Peppermint Patty Explains Whistleblower Laws

A whistleblower law provides legal protection for someone who exposes unlawful conduct. In the U.S. the first whistleblower law was passed by the Continental Congress in 1778 after two naval officers blew the whistle on Commodore Esek Hopkins for torturing British POWs.

Listen in, now, as Peppermint Patty summarizes whistleblower laws to Charlie Brown.

PP (Peppermint Patty): Hey, Chuck, why so glum?

CB (Charlie Brown): I feel stupid. Everyone talks about whistleblower laws these days. I don’t understand these laws.

PP: No sweat, Chuck. Really, they’re complicated. That’s why you don’t get them.

CB: Huh?

PP: Okay. All of these laws try to protect people who are coming forward to report wrongdoing. But there are many types of whistleblower laws.

CB: Oh, brother.

PP: So listen up, Chuck. The clearest laws are in a statute. That’s a law passed by Congress or a state legislature. They divide into two main types.

CB: Do I have to listen to this?

PP: Quiet, Chuck, we’re almost done. Some laws protect whistleblowers only if they report inside their organizations. Usually, there is a process for this. If the whistleblower runs to the media—outside of the process— they lose protection. Other laws protect whistleblowing outside the organization-- say, to law enforcement or a regulatory agency.

CB: Are we done yet?

PP: Nope, Chuck. Some whistleblower laws protect reporting of ethical lapses, while others limit protection to reporting of actual unlawful conduct—a criminal law, stuff like that.

CB: What if the whistleblower believes that someone broke the law but isn’t sure?

PP: Now you’re talkin’, Chuck. So, some laws require the whistleblower to have a good faith belief that they are reporting lawbreaking, others aren’t specific about that, just that the whistleblower can’t be making stuff up.

CB: Does the whistleblower need firsthand knowledge?

PP: Well, Chuck, I’ve never seen a statute drafted that narrowly. It sure helps the whistleblower’s case if they have firsthand knowledge, but often they don’t.

CB: I feel like I’ve learned nothing.

PP: Now, Chuck, that’s what we call a bad attitude. The surest thing I can tell you is that many whistleblowers face retaliation.

CB: I’m sorry I asked. 

PP: Don’t worry, Chuck, it’s not like snitching on the Mafia. They make whistleblowers an offer they can’t refuse.

Does a Union Have a First Amendment Right Not To Represent a Worker?

Some of my labor law colleagues for the Cornell Conference worked on this question. It’s fascinating and sheds light on the future of unions in America.

Background: In 2018, the Supreme Court ruled in Janus that a public employee has a First Amendment right not to pay mandatory union dues. The worker doesn’t have to explain his or her reason.

This sets up a free rider problem. Those workers get union benefits without paying. This includes having the union file grievances for them and arbitrate cases—things that cost money.

The union is required to do this under labor law. That’s because the union has a “duty of representation” and is certified by the government as the “exclusive bargaining agent.” Think of the electoral college. If a thin majority of votes go for George W. Bush in Florida (2000 election), then Mr. Bush gets all the electoral votes for Florida. But this overlooks the fact that 49% didn’t vote for him. In my strained analogy, he is the “exclusive bargaining agent” for all of Florida. (I hope you see the lame comparison!)

So now my colleagues are thinking about this:

A worker is fired. He didn’t pay dues, invoking his “Janus right” under the First Amendment. But the union is still on the hook to represent him under traditional labor law.

One colleague says no. She believes that the First Amendment also has a right of association (that is undeniably true). So, she posits that the union has a constitutional right to associate with people who pay dues. Interesting. I don’t think courts will buy it because unions have this built-in duty to represent everyone, even dissenters.

Another colleague has a better theory. She says the First Amendment has a right to NOT speak. These cases usually involve efforts to get a person to disclose information—say, your citizenship status on a government form.

Okay. She argues that a union still has to represent the non-dues payer, but under the First Amendment has a right not to speak up for the worker either by filing a grievance or by advocating for the worker at arbitration. That is a better theory because the worker still gets benefits of a union contract, including wages and job protections. Plus, unions turn down requests to arbitrate by dues-payers all the time, especially when the worker is in the wrong.

