Donald Trump in Germany

A friend asks whether Donald Trump would be to blame if harm came to people he targets, e.g., Muslims, Mexicans, the disabled, and women. It's a great question. For now, consider how Germany limits certain forms of speech. Section 130 of the German Criminal Code outlaws "incitement of popular hatred." This crime consist of inciting hatred against parts of the population. For example, it is unlawful to refer publicly to ethnic groups as "maggots" or "freeloaders." This does sound like something Donald Trump would say. New Zealand has a Racial Disharmony law. It sounds Orwellian, yes; and it makes it unlawful to publish or distribute "threatening, abusive, or insulting...matter or words likely to excite hostility against or bring into contempt any group of persons...on the ground of the colour, race, or ethnic or national or ethnic origins of that group of persons." These laws seem to deprive people of the right to be stupid-- even, if there is such a thing, a right to hate others. On other hand, what nation has done more than Germany to accommodate Syrian refugees? Do laws that criminalize hate speech lead to a more tolerant society? Donald Trump might be arrested in Germany under Section 130; in the U.S., he might be the next President. If speech laws slow or prevent the spread of hatred, should we consider how to adapt them to the American context-- or is this too PC? Personally, I favor some attempt to emulate the German model. 

In Defense of Limits on Speech

The repeated portrayal of Planned Parenthood as a killer and purveyor of fetal parts may have pushed a sick man to murder people in Colorado Springs. The LaQuan McDonald protests were peaceful, symbolic and an excellent example of voicing collective anger. Now comes word that a University of Illinois-Chicago student posted an online threat to shoot and kill 16 white students at the University of Chicago. He said: “"This is my only warning. At 10AM Monday morning, I'm going to the campus quad of the University of Chicago. I will be armed with an M-4 carbine and two desert eagles, all fully loaded. I will execute approximately 16 white male students and or staff, which is the same number of time McDonald was killed." His online post was specific and indicative of intent to kill-- though he might say, later, it was meant as symbolic expression. The heated rhetoric on campuses today (and politics, more generally) show some tendency for inciting forms of speech to have dangerous consequences. My Notre Dame Law Review article (see here) concluded: “My research shows that when a university makes a reasonable prediction that students or faculty would feel intimidated by personally abusive or demeaning speech, courts support actions that promote a campus climate of tolerance."

Ruling on “Fried Chicken and Watermelon”: Do Picketers Have a Right to Express Racist Views?

When workers strike, the law affords their speech a high degree of protection. Often, picket lines— invariably in public spaces, such as sidewalks and roadsides— become raucous, with taunts directed at replacement workers. When taunts become physically intimidating, a striker loses protection of the law. But what if a striker calls replacements “niggers”? In a 2006 decision, Airo Die Casting, the NLRB said that the speech was protected. In 2011, a different case arose. Cooper Tire locked out employees, and hired replacements. The company fired a picketing white worker for making references to "fried chicken and watermelon" as a group of mostly black replacement workers crossed the picket line. Cooper said it must provide replacement workers with an atmosphere that is free of racial harassment. The case is now heading to the NLRB in Washington D.C. The United Steel Workers points out that a ruling against the picketer here could mean that future pickets who shout "fuck" (and equivalent expressions) could be fired for sexual harassment. Lost in the discussion… the divisive effect of a bargaining lockout. The company did this because the union failed to agree to a contract—and the company contributed to a racial divide by locking out a mostly white workforce and replacing them with a mostly black workforce.

