immigration law:

The "Jus Hospitii" at Rome.-This liberality of treatment prevailed at Rome from primitive times, and is typified in the legend of Romulus’ Asylum on the Seven Hills. Rome was a commercial city indebted for the commencement of its importance to international commerce, and with a liberality not less wise than honourable it granted, as Mommsen remarks, the privilege of settlement to every child of an unequal marriage, to every manumitted slave, to every stranger who, surrendering his rights in his native land, had emigrated to Rome. The result of this liberality was that there grew up around the old genres a large population of mixed elements remnants of conquered peoples, foreign traders and settlers, and emancipated slaves. The gentes took their place as an aristocracy of birth, with a monopoly of civic and religious privileges; the plebs had to content themselves with a subordinate position-the enjoyment of legal rights without civic honours.

What are Prof. Manson’s key points?

First, Rome capitalized on its geographic proximity to international commerce by adopting a liberal view of treating foreigners.

Second, Rome encouraged foreigners to make their homes in the empire, and raise families there. They did this through legal residency—that is, by granting “the privilege of settlement to every child of an unequal marriage, to every manumitted slave, to every stranger who, surrendering his rights in his native land, had emigrated to Rome.” In other words, getting a “green card” in Rome was easy.

Third, Rome grew by assimilating people of very different backgrounds and colors. As Prof. Manson puts it, as Rome matured it had a “population of mixed elements remnants of conquered peoples, foreign traders and settlers, and emancipated slaves.”

That sounds like the U.S. in 2019. Whether we are “full” or have capacity to grow our population is not a matter of land or resources: It is whether we treat aliens as a national threat or as human resources for building the nation.

New State Workplace Laws: Some Surprises

Not a surprise: Some states are raising the minimum wage to $15 per hour (New Jersey, Maryland, and Illinois), making a total of six states. These laws have various phase-in periods—mostly in the 3-5 year range.

Biggest surprise? New Jersey creates a tax-qualified IRA option for private sector workers. This is not a glamorous idea but it is highly significant.

New Jersey lawmakers passed a law that creates the New Jersey Secure Choice Savings Program. The program requires businesses with at least 25 workers to take part in a retirement savings program funded through payroll deductions that gives workers the opportunity to invest in an Individual Retirement Account administered by the state.

Employees at any size company can choose to partake in the program, and workers at businesses with 25 workers or more who are automatically enrolled can opt out if they choose.

Gov. Phil Murphy explained: “Saving for retirement is paramount for all employees, but too often, those who work for small businesses don’t have a simple way to set aside these savings. By creating the Secure Choice Savings Program, we are ensuring that every worker in New Jersey will have the opportunity to save for the future.”

New Jersey also passed a law (S.B. 121) which bars businesses from including mandatory nondisclosure provisions in either employment contracts or settlements that prevent employees from speaking out about discrimination, retaliation or harassment they claim to have endured at work. New Jersey joins California and New York on this legal front.

New Mexico has enacted new workplace protections for nurses. The Safe Harbor for Nurses Act, protects registered and licensed nurses in health care facilities from any adverse employment actions if they refuse an assignment because they believe it endangers patient health or flouts their legal duties under the Nursing Practice Act. In other words, New Mexico allows nurses to make a good-faith request to reject an assignment.

New York enacted a law in 2019 to increase trans rights (Gender Expression Non-Discrimination Act, or GENDA). The law prohibits discrimination based on a person’s gender identity or gender expression. The law also expanded the definition of a hate crime to include protections for trans people.

Finally, Kentucky’s legislature just passed a law to provide pregnant employees more protections. The law would prohibit businesses from refusing to provide reasonable accommodations to employees who are pregnant, or had a baby or have a medical condition related to pregnancy, unless the employer shows the accommodation would pose an undue hardship. Accommodations include modified work schedules, time off post-childbirth and a dedicated space to breastfeed. It will not become a law until Gov. Bevin signs it.

Source for post: Vin Gurrieri, State Of The States: New Employment Laws So Far In 2019 (March 29, 2019), in Law360.

Can We Have a Random Act of Kindness Day? How I Was Punked Today

Okay, I am a spoil sport: But please think twice before you do a group prank today.

Context: I’m on an email circulation for interdisciplinary research. In other words, the e-mail list consists of people from different departments.

A colleague in a different department sent out a note, with an attachment, announcing a symposium featuring several papers presented by UIUC colleagues.

Within minutes, one colleague replied to all, stating: “I’d go, but I just can’t get motivated . . .”

*Wow*, I thought. How ugly. How rude.

A second colleague replied: “Very disappointed that I was not invited to present my paper: ‘The effect of annual reports on academic productivity: An indifference-in-indifference test.’”

Holy smokes! These people have real problems, I thought.

I discreetly asked the sender of the notice: What’s up?

Answer: April Fools!

If I had opened the announcement, it would be obvious to me (I hope).

If I were closer to the group, it probably would have been obvious to me.

But I didn’t open the announcement; and the e-mail circulation list goes outside the building to others across campus.

I am more gullible than most people.

The joke is on me …. Unless others who are situated like me also got fooled like me and have drawn incorrect inferences about the main work group.
Then, the joke, sadly, is on that group of people for we have all misjudged them.

Instead of having a national day for fooling people, it would be better to use April 1^st as a Random Act of Kindness Day.