For now, the free rider problem exists for unions.   

Meet Judge Marcia Berzon. She Just Ruled That Migrant Children in ICE Centers Have a Right to Soap, Toothpaste & Brush, & Bed

Judge Marcia Berzon was the keynote speaker at the Cornell Conference on Labor and the Constitution today.

She did not discuss the immigration case because it is still pending.

However, she talked about her 40 year career as a female labor union lawyer and a judge on the Ninth Circuit Court of Appeals (for my students, a judge on one of the “kitty cat” circuits, where each circuit has its own personality).

Boiling down her talk:

First, while she has long advocated for unions, she also has experienced problems with them as her employer. She worked for the AFL-CIO (main labor federation) and had great mentoring! 
But in her many years, not once was a woman lawyer allowed to argue an AFL-CIO case to the Supreme Court. That used to be about a dozen cases per year.

There was a female labor lawyer senior to her. It pained Judge Berzon to see her colleague passed up for the biggest assignments.

Things got worse. When her colleague married a black man, she lost her job. No explanation given. Her friend took a job with a far-left union, the IUE (I use far-left seriously, it’s a union that over time has been tangled up with socialism and communism, back in the day). 

Judge Berzon talked about a case we will discuss in class on Monday: Hopkins v. Price Waterhouse. Every woman (and many men!) who is reading this post can be thankful for the decision.

Ann Hopkins was the only woman in a major consulting business to come up for partner-level promotion in a cohort of about 90 peers. She was an excellent performer but brusque. She swore on the job. Male partners put her case on her hold until she learned “to walk more femininely, talk more femininely, and dress more femininely.” 
By a 5-4 vote, the Supreme Court ruled that Price Waterhouse discriminated on the basis of a gender stereotype. The employer had mixed motives: A valid reason, and unlawful reason. This meant the burden shifted to her employer to prove it would have made the same decision even absent the sex stereotyping.

That ruling, according to Judge Berzon, made a big difference in her career. She didn’t spell this out. 

But she might have meant that she could be a mom and a lawyer (her daughter, Andrea Berzon, is a Pullitzer Prize journalist with the Wall Street Journal). It could have meant she didn’t have to wear makeup to the office-- or could wear pants to work. It could have meant she could swear just like the boys. (In labor law, that goes with the territory... it is not a polite practice.) 
***

Judge Berzon also discussed how the labor law bar (attorneys) and academy (professors) have shrunk to levels not seen for the past century. When she worked as a lawyer, there were several dozen federal judges who were labor lawyers, either for unions or management (Supreme Court Justice William Brennan was a management lawyer, a son of a labor leader!). They understood working people and institutions such as protest groups and unions. Today, only four other judges out of 900+ federal judges have that experience.

On the labor law academy side, Cal-Berkeley hired its first such lawyer in the past 25 years in 2018. That’s Berkeley, the so-called Mecca of the Left. The number of tenure-line jobs for labor lawyers is usually ... zero every year. Once our generation dies, we do not know who will train these lawyers and who will do the basic research that is tried and tested in court cases. 

So much wisdom from a woman from Brooklyn who has overcome great odds to Make America Great Again!

Who Is Leaking In Trump’s White House? My Guess Is Here

Brutus Stabs Caesar

One thing that Republicans and Democrats agreed on today—and also President Trump: One or more of the people who are very close to him leaked sensitive information to the whistleblower.

My heart says Kellyanne Conway just because I cannot see how she and George Conway can co-exist in a marriage with such bipolar views of the president. Is she a mole?

But she is not my guess. It’s White House Counsel Pat Cippilone.

Sure, I am wrong. But here is my reasoning.

For one, his predecessor, Don McGahn, spent 30 hours being questioned by the Mueller team. McGahn did this freely. No one talks for 30 hours if he is compelled. It takes about 30 minutes to close down a deposition by asserting executive privilege or the Fifth Amendment.