What Is “Anger Security”? How Ideologues “Think” Today

Last week, I was interviewed by the UIUC Media Bureau, and shared my professional views on Syrian immigration (see here). Today, I received a harsh and personal e-mail from someone on the political right. Earlier this year, I received even harsher emails from people on the opposite end of the political spectrum from today’s correspondent. These people were upset with my view that the First Amendment does not protect faculty speech that directs personal intimidation to a group of students (e.g., in that instance, Twitter attacks that framed Jewish college students as future killers). Well, here is today’s note. I have emphasized the author’s Freudian slip. Below it, I share an example of anger from the political left:

Michael, Your article on the governor's powers to allow our disallow Syrian refugees to take up residence in their respective states was informative.  However, your closing statement on the "wall of fear" was unnecessary and uncalled for.  It is this exact level of liberal lunacy that public schools and universities try to indoctrinate our children with that is the real reason this country is going to lose its strength anger security.  My guess is that you are tenured and are not concerned about consequences by regurgitating garbage liberal agendas to our youth.  Which brings up another atrocity in the university setting which is that of tenure.  You should be allowed to instruct our children based on your performance and ability and not on your amount of time held at an institution spent indoctrinating.  We are in an education crisis with the likes of instructors like you.  We don't pay for you to educate our children with your opinion.  We pay you to educate our children with the facts.  Extremely fed up.

What a miserable shyster you are. You, Wise, Chris Kennedy, and Cary Nelson are utterly depraved.

Native American Casinos and Union Avoidance

Native Americans are among the nation’s most disadvantaged and oppressed groups; so, it makes little sense that they are allied with House Republicans. But they are united in a bill to remove Indian casinos from the jurisdiction of the National Labor Relations Board. Earlier this week, the House passed a bill on a 249-177 to prevent the NLRB from hearing petitions for union elections or claims of unfair anti-union conduct filed by workers at tribal businesses on Indian land. By the way, Indian casinos pocketed $28.5 billion in gaming revenue in 2014, according to the National Indian Gaming Commission…. Not enough to share, however, with their mostly Native American workforce. 

Is Your Work Schedule More Important Than … Everything Else?

The Wall Street Journal has a techie article that celebrates the “uberization” of more traditional types of jobs. Author Christopher Mims reports on Gigwalk, “which started out as more or less the Uber of people who check on the work of merchandisers like Mr. Gainer.” Mims gushes: “The result inside Crossmark, which employs tens of thousands of associates, is something unexpected but surprisingly effective. It is a labor marketplace rapidly taking over tasks that used to be accomplished by traditional management. Just like Uber, the result is a flexible pool of employees who have some say over when they work—and who are tasked—according to their location, skills and availability.” Certainly, the freedom to control one’s schedule is important. But what is lost in the transaction? 1. Co-workers. 2. Training and development. 3. Employer sponsored health insurance. 4. Minimum wage. 5. Overtime pay. 6. Paid vacation. 7. Sick leave. 8. Social Security, unless you, the “contractor," pay all of the work-related contribution. 9. Employer retirement plan. 10. Employer profit-sharing plan. 11. Access to a union. 12. Worker’s compensation, when you’re injured on the job. Likely, I forgot other important elements of a traditional job. The uberization phenomenon has particular appeal to younger workers, who sometimes cannot see that, down the road, their bodies will falter or fail, their income will be inadequate, their bargaining power will shrink to nil—and their cell phones will not provide the companionship and support of a work culture and colleagues. 

Don’t Like Unions? You Might Like This

You probably have contracts for credit cards, cable TV, cell phone, mortgage—and employment— where you are required to waive access to courts and agree to arbitration. The company with superior bargaining power gets to dictate terms. Worse, its competitors have the same contracts. Compounding this, these mandatory agreements often require you to waive a class action case. So, suppose you’re getting dinged for $100 in one of the relationships, and you’re unhappy about it. Answer: take it to arbitration. Right … you’ll hired a lawyer for several thousand dollars to win your $100 case. That’s where class actions can be useful. Most courts uphold waivers of class actions. Little guy loses here. Now, the NLRB has ruled (again) that American Express Co violated the concerted activity provisions of the National Labor Relations Act by requiring requiring workers to waive access to class actions in mandatory arbitration cases. It’s a win for employees at American Express, who were contesting the company’s failure to pay for overtime and meal breaks. The ruling has potential to be a win for everyone who is forced to waive a class action in arbitration. American Express will appeal; and they will likely win because of the caselaw in this area, which has lost sight of the fact that arbitration is supposed to a substitute for a judicial forum— and not a kangaroo court. 

