Archive for June, 2013

The gay marriage decisions, part 2: Hollingsworth continues an uncomfortably strong reading of the ‘standing’ doctrine

June 28, 2013

Yesterday, the Supreme Court handed two significant defeats to opponents of LGBT equality: United States v. Windsor, discussed yesterday, and Hollingsworth v. Perry. By all accounts, Windsor is far and away the more important case. It more or less establishes that the gender of married parties, and whether married parties are or are not the same gender, is off-limits when the federal government is decided how to parse out marital benefits. That is a huge triumph for marriage equality (though, as discussed in yesterday’s post, the scale of the triumph is somewhat diminished by weak federalism).

Hollingsworth, on the other hand, technically says nothing at all about gay marriage per se. It allows no new marriages, it creates no new rights, it recognizes no existence gay marriages. It answers none of the questions that both parties to the case wanted answered, the most important of which would have been whether or not the state constitution of California, or the charter of California, forbids the denial of marriage benefits to same-sex couples. In fact, it answers a question that neither party asked at all, that is, whether or not the opponents of gay marriage had the right to be challenging the case at all. Hollingsworth speaks to the “standing” of the appealing parties, which neither party actually seriously challenged at any stage prior to the Supreme Court appeal.

“Standing” is a complicated thing, and I don’t mean that it’s complicated for the laymen, I mean that it’s complicated. What’s important for our purposes is that, if you want to sue the government over a law, you have to show that you were actually injured by that law. This analysis is usually best suited to criminal defendants being convicted for violating laws that they think are unConstitutional. Hollingsworth is interesting in that it is about the standing of the plaintiffs.

The doctrine of standing plays two important functions. Firstly, it prevents people with no stake in a particular law or incident from getting the advantage of court intervention – for example, imagine the harm to justice that would be done if, instead of letting the victims of racial discrimination sue to defeat discriminatory laws, the Klu Klux Klan were allowed to take up the case against racial discrimination, and just how good a job they would do of it. Secondly, it denies the courts the opportunity to usurp the power of legislators by taking the slightest complaint and turn it into a judicial referendum. Imagine, for example, a court that was just itching for an opportunity to strike down a mandatory minimum sentencing law, since it just steps on the toes of judges and juries. So, rather than going to someone sentences under such a law, they go to the judge’s neighbor Joe, who is just personally morally opposed to mandatory minimum sentencing, lets him sue, and takes his case. Joe has become an opportunity for a judge to strike down a law. Standing requirements forbid either scenario – the Klu Klux Klan presumably does not have standing in its case, and Joe does not have standing in his, since justice is properly left to truly aggrieved parties.

But for atheists and skeptics like myself, the word “standing” sticks in your craw because of a case called Elk Grove Unified School District v. Newdow. That was the case in which Michael Newdow, father of a daughter who had been punished for refusing to recite the Pledge of Allegiance because of its bizarre recently-added theistic commitments, was refused the opportunity to challenge Congress’s intrusion into the Pledge not because his case was bad, not because he was wrong about the Constitution or about the separation of church and state, but because he lacked “standing.”

Denial of “standing” is becoming an increasingly esoteric legal doctrine that is beginning to strike me as a judicial substitute for “we don’t really want to hear your case.” The Supreme Court had a prime opportunity in Hollingsworth to and a sounding defeat to the enemies of equality, but instead, it took the easy way out on a truly ambiguous question of standing. Like WindsorHollingsworth was 5-4, but Hollingsworth wasn’t the 5-4 you’d think. Where Windsor was divided along the traditional conservative bloc vs. Kennedy/liberal block lines we’ve come to know and love, Hollingsworth was opposed by the unusual combination of Alito, Thomas (Bush appointees), Sotomayor (an Obama appointee), and Kennedy. Liberal-conservative splits are to be expected. Ragtag teams of liberals, conservatives, and moderates all coming together to oppose are rather unexpected.

The dissent is just as concerned as I am that the Supreme Court took the easy way out in Hollingsworth, and worse, that the Court is making true justice entirely too inaccessible, that future Supreme Courts now have the superweapon of an unlimited standing doctrine to dismiss any case without having to answer the hard questions. To quote the dissent:

The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way  around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century…. In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.