He would have talked to Cippilone, who was taking over for him. I can’t imagine the conversation was flattering to the president. I believe it would be more like “help the president enact his agenda but do not allow people in the White House to break the law.”
Next, it's fair to say that Trump has a losing streak with his lawyers: McGahn cooperated extensively with Mueller, and it turns out that Michael Cohen was not willing to take a bullet for Trump. Cippilone might make it a hat trick. 

Then there is Cippilone’s education— an undergraduate degree, and a law degree, from the University of Chicago. I’m not suggesting every graduate of U of C is a saint. What I’m saying is that Chicago’s educational environment is crushingly challenging—you only excel there by having extraordinary discipline. I think that’s a trait that could lead to leaking out of some sense of moral imperative.

Then, there is the jealousy angle. It’s clear that the real White House lawyer is Rudy Giuliani. And Rudy was both lawyer and envoy in the Ukrainian machinations. That would have to grind Cippilone’s gears.

Then, there is the federal appeals court judge that Cippilone clerked for: Danny Boggs.

Judge Boggs has an unusual managing style: He constantly quizzes his clerks on history, literature, and classics. Now those are interesting topics. Anyone who is being quizzed on the study of the Greco-Roman world would know a lot of history, especially tragic emperors who are similar to Trump. 

This would sensitize a person to the perils of tyranny and abuse of power—not to mention glorious backstabbing events—for example, Brutus’ stabbing of Caesar, a megalomaniac of epic proportions (Trumpian).

Finally, there is the lawyer side to this. The public is really frustrated when lawyers represent the worst miscreants in society—but that’s the job of a lawyer.

But legal privilege between a lawyer and client ends when the client seeks to use a lawyer in the commission of a crime.

So, if that is true, Cippilone would be adhering to his duty as a lawyer—and also protecting his huge investment in his University of Chicago law degree.

Facing Day of Atonement, I Avoid First Uber Ride— “You Shall Not Reap All the Way to the Corner of Your Field.”

I am Jewish; and I am an academic labor lawyer. Thus, it’s not a surprise that I avoid Uber like it’s one of the Ten Plagues. 
Uber doesn’t pay into Social Security, like other employers—this is unfair to other transportation companies, and to Uber drivers (who pay all of these taxes). My grievances go on and on. You see the point, even if you use Uber.

I am presenting a paper at a conference in Midtown Manhattan. I don’t want to overpay for rides to and from the airport (please, no jokes about my being cheap, not now).

So, I asked my kids: “How do I put Uber on my phone?” After a brief pause where I imagined they were slapping their heads, I got set up. Thank you, Sam.

Today, as I prepare to go to NYC, my Jewish guilt got a hold of me. Why are you selling out now? How much money are you saving by compromising your principles?

Nah, I’m still taking Uber. It’s time.

But then I remembered the Yom Kippur (Jewish Day of Atonement) Torah reading about treating poor people with compassion:

“When you reap the harvest of your land, you shall not reap all the way to the corner of your field, or gather the gleanings of your harvest.  You shall not pick your vineyard bare, or gather the fallen fruit of your vineyard; you shall leave them for the poor and the stranger; I the Lord am your God.” Leviticus 19:9-11

The moral lesson is plain to see: Leave something for others. Even as you reap, you should think of the person who has not planted, whose crop has failed, who has been driven from his or her land, or is hungry right now.

To me, that includes the Uber driver: She has no employer-provided insurance for health, or even the car, or liability, no employer-paid taxes, no overtime pay, no minimum wage, no worker’s compensation. I object to this exploitation. The cab company is doing it the better way. 

I choose to support the worker (the cabbie) who will eventually qualify for a Social Security old-age benefits that his or her cab company paid 50% into. The Uber driver is cheaper today because the rider is essentially "subsidizing" her total lack of benefits.

I’ll be riding with Malone’s Cab. $68, airport to Midtown, plus tolls and tip. A bargain. And driven by an employee! (I asked.)

Without the Day of Atonement on my doorstep, I would have caved. I am so grateful.