Remember Rashidi Wheeler

Rashidi Wheeler died while playing football for Northwestern University. During a “voluntary” practice that may have violated NCAA rules, he was running rigorous sprints with a fellow player on a Northwestern practice field. A videotape caught the moment he collapsed. At the time, a Northwestern coach was seen on the tape timing other players. According to Linda Will, Wheeler’s mother, her son died because Northwestern did not having qualified trainers and medical staff on hand to treat his fatal asthma attack. Wheeler had a lifelong problem with asthma, a condition that Northwestern knew or should have known.

Wheeler’s mother sued the school for her son’s wrongful death. Northwestern stonewalled her attempts to find answers to her questions. Who scheduled the “voluntary” practice? Why was no medical help present if players were expected to practice? Why were Rashidi’s medical records destroyed? Years later, Northwestern offered Will $16 million to settle her lawsuit. She refused it. In an L.A. Times article, she said: “Everyone’s entitled to their day in court. Northwestern doesn’t want to go to court, because it doesn’t want all of the atrocities and pain and suffering it inflicted upon my Rashidi to be revealed. I’m not willing to devalue and diminish Rashidi by shutting up and taking the $16 million.”

Linda Will lost her case when, in an extraordinary ruling, a Cook County judge appointed a guardian for her other children and the guardian accepted the cash settlement. Will left the courthouse embittered: “I will fight until I obtain justice, and then I'll go away and shut up.” Ten years have passed since the court imposed the settlement. Northwestern has not answered any questions nor been held accountable. Soon, Illinois will play Northwestern in Chicago. As it should be, Illinois’ failure to shield football players from abusive coaching and medical practices will likely be part of the story-line for the game. Pat Fitzgerald was a defensive backs coach in 2001 for Northwestern, the year that Rashidi Wheeler, a strong safety, died. Was he the coach timing wind sprints on that videotape? Is the tape available? Hopefully, a brave reporter will ask Coach Fitzgerald, “What really happened to Rashidi Wheeler, and what can you do to provide answers?”

Fear at Work: The Impact of One Harassing Incident

Recently, ProfLERoy posted a story of a federal court ruling that dismissed an employment discrimination lawsuit from a woman who was “flashed” by a male co-worker. Due to privacy laws, I am redacting and revising a student’s account of sexual harassment, except for the student's core reactions. The contrast to the court’s opinion in the flasher case speaks for itself. “I was working in retail.  One day, I was putting away merchandise when a man walked past me and said something. I didn’t quite hear him, so I turned to see if he needed help. He repeated what he said but it was not a question about the merchandise, it was a sexual comment. I was in shock. I felt so violated. I quickly walked to receiving, the only place in the store that customers were not allowed, sunk to the floor and cried. . . . At the time, I accepted that. After that incident, I felt anxious at work for weeks. I felt like every time I was alone, someone was going to sexually harass me. That was when I realized that I didn’t want anyone else to feel that way. I wanted to help people in my workplace feel safe.” How I wish this student was the judge in the Mississippi flasher case.

“Hawk” Hazards: Will You Be Injured? Or Run Someone Over with Your Car?

The UIUC campus has more and more students with IO Hawks running around. These are akin to electric-powered skateboards. Here’s the problem: Students are using them in congested areas, such as hallways that are mostly filled with others who are walking with 20-30 pounds of books on their backs. These walkers cannot adjust quickly-- nor can disabled or older people. Doors open suddenly. Real possibilities for injuries here. I have not encountered a reckless Hawk rider; but the whole point is to move faster than the crowd. So far, I have not encountered multiple Hawkers in the same hallway or crowded sidewalk … but that is my real concern. We already have bike-car-pedestrian conflicts on campus-- on rare occasion, with tragic outcomes. Now this? I sent campus safety a simple message expressing these concerns and received a thoughtful reply.