The troubling question raised by Hollingsworth is, who’s next to be denied Court access because of “standing?” Michael Newdow deserved to have his case heard, but the courts above him had created an insulating protection that lets them get rid of difficult cases without committing themselves to potentially politically unpalatable consequences. That is how Hollingsworth sounds to me. It makes me think, “first they came for the gay marriage opponents, but I said nothing, because I was not against gay marriage….” What if, some day, I want to petition the highest courts in the land to protect me from some federal or state invasion of my Constitutional protections, and I lack standing because my case is politically undesireable? Then I will be like Michael Newdow, and like the opponents of gay marriage: unpopular, unpalatable, and unprotected by the courts.


The gay marriage decisions, part 1: Windsor is a huge win for LGBT equality, but it’s a far cry from past great progressive victories

June 27, 2013

Today’s simultaneous rulings on gay marriage are, unequivocally, huge wins for marriage equality. Hollingsworth v. Perry, which concluded that the appellants lacked standing to bring the case and that therefore neither the Supreme Court nor the 9th Circuit should have heard the appeals defending Proposition 8 in the first place, and United States v. Windsor, which concluded that the federal government cannot deny benefits related to marriage based on same-sex status, are watershed decisions in the history of LGBT equality.

That being said, some troubling questions certainly remain, from both cases. There’s a lot to absorb from these cases, and so I’m going to split the cases over two posts. Part 1 is going to be Windsor, and next time, we’ll cover Hollingsworth.

We’ll start with the big one, Windsor, which gutted the Defense of Marriage Act, essentially declaring that the federal government cannot deny federal marriage benefits based on sexual orientation. In the run-up to decision day, some authorities were comparing Windsor to the game-changing Brown v. Board of Education, which essentially abolished segregated schools nationwide (legally speaking; actual integration took several years longer). The great strength of Brown v. Board was its uncompromising federalism: it gave no quarter to that most celebrated euphemism for the right to discriminate, “state’s rights,” and so forced the country into a truly national step forward. No ambiguities, no ifs, no buts.

Likewise with other great progressive judicial triumphs like Roe v. Wade and Loving v. Virginia. The strength of those cases was not that they created new restrictions on the federal government. No, those cases have stood the test of time and been burned into the brains of Con Law students everywhere for decades because they recognized new fundamental rights in the peopleRoe didn’t just say that there could be no federal ban on abortion, it said that no arm of the government could restrict the access of American women to abortions (on a trimester test that has since been expanded, but, lets not get ahead of ourselves). Loving didn’t end the federal government’s power to ban interracial marriage, it ended Virginia’s, and by extension, all other states. When it comes to protecting human rights, federalism is universally a better approach than the 10th Amendment fanaticism that has consumed American jurisprudence in the last ten years, and Windsor is a great example of that.

Windsor comes with substantially more qualifications than past great progressive triumphs. The first qualification is that no new gay marriages have been created or recognized by Windsor. On the absolute strictest possible reading of Windsor, one section of the Defense of Marriage Act, that part amending the so-called “Dictionary Act” which defines thousands of terms of federal law to specifically define “marriage” to exclude same-sex couples, is unconstitutional, but nothing else in this entire field is unconstitutional. The majority of states still have state Constitution bans on gay marriage and there is no language in Windsor specifically eliminates any of them.

In fact, there is troubling language in the majority opinion that seems to specifically create a right in individual states to continue to deny equality to same-sex couples. Quoting the majority:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.

I’ve bolded some of the sections that I find disturbing. It addresses itself entirely to a top-down attack on DOMA as discriminatory, not a bottom-up recognition of a fundamental right of gay Americans to get married. The decision seems to say that the federal government is prevented only from denying recognition to those marriages deemed legitimate by individual states, not that state bans on gay marriage are unconstitutional. This is a massive step back from the principles of federalism that ended segregation, that has kept church and state separate, that for the hundred and fifty years since the Fourteenth Amendment has put a bridle on that great engine of regression, “states’ rights.” This is a savagely curtailed version of rights jurisprudence, one which says that the federal government is the only kind of American institution that bears the burden of obeying the Constitution.

Windsor is a powerful referendum on the opponents of marriage equality, but it is just as much a referendum on progressive federalism. One might want to object that Windsor only speaks to DOMA and federal law because those were the only ones on the table, but progressive courts in the past haven’t been afraid to turn referendums on state issues into condemnations of those issues nationally – Roe, Loving, and Brown, even great cases from First Amendment religion jurisprudence from Abington Township to Lemon were all appeals from either state laws or state decisions that were instantly turned into national positions by the power of progressive federalism.