“I’m 100% Gay” Case Heads to Oral Argument: How Will Gumby Rule?

A male skydiver was trying to reassure a female customer who expressed concern about being strapped closely in front of the man. “Don’t worry, I’m 100% gay.” This only agitated the customer who complained to the thrill-seeking company, Altitude Express. The boss fired the instructor, Donald Zarda.

Zarda filed a lawsuit under Title VII, a law that prohibits discrimination “because … of sex.” Look at those words: Do they limit protection to heterosexuals? No, say Zarda’s lawyers. Do they say LGBTQ employees? No, say the company’s lawyers.

The case will be heard next week in oral arguments before the Supreme Court. 
Why did they pick this case? My educated guess is they wanted a case that unambiguously presented a fact pattern of a gay person (here, self-declared), where being gay was the very reason for being fired. Although Mr. Zarda's phrasing "I'm 100% gay" is unusual, it tees up the legal issue perfectly.
Eight votes are almost certain to predict. There is some (not much) thought that Chief Justice John Roberts will follow retired Justice Kennedy and be a swing liberal vote on LGBTQ issues.

As you may know, I am using Gumby in class to portray Chief Justice Roberts because he has shown a marked tendency to move to the Court’s center (remember, Gumby can bend to the right or left). In this case, I predict Chief Justice Gumby will tilt to the right and rule with the employer. I think he is saving his bend-to-the-left for crucial constitutional matters such as the census case this past year.

PS: Mr. Zarda died in a skydiving accident after he filed his lawsuit. His family loved him so dearly, and were so hurt by his firing, that they are paying to keep his lawsuit alive.

Did Any Good From Japanese Internment Camps? Apparently, Yes.

Shortly before my Dad died, he was interviewed by a writer for the Chicago Tribune. The resulting obituary stated:

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.”

My Dad became a very successful construction contractor over a 50+ year period.

A recent study provides lots of financial data that shows that Japanese Americans remained in the communities and areas where they spent up to three years in camps-- and in time, established businesses. 

I never thought about this, but their California neighbors sold them out—and eventually took their property and businesses (as happened to my Dad in Hungary).

So, why not start all over in places such as Arizona, Utah, and Arkansas? And why not raise your children in these areas rather than California?

A team of researchers, led by Harvard Prof. Lauren Cohen, recently published “Resident Networks and Corporate Connections: Evidence from World War II Internment Camps,” in the prestigious Journal of Finance.

Here is their research summary:

Using customs and port authority data, we show that firms are significantly more likely to trade with countries that have a large resident population near their firm headquarters, and that these connected trades are their most valuable international trades. Using the formation of World War II Japanese internment camps to isolate exogenous shocks to local ethnic populations, we identify a causal link between local networks and firm trade. Firms are also more likely to acquire target firms, and report increased segment sales, in connected countries. Our results point to a surprisingly large role of immigrants as economic conduits for firms.

Their study is based on several large bodies of census, business, and international trade data—but in my own professional experiences, I can relate to this. In the 1980s and later, Japanese “transplants” sprouted in the U.S. 

The first time I noticed was the Honda car plant about 35 miles outside of Columbus, Ohio. But I see the implication of Prof. Cohen’s point: As Japanese firms looked to invest in U.S. operations, they would have looked to rural, isolated communities, in part, because these are nonunion types of locations. 

Next, they would eventually find savvy business people who had a nationality or ethnic affinity for Japan— the children and grandchildren of these terribly mistreated Japanese American citizens. Like my father, the people who were cruelly denied their freedom also made the best they could from their misery— and once free, they were determined to succeed.

AB-5: What Does This New California Employment Law Mean?

Gig work is a recent term that applies to a one-off work arrangement, generally involving payment of a flat fee rather than a wage. Uber typifies gig work: The driver turns on an app, accepts an assignment, completes the task, and is paid a formula-driven fee by Uber, the broker in the deal.

AB-5 (which stands for Assembly Bill 5) is revolutionary: It forbids most form of gig work, in fact, most forms of independent contracting. My opinion: It goes too far. More on that at the end of the post.