Breaking Illinois' Impasse: Listen to Downstate Republican Lawmakers

The best article on the Illinois impasse is written by Tom Kacich, here.. He explains that downstate Republican lawmakers are bracing their supporters for a tax hike, and for unavoidable assistance to Chicago Public Schools. And they note that although it might feel good to make Chicago the 51^st state, the reality is that we all need Chicago to avoid a disaster. These pragmatic lawmakers go on to say that a compromise won’t have any take-aways from public sector unions. So far, it sounds like it’s all-Democratic. Not so. They believe that workers comp will be seriously overhauled. Ditto tort reforms. They suggest that term limits and/or legislative redrawing of districts is on the table. Judge for yourself. This looks like a compromise; it entails structural reform; it addresses the near-death spiral of the State’s finances; it doesn’t blame one group for all the problems; and it is painful for everyone, including lawmakers. I vote yes.

Menorah Vandal Case Closed … Questions Open

As of 11:00 a.m. this morning, the TV monitor in the Champaign County Court showed an 11:00 a.m. hearing for Max Kristy, charged with a Class 3 felony for vandalizing an 8-foot tall menorah at a local Jewish Center. The case was never called. That’s because it was quietly settled at the last minute. Apparently, Kristy pleaded down to a misdemeanor, with 25 hours of community service. The case is closed, but these questions are now open. 1. Was Kristy overcharged with a felony? He was known to be a first-time offender, and 20 years-old. 2. If he was charged properly, why did the case settle so much in Kristy’s favor? Why not more service? Why not a short, suspended sentence, with no time served but a stronger record? Why not an apology to the Jewish Center? 3. Why were members of the Jewish Center not consulted for their view, as is often the case where there are victims in non-violent offenses? 4. Why is the truth suppressed in this case? Kristy said he was drunk at 6:00 a.m. and was simply giving a Jewish friend an 8-foot tall menorah for a gift. Why wasn’t his version of the facts put to a cross examination, just for the sake of exposing this implausible story? 5. Why is vandalism of a religious symbol treated like it's vandalism to a street corner stop sign? Was this a crime against an 8-foot tall piece of metal, or did it have symbolic significance? We’ll never know. The menorah in this picture sheds light. The settlement in this case casts a shadow.

The End of the Employment Relationship? Research Update

Want a ride from the airport? There’s an app for that. Someone to visit with your elderly parent? There’s an app. And so on. I am collecting more than 1,000 court cases since 2000 involving claims by workers that they were misclassified as independent contractors—drivers, cable installers, security officers, exotic dancers, janitors … and others. Early results show that workers win most of these lawsuits—meaning they must be paid for overtime, minimum wages, out-of-pocket expenses (e.g., gas money for drivers). But these outcomes don’t seem to be changing the inexorable drift away from the employment relationship to app-driven “project” work. Downsides? 1. These workers are on their own for Social Security taxes—no employer contribution. Expect even more under-funded retirements. 2. No workers comp if an individual is hurt while doing her job. 3. No employer-sponsored health insurance. 4. No possibility to form a union. And then there are less visible effects. We will have fewer lawyers, accountants, doctors, nurses, carpenters, plumbers, electricians and other craftspeople and professionals who are selected, trained, weeded-out, promoted, and socialized by an organization. Instead, various crafts, professions, and occupations will be reduced to one-off exchanges, conducted on our cell phones. The employment relationship is not part of the law of nature. My hunch is that employment will recede along the lines of unions. The question is: Will we, as a society, recognize the long-term damage that results from a casual form of assigning work?

Crain’s Chicago Business: Rauner “Union” Plan Would Save 0.74%-- “Not Much More Than a Rounding Error”

When Bruce Rauner promised to “shake things up,” he really meant to “destroy unions in Illinois.” One key idea in the turnaround plan is to eliminate prevailing wage. This term means that public construction contracts must pay the equivalent of union wages. In theory, the governor’s argument makes sense: Illinois seems to be overpaying. But Crain’s Chicago Business says: “just for the sake of argument, let's take the proponents at their word on this particular topic. A June, 2014 study conducted by the Anderson Economic Group for the far-right Illinois Policy Institute, the Illinois Association of School Boards, the Illinois Chamber and the Illinois Black Chamber found that eliminating the prevailing wage would've saved local school districts $126.4 million in 2011 (that's in 2013 dollars, by the way). According to the state's Commission on Governmental Forecasting and Accountability, local school districts extended (billed) $16.4 billion in property taxes in 2011. Adjust that 2011 amount to 2013 dollars to even it out with the Anderson study and we get $16.98 billion. So, even if every single local school district throughout Illinois immediately stopped paying prevailing wage rates on construction projects (not gonna happen) and even if eliminating the prevailing wage does indeed save as much as the Anderson study projected (doubtful), school districts could've saved a grand total of 0.74 percent of their property tax budgets, which is not much more than a rounding error. Now figure, in reality, savings of at most half that amount and we're looking at about a third of a percentage point. That's not even a rounding error.” Again, this analysis is from a major business paper—not a shill for labor. The article is here. 

Halloween at University of Louisville: Trick or Treat?

The president of the University of Louisville and staff members are pictured in a “Mexican costume” for Halloween at a party held on the school’s property on Wednesday. Opposing the event, Olivia Krauth, editor of the Louisville Cardinal, the school’s newspaper, said in an op-ed: “The president of a school that prides itself in diversity opted to dress himself and his staff as a culture for Halloween. Not just a culture, but a minority that is frequently faced with prejudice. Not just a culture, but a completely wrongfully depicted culture according to people who are actually in that culture." Posts to her editorial express mixed views— mostly in disagreement. For example: “After seeing the school knuckle under to the PC knuckleheads, I know who’s not getting any donations from me.” And: “What exactly is … negative about this stereotype?” The U of L president—who spent last week defending his star basketball coach over allegations that basketball recruits received tricks and treats from hookers paid by a coach at a university dorm— added to the university’s image problem.

Arbitration: The Fourth Branch of Government

We all know that federal and state governments divide and share powers. The system is called “checks and balances,” and it regulates powers between the legislative, executive and judicial branches. Arbitration is becoming a fourth branch. Whether you’re an individual or small business, you are increasingly required—as a condition for doing business— to take any dispute to arbitration. Did your credit card company mislead you, and it’s costing you money? Tough luck. There is no class action lawsuit to address your point. You must arbitrate it on your own. Is your cable company screwing you, too? Take it to arbitration. Oh, your employer is requiring you, too, to arbitrate your disputes— as are “non-employers” such as Uber who think they have no obligations under employment or insurance laws that were enacted to benefit you. The bottom line is that the laws that the legislature passed to protect you, and that a president or governor signed, and that provide for courts to adjudicate have been hijacked by large corporations who run their own “justice” system. For more, read here. 

When an Employer Wellness Program Seeks a Person’s Medical/Genetic Information: New Federal Rule

The EEOC (Equal Employment Opportunity Commission) has issued a new rule as part of its jurisdiction over GINA (Genetic Information Nondiscrimination Act). The issue: Some employers pressure employees to share medical information about a spouse as part of an employer sponsored wellness program. Here is what the federal agency now says: “[The] EEOC's proposed rule addresses the extent to which an employer may offer incentives for an employee's spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program, when he or she participates in the employer's health plan. The proposed rule clarifies that an employer may offer, as a part of its health plan, a limited incentive to an employee whose spouse is covered under the employee's health plan; receives health or genetic services offered by the employer, including as part of a wellness program; and provides information about his or her current or past health status. The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value). The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled." For more information, see here. 

Would You Risk Your Job to Help a Choking Child?