Let’s show what the law means.

We’ll use a person who makes $50,000 a year as a FedEx driver, working 50 hours a week, 2,500 hours a year. That’s $20 an hour. That driver doesn’t keep the full amount: As part of his work, he has to buy or lease a FedEx truck; pay for insurance, gas, tolls, maintenance, a uniform—and he cannot drive a route for anyone else. He nets much less than $20 an hour.

A major court ruling held that FedEx “misclassified” their California driver, and should have treated this worker as an employee.

That follows traditional “wage-and-hour” law. (I’m good with the ruling; it addressed an abuse of independent contracting.) It means that 10 out of those 50 hours of week should be paid at overtime—and the company should pay for its equipment, not the worker.

But here’s how AB-5 broadens that concept. Let’s say Google has a project on artificial intelligence, and wants a worker to sign on for a one-year gig, paid at a fee. Since the worker is involved in the usual course of Google’s business, and since the work is controlled by Google, this worker must now be treated as an employee. I’ve highlighted two key elements of the AB-5 law—course of business and control— to show how the law works.

Okay, that sure looks like short-term employment to me.

But here’s the rub (I’m using an illustration from my employment law class):

As a rule of thumb, work classified as “employment” costs 40% more than the same work classified as “independent contracting.”

Let’s use the $50,000/year figure again. Now Google will pay $70,000 for that work: This includes the employer share of Social Security taxes, unemployment insurance, worker’s compensation insurance, health insurance, paid leave in California (there is more).

In general, this looks good to me— but it’s also true that AB-5 will probably cause some work providers to do less in California. To keep it simple, the AI job might go to Texas, or India—and the worker in my example will not have work.

My friend Lisa points out that the poverty level for a family in California is $84,000 per year—why shouldn’t a worker be classified properly, earn overtime, have some insurance, and have the work organization pay toward Social Security. All good points.

My friend Craig says this is hard on business—and really hard on smaller firms. California is expensive. This will be a job killer. I share this concern.

Okay, is there a better way? Maybe. Two labor economists (both professors) have advanced the idea of “dependent contractor.”

Take the Google story above. They would retain contractor status, but as they worked, Google would be required to pay into Social Security and pay for part of health insurance—but not pay overtime.

In general, I think that’s a useful idea— but it comes from academia, so it is not likely to have much traction in the “real world.”

Is There a Right to Be Homeless?

President Trump is visiting California today to highlight homelessness. It’s rare for a president to lift up this issue. But it is also rare to consider an executive order that would forcibly remove homeless people to a large empty space, presumably some distance from a downtown area. Reportedly, the president is considering this as an option.

In response to growing camps of homeless people, cities have enacted bans on these encampments. The Ninth Circuit ruled last year against a Boise homeless camp ban.

One feature of the ban is to criminalize living in a banned encampment.

The federal judges wrote, “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

The court said if a city doesn’t have enough shelter beds available, enforcing a camping ban like Boise’s violates the constitutional ban on cruel and unusual punishment. Boise is contesting the ruling, which could end up before the Supreme Court.

President Trump’s interest in forcibly moving homeless people to a distant camp is reminiscent of the forced relocation of 117,000 Japanese Americans to camps located in the high deserts of western states. This was accomplished by an executive order from FDR. Until last year, the legal precedent upholding the forcible relocation of Americans was still good law (Korematsu v. U.S.). However, with Anthony Kennedy now retired and Brett Kavanaugh in place—a strong proponent of executive power— the overturning of that precedent could be reconsidered.

Pregnant, Seeking Work, but Not Applying? The “Futile Gesture” Doctrine

Suppose a woman is finishing a degree program at about the time she becomes pregnant. She’s been externing in a dental office— a fancy term for on-the-job training, no pay, but a real possibility of being hired.

Her job prospects look good until co-workers notice her open purse has prenatal vitamins. The gossip mill cranks up the news that the extern is pregnant. The main point is that these future co-workers and the office manager say they don’t to hire someone who is about to take pregnancy leave and create a scheduling strain on them.