Qwasie Reid was confronted with this stark question last Wednesday. He and his partner worked as EMTs. They were transporting a nursing home patient. Suddenly, a man flagged them down. He said a girl was choking on her lunch. Reid violated company policy, which strictly forbids stopping for anyone except for a patient who is dispatched (and covered by insurance). He stopped, anyway. In this news story, he said: "She was blue in the face and lips. No response. Unconscious unresponsive." He administered CPR for four minutes until more help arrived. The girl is brain dead, though not for lack of his heroic efforts. Reid? He’s been fired. His view? "As an EMT, I don’t care about your money … There was a child choking. I’m worried about them firing me, but I did a good deed. I just feel like I’m being penalized for something and I haven’t done anything wrong." Thanks to one of my students for the lead on this. PS: In most states, Mr. Reid has no effective legal recourse. In Washington and a couple of other states, there is a controversial tort that would treat this situation as one where an employer wrongfully terminated an employee for trying to save a life. The controversy is that courts generally do not overrule employer judgments in these matters.

Female Co-Worker Gets the Shaft at Work

Any man who shows his penis to a female co-worker should expect to be fired for doing so … except in Mississippi. Fred Tate was hired by Nissan and did exactly this to Joslyne Davenport. Ms. Davenport did not report the incident for several months. Never mind that she might have been intimidated by the flashing episode; or that she worried that if she made waves at work, she would be fired; or that no one would believe her story. Eventually, she sued, claiming sexual harassment. Federal District Judge Carlton Reeves has dismissed her lawsuit, essentially reasoning that a one-time penis show is not sufficiently severe to alter the conditions of work for a female co-worker.  Even worse, the decision shifts the blame to Ms. Davenport for waiting to report. Well, she was right, after all— the victim is to blame. For this appalling decision, read here. 

Free Speech? Facebook and the Murder of Richard Lakin

Richard Lakin, a retired school principal, used his Facebook page to show an image of Israeli and Arab kids hugging under the word “coexist.” Nonetheless, he recently sued Facebook for inciting violence when he saw that Facebook published Palestinian postings of caricatures and videos that demonized Israelis, as well as instructions on “how to stab a Jew.” Two weeks ago, Lakin was riding on a bus in Israel when a Palestinian shot him in the head and then stabbed multiple times— just as the Facebook videos instructed. On October 25^th Mr. Lakin died from his wounds. His family—and his lawsuit— survive him. For details, read here.  

Jury of Your Pumpkins?

Can you be tried by a jury of pumpkins? The issue arose in Zabin v. Picciotto, 896 N.E.2d 937 (Mass. 2008). Jurors were serving in court on Halloween. They asked if they could wear costumes. The judge approved provided that counsel for both sides also agreed to allow the holiday costumes. They agreed. After the defendants lost the case, they appealed on grounds that the “costumes turned the trial into a circus and denied their rights to due process.” The Massachusetts court of appeals ruled: “With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings. However, as to the defendants' claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.”

If Teachers Lose Their Supreme Court Case: Another Solution?

It appears likely that teachers will lose their important (and pending) Supreme Court case on enforcing agency fees (also called mandatory dues). This is based on the vote in an analogous case, Harris v. Quinn (5-4 vote). What then? Our nation’s collective bargaining laws are founded on the principle of exclusive representation. So, if a teacher’s union represents 100 teachers in a given district, that organization must represent all 100 teachers, whether they pay dues or not. Obviously, not all 100 teachers will have the same interests—some will value retirement issues, others will focus on the pay scale, others will focus on teacher evaluations, and so on. Some teachers will not want any representation—but under our labor laws, they are stuck, as long as 51 teachers support their union. Some European nations have minority representation. If 30 out of 100 teachers favor the Sunshine Union, the employer must bargain with the Sunshine Union. If another 25 teachers favor the Flower Union, the employer must bargain with the Flower Union. If the remaining 45 teachers want no union, the employer has a free hand to deal with those individuals as the employer sees fit. The main disadvantage of the system is that is leads to unequal employment conditions for a group of employees with a common employer. But the main advantage is that it allows for individual choice—precisely what Ms. Friedrichs is seeking in her lawsuit to be free from union dues. Experience shows that the most effective union wins the greatest support from employees, acting as a brake on having too many unions.... But to the extent that the real agenda with this lawsuit is to do away with teacher unions, that idea is fitting for totalitarian societies where employees have few if any rights-- an "un-American" idea.