If there is a job opening, keep it available for someone who is not pregnant.

This happened to Ada Abed. She heard all this. She asked if a job would open after she completed her externship and was told “no.” But a job did open. She did not apply for it, claiming it was futile to do so—she’d never be hired.

Does she actually have to apply as a condition for her pregnancy discrimination lawsuit?

A trial court in California said yes and dismissed her case.

In 2018, an appeals court said the lower court misapplied the “futile gesture” doctrine.

Here is what the court said:

As the Supreme Court recognized, an employer can discourage a potential applicant not just by making explicitly discriminatory statements but also “more subtly by its consistent discriminatory treatment of actual applicants, by the manner in which it publicizes vacancies, its recruitment techniques, and its responses to casual or tentative inquiries.” (Ibid.) Abed has presented evidence that because she was pregnant she was falsely told that no position was available in the Napa office. In our view, this is enough to support a claim under the FEHA (Fair Employment and Housing Act, a discrimination law). Employers who lie about the existence of open positions are not immune from liability under the FEHA simply because they are effective in keeping protected persons from applying.

Successful Artificial Womb Advances the Frontiers of Birthright Citizenship

In July 2019, a team of medical scientists published this stunning research finding: CONCLUSION: For several decades, there has been little improvement in outcomes of extremely preterm infants born at the border of viability. In the present study, we report the use of artificial placenta technology to support, for the first time, extremely preterm ovine fetuses (equivalent to 24 weeks of human gestation) in a stable, growth-normal state for 120 hours. With additional refinement, the data generated by this study may inform a treatment option to improve outcomes for extremely preterm infants.

***

In “The Unborn Citizen” I argue that Alabama's legal declaration that an “unborn child” has rights from the moment of conception means that that the unborn child also has birthright citizenship. 

My editors have pushed back—as they should— to say that my legal inference is not adequately supported. (The context for my research is whether the “unborn child” of an unlawful immigrant woman has birthright citizenship—and thus, whether her mother could legally be deported, and whether her mother is entitled to lawful employment to support her child.)

This is a new frontier, whatever our views may be. I welcome your feedback.

For now, here is my “medical research” answer to my editors:

In any event, reproductive technology will eventually vindicate my point that birthright citizenship can be legislated for an unborn child.  Artificial wombs are already being used for temporary periods when pregnancies encounter medical emergencies.  Even in that short time when an unborn child is transferred to an external machine, one can reasonably say that the child is born provided that it meets medical criteria for viability. When this technology advances to the point that an in vitro embryo can be entirely gestated in a machine, the definition of “birth” and “born” will likely be the subject of serious policy debates. Does the unborn child’s mother have any right to terminate this extracorporeal gestation— and going further, does this unborn child have a right, independent of her mother, to medical care?  

For now, Alabama has implicated in utero birthright citizenship by erasing the line between conception and birth, and treating the former the same as the latter for purposes of creating a host of undefined constitutional rights that await further explication. In its abortion law, Alabama defines “unborn child” and “woman” without any limitation— in particular, without restriction pertaining to alienage. 

Is a Weather Forecaster Protected by the First Amendment?

No weather forecaster has been fired for refuting a false claim about a hurricane forecast. That could change: President Trump and his Secretary of Commerce, Wilbur Ross, have considered firing top employees at NOAA. The apparent reason is they publicly contradicted President Trump’s claim that Hurricane Dorian might hit Alabama.

The man in the middle is Dr. Neil Jacobs, the acting administrator of NOAA. The Secretary of Commerce instructed Dr. Jacobs to fix the agency’s perceived contradiction of the president.

Dr. Jacobs objected to the demand and was told that the political staff at NOAA would be fired if the situation was not fixed. These officials can de dismissed at will by the president.

That would be the end of the story, except that they were doing their jobs, they were not making a politically-motivated hurricane forecast, and they do not want to undermine the public’s trust in the National Hurricane Center’s warnings.

If he is fired Dr. Jacobs would have a strong First Amendment case.

There is whole category of First Amendment cases involving public employees. The courts use a “balancing test,” weighing the importance of the speech of the employee against the government interest.

The Trump team would either say (a) the forecast included Alabama, or (b) the lead NOAA administrator violated a presidential order, or (c) the NOAA leader made a political statement in contradicting the president, not a weather statement.

I will let you judge the believability of any of these reasons.

The employee speech side would be evaluated on three dimensions: (a) content, (b) form, and (c) context. If it’s an employee grievance—criticism of the workplace— Dr. Jacobs would lose. If it’s a political statement, Dr. Jacobs would likely lose, too: He is not entitled to use his position to state his political views.

Here, the content corrected an illegal alteration of a weather map (Sharpie-gate). The form was an official statement that didn’t say the president was wrong, just that Alabama was not in the hurricane’s path. The context is to make sure the public listens to NOAA, not President Trump, for hurricane warnings.

There is potentially more at stake here than a silly, sharpie alteration to a weather map. Labor economists could be fired for reporting bad employment numbers. Environmental scientists—already under fire—could actually lose their jobs over publication of research in a peer-reviewed scientific journal. The list goes on.

What is at stake here is whether an authoritarian president can fire people who do their jobs as science informs their profession. President Trump’s assault on truth is a Category 5 storm.

Court Says It’s OK for a Male Boss (Donald Trump) to Kiss a Female Employee (Campaign Staffer) Without Permission

Alva Johnson (in photo) was an early campaign staff member for Donald Trump.

Ms. Johnson alleges that Mr. Trump forcibly kissed her in a campaign RV in August 2016. There were several witnesses. Johnson sued under a tort for assault. 
Note: Civil assault is defined as any unwanted touching that causes harm, and forcible kissing is an increasingly common way that women are fighting back against men who cross the line with them. Damages can be nominal or higher, based on emotional harm or physical problems, such stress symptoms.

On Friday, this lawsuit ended.

U.S. District Judge William F. Jung closed the case, saying that the pleadings present “a political lawsuit, not a tort and wages lawsuit,” but gave leave for Johnson to refile.

Ms. Johnson said: “I am facing a judge who openly questions whether the kiss is worthy of a federal lawsuit and has determined that Mr. Trump’s history of such behavior is not relevant, and I've endured ongoing threats to my safety. I’ve decided for the sake of my family that I will not continue with the case at this time," Johnson said in a statement. "Let's be clear, I reject the false narrative that they did nothing wrong. But it is difficult to obtain justice against a person with unlimited resources and a judicial system that has so far refused to hold him accountable."

***
Charles J. Harder is the Neanderthal lawyer who represents Mr. Trump in this matter. 
He said that Ms. Johnson should reimburse their attorney fees and costs, and said they are considering whether to take legal action against her for allegedly violating a nondisclosure agreement she signed when she was hired in 2016.

Let us hope that if Mr. Harder has a wife and daughter, they are spared forcible kissing, nondisclosure agreements that green-light illegal behavior, and men like their husband and father who make a living by re-victimizing women.

Were You Born in the U.S. to Immigrant Parents?

Tomorrow, I will make a short presentation to a local civic group. My talk is "The Labor Origins of Birthright Citizenship."

If my audience is typical of Americans, 37% oppose the idea that a child of an illegal immigrant should have birthright citizenship.

So, here is a slide I will show.

I'll begin with me (lower-right): My father came to the U.S. illegally, on falsified papers. He never told me. He died as an American citizen, though in fact his citizenship was obtained fraudulently. Do you think he's unusual?

Then, we will look at more notable U.S. born citizens-- birthright citizens-- who were born to immigrant parents. If they're like me, they may not know while their parents are alive (or ever) if their parents came to the U.S. legally, or like my Dad, illegally.

Nikki Haley: Daughter of Sikh Indians.

Ray Kroc: Son of Czech immigrants.

Wong Kim Ark: Son of Chinese immigrants. His landmark Supreme Court case established that all people born in the U.S. are citizens, regardless of their parents' immigration status.