Rebuttal to My Post About Gov. Rauner

Pam Harris and I disagree, but I am compelled to publish her very thoughtful rebuttal to my previous post on this subject. Published with due respect, Prof. LeRoy. From Pam Harris, lead plaintiff in Harris v. Quinn (recent Supreme Court case): "I respectfully disagree. I think Governor Rauner has great respect for teachers and sincere concern for our childrens' education. It's the SEIU and AFSCME and their previously negotiated contracts that has likely motivated our Governor to submit the amicus brief on behalf of the Plaintiffs in Friedrichs. Home daycare providers are independent small businesses and home care workers work for the individual who is disabled or elderly in their own home. Neither work for the state and many believe the union is an unnecessary intrusion. Taking public dollars intended to provide care for children of low-income families, the disabled and elderly, and giving it to the unions, is reprehensible. It is time for SCOTUS to take a good hard look at Abood and how far public sector unions have gone astray. Unions insistence for exclusive representation, fair share and labor peace simply does not apply to home daycare or home care providers."

Fired for Refusing On-the-Job Adultery: A New Tort

A business owner—also a married man— demanded that a female employee have sex with him. Nothing new here. She refused on grounds that she would aid and abet adultery. That’s a little unusual. In the more common case, the subordinate alleges quid pro quo sexual harassment—and wins, if there is proof. But often, the remedy is reinstatement and lost wages. In this new case, the subordinate claimed that Virginia’s public policies on marriage are so paramount that a private employer cannot fire an employee for refusing to aid and abet adultery. A Virginia federal court has now ruled that state law recognizes a “public policy tort for wrongful discharge” that applies to this situation. What’s the difference between this tort case (civil wrong) and the more typical case involving a sexual harassment claim? In a word: Money. Tort damages can include a punitive element, to make an example of a bad actor. In Virginia, where religious values run deep, this might be costly for the spurned employer.

Missing-In-Action, Gov. Rauner Surfaces at U.S. Supreme Court

While Gov. Bruce Rauner is unable to propose a budget until state labor laws are completely gutted of union protections, he did find time to file a “friend of the court” brief with the U.S. Supreme Court a few weeks ago. In it, he backs a California school teacher who is arguing that she has a First Amendment right not pay union dues (Friedrichs v. California Teachers Association et al.). In his brief, he lays all of the blame for Illinois’ budgetary woes on public unions: “These union benefits have contributed to a remarkable structural budget deficit and to repeated credit rating downgrades in Illinois. In fiscal year 2015, pension costs attributable to the general fund exceeded $7.5 billion, or about 24% of state-source general fund revenue.” He doesn't mention that Illinois lawmakers, starting in the mid-1990s, failed to make required pension contributions—and over the years, these pension-skipping budgets snowballed the pension deficit. Democrats and Republicans are responsible for this, preferring to start new spending programs (Democrats) or walk away from legal funding commitments (Republicans). That's the Illinois way to make a budget. Gov. Rauner has found the real villain: it’s those selfish public school teachers who are corrupting Illinois. Like this evil IEA member on a recent field trip to indulge her selfish interests.... 

Where is Graduation Gap between Whites and Blacks Largest? Wisconsin

This week our employment law class will read and discuss Griggs v. Duke Power. It’s the single most important Supreme Court case in employment law. In 1965, Duke Power required employees to have a high school diploma; but due to segregation in schools, blacks had a 13% graduation rate compared to whites with 34%. Thus, a high school diploma was a significant barrier that operated disproportionately against blacks. The Supreme Court said that an employment criterion, neutral on its face but disparate in its impact by race, was unlawful unless the employer could show a business justification. (Most of Duke’s successful white employees had no high school diploma, so in 1965, that qualification standard did not relate to job success.) Fast forward: Whites in Wisconsin have a 93% graduation rate; blacks have a 66% rate. This great inequality has serious implications for long-term job- and income-inequality. Whatever the cause(s) of the disparity, it is a disaster for all of us. Details are here.

Can Boss Call Employee “Asshole” on Facebook? Yes, But…

Employers enjoy a wide range of freedom of speech; but they need to watch out for the following. Consider Teresa Harris’s case (Harris v. Forklift Systems, Inc.), which went to the U.S. Supreme Court. Her boss called her a “dumbass woman.” He also told crude jokes. The high court reinstated a case that had been dismissed, and basically told the lower court to reconsider whether expressions such as “dumbass woman” create a hostile work environment. Different context, but in another case a company president repeatedly referred to his employee, Mansour, as Manny. Mansour asked him politely to use his correct time-- more than once. After a while, Mansour sued claiming national origin discrimination. He won a $90,000 judgment due a work environment that was hostile to Egyptians. The boss denied any hostile intent. The court said intent didn’t necessarily matter: a reasonable Arab would find this insulting and interfering with work. Lesson: Calling an employee an “asshole” won’t create liability; but the boss has to be careful not to append discriminatory names and stereotypes to this common insult.

Major Facebook Decision Is In: Boss Can’t Fire You for “Asshole” Comment

Recently, this blog reported on a key ruling by the NLRB that ruled in favor of a waitress who called her boss an “asshole” on Facebook. The cook liked the post. Both employees were fired. A federal appeals panel voted 3-0 to uphold the NLRB. Their core reasoning: “Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer’s brand. The Board’s decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modernday social media use.” So where is the line? An employee can be fired for a social media post that disparages the employer’s product: “an employer has a legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation . . . from defamation.” Read the case is here.

Two Corporate Leaders Face Federal Indictments … and the Phony Meme on Union Corruption

You don’t want to be Barbara Bennett-Byrd right now. Or ever. She worked as an executive for SUPES, a highly touted private-sector educational consulting firm. When she was hired to be the CEO of the Chicago Board of Education, she received secret promises of $2.3 million in kickback money from her SUPES bosses. To get the money, she steered a $20 million no-bid consulting contract to her former employer. SUPES, by the way, has an all-star board of trustees that included Bruce Rauner at the time that SUPES won the grant. Bennett-Byrd pleaded guilty to federal corruption charges this week. She will do a lot of talking to U.S. attorneys in the comings weeks and months. You also don’t want to be Don Blanckenship. He’s the former CEO of a large coal mining company, Massey. He is on trial for violating safety rules that led to an explosion that killed 29 miners in West Virginia. He’s the same CEO who bought—that is, contributed to— a state supreme court justice for $5 million. That justice cast the deciding vote in a civil lawsuit that originally led to a $50 million judgment against him. He made a ten-fold return on that investment; but now, tape recordings of his meetings with company safety managers show that he ordered officials to bypass safety procedures. He faces 31 years. What makes these two stories so interesting is the unions who dealt with these CEOs—the Chicago Teachers Union, and United Mine Workers—are frequently portrayed by Gov. Rauner and Blanckenship as corrupt. The facts show otherwise. See here.

Is Alcoholism a Disability under the ADA? The Fired USC Coach

Does the ADA protect employees with substance abuse problems? It depends. Working against ex-coach Sarkisian, the ADA allows employers to hold employees who are alcoholic to the same standards of performance and conduct applied to other employees. So, if it is true that the coach was drunk in public and brought disrepute to the football program because of his condition, he could be fired for the underlying conduct. EEOC Guidelines state: “This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.” But the Guidelines go on to ask: “What should an employer do if an employee mentions drug addiction or alcoholism, or requests accommodation, for the first time in response to discipline for unacceptable performance or conduct?” The answer: “An employee whose poor performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation, separate from any disciplinary action the employer chooses to impose and assuming the discipline for the infraction is not termination.” So, there are two questions we cannot answer from this distant vantage: Did the coach’s alleged misconduct issues warrant termination, regardless of alcohol as a contributing factor? And second: Did the coach ask for ask for a reasonable accommodation? “If the employee requests an accommodation, the employer should begin an ‘interactive process’ to determine if an accommodation is needed to correct the problem.” For more, see here. And good luck, Coach. Get well soon, and back to football.