Steven Jobs: Son of a Syrian father who came to the U.S. from a refugee camp.

Colin Powell: Son of Jamaican immigrants.

Walt Disney: Son of a Canadian father.

Alex Rodriguez: Son of Dominican Republic parents.

The case against birthright citizenship is that children born in the U.S. to foreign parents are a drain on American society.

If that view prevailed, we might not have McDonalds. Or Apple. Or Disney. Or a Hall of Fame Yankee. Or a GOP leader. Or a Chinese laborer who was born in San Francisco, visited his ancestral homeland to find a wife, returned to the U.S., was denied entry and later admitted after the Supreme Court ruled in his favor. All we know about Wong Kim Ark is that he was a laborer. A welfare cheat he was not.

Labor Unions: Ten “Likes,” Five “Dislikes”

Labor Unions: Ten “Likes,” Five “Dislikes”

Likes

1.     Implemented 10-hour work day when shipbuilders union went on strike for grog during President Martin Van Buren’s administration in 1840. The workday had been 12 hours.

2.   40-hour work week, 8 hour workday championed by American Federation of Labor president, Samuel Gompers.

3.   Unions teach young people a valuable trade or craft. Want to make real money? Sign up to be a plumber, electrician, crane operator, etc. You will need to pass a rigorous aptitude test and also regular drug tests.

4.   Unions created a broad middle class in America, post WW II- through 1980s.

5.    When FDR imposed a wage freeze in WW II, unions started to bargain for non-wage benefits, called fringe benefits. No. 1 achievement: Health insurance, paid by employers!

6.   Unions (not all) allied with Martin Luther King in the civil rights movement.

7.    Unions have foreign policy principles. When the USSR invaded Afghanistan in the late 1970s and installed a puppet government, dockworkers refused to work on ships with cargo headed for USSR. Unions were ordered by courts back to work.

8.   Unions helped to bring democracy to Poland (Solidarity Now). This achievement has been lost to a rightwing autocrat.

9.   Unions made professional sports so much better by creating free agency, allowing your favorite team to rebuild in just a season.

10.                      Unions pushed for OSHA and worker safety.

Dislikes

1.     Unions were shamefully anti-immigrant. Just google Denis Kearney and the Workingmen’s Party of California. Awful. Fiercely anti-Chinese, anti-Japanese.

2.   Unions were major drivers of Jim Crow workplace segregation, from the 1890s-1960s. Again, awful—and widespread. Many unions had “sister” locals, code language for “colored” unions with lower wages, no seniority rights, etc.

3.   Unions were fat and sassy in the 1970s, contributing to the decline of American competitiveness in manufacturing.

4.   Unions have a history of corruption—mob ties (mostly gone today), political corruption (but not close to Donald Trump’s White House), and just recently, an FBI raid on the UAW president’s home.

5.    Unions haven’t done enough for women in the workplace. Many unions used labor agreements to marginalize women by denying them a union card—and thereby deny them access to work.

Passing Gas: Silent But Deadly for U.S. Workers

It is Labor Day weekend. Today, we take a brief but disturbing look at workers in the oil and gas drilling business. Their work-related mortality rate is five times the rate for all American workers.

From 2008 through 2017, 1,566 workers died from injuries in the oil-and-gas drilling industry and related fields, according to data from the U.S. Department of Labor’s Bureau of Labor Statistics. That’s almost exactly the number of U.S. troops who were killed in Afghanistan during the same period.

The Center for Public Integrity recently released a study on worker fatalities in the oil and gas fields. They told the story of Parker Waldridge, who recently burned to death in a driller’s cabin, known as a doghouse, atop the floor of Rig 219.

In my employment law class, we discuss a case involving two workers who were in the West Texas gas fields while they were maintaining drilling rigs. Storage tanks were next to the rigs. 

A cap on the tank failed but the workers could not smell or detect the capricious gas leak. Both were killed as they worked. The gas that was passed was silent but deadly.

Happy Labor Day? Not for all workers and their families.