No state can deny your right to an abortion. No state can deny your right to an interracial marriage. No state can make you pray. But states can deny you the right to get married – and this court doesn’t say how far the state’s power to restrict that right goes. That is because progressive, federalist courts in the past have had the courage and wisdom to expand the Constitution’s guarantees as soon as the opportunity arises, not waiting for narrow procedural grounds in future cases (and believe me, there will be future cases) to give them the opportunity.

The decision here is so narrow that it even permits states that do not extend the courtesy of common humanity to same-sex couples to deny the existence of other states’ marriages. This radically contradicts the mainstream interpretation of Full Faith and Credit, creating a vicious internal inconsistency in the ruling itself. States are supposed to give full faith and credit to the judicial proceedings of every other state. According to Windsor, marriages, as adjudicated by the states, control over the federal government’s desire to deny federal marriage benefits to same-sex couples because marriage is something like a fundamental right. And yet, also according to this ruling, states do not have to give full faith and credit to the judicial proceedings of every other state where marriage is concerned. If I get divorced in New York and flee to Florida, is Florida likewise free to deny the judicial validity of my divorce? If not, why not?

This case is a huge symbolic win, but leaves a lot to be desired. Every state gay marriage ban that was on the books last week is still on the books. A win on the federal level is, don’t get me wrong, a tremendous win – and a contrary ruling would have been an absolute disaster for LGBT equality. But the ruling could have gone so much further, and still leaves the court dragging out the issue until a real challenge to a state ban on gay marriage comes before it. Windsor is a call to action for LGBT equality, to take the fight to state houses everywhere, or to Congress and the Senate, to work new cases challenging state gay marriage bans up the court system – because, unfortunately, it far from ends the battle.

Unfortunately, Hollinsworth v. Perry, the California Prop 8 appeal, is not that case. But next time, I’ll go through that case in greater detail, and why I find it, too, to have some glaring flaws that should leave all progressives troubled at the direction the court has gone lately.

Food warning labels for GMO products are inherently deceptive

June 20, 2013

Imagine that you, an ordinary American consumer, are out shopping for groceries. You, like most savvy consumers, prefer to get the best deal you can – best product for the best price. But because it’s food you’re shopping for, safety is a huge factor in determining which foods are “best” for you and your family. Imagine that you see the following warning label on a product you might otherwise like to buy:


Scary, right? Certainly not something you’d be comfortable giving to your family to eat. And how relieving it would be to see the reverse kind of label on a competing product:


No brainer, right? You’d probably spend a few extra cents or dollars on a product that looks the same but that just sounds safer – even if you didn’t know what dihydrogen monoxide was, the fact that they felt it necessary to warn you about it makes you suspicious.

Of course, “dihydrogen monoxide” is merely water. But, if weren’t aware of this particular prank, that first label could look kind of scary to you, right? And the one after just looks so inviting, by contrast. So if you, the consumer, saw the labels alone, but didn’t really know what they were warning about, you would be perfectly justified in being bothered by the first one, and tempted by the second one. It would influence your buying decision for reasons that might be totally opaque to you.

There are a lot of perfectly valid warning labels on food products for safety reasons (“gluten-free,” “contains nuts”) and labels on other kinds of products that might otherwise give a consumer useful information that she’d want to know when buying that product (“Made in USA,” “Not from concentrate”). But now there is a push from lobbyists for the organic-food industry to compel grocers and manufacturers to label products that say “Contains GMOs.” (Genetically-modified organisms)

We don’t yet know what the hypothetical labels for GMO-containing food products would look like, but I somehow doubt they’d have the same kinds of colorful illustrations that non-GMO product makers put on their foods. The second label above is representative of the somewhat deceptive advertising strategy of non-genetically-modified foods, though I’ve admittedly dramatized the plant and the butterfly. It creates a sense of comfort in the consumer, a sense of relief about a product that the consumer presumes to be somehow superior. But there’s no equivalent to the first label, the scary warning label – yet.

Maine and Connecticut have already passed laws requiring stores to label GMO products, but thanks to lobbying from grocers and manufacturers, those laws contain provisions keeping them from going into effect until a certain critical mass of other states pass similar laws. And it looks like Massachusetts is going to be next.

So, should the state compel grocers and manufacturers to “warn” consumers about GMO foods?

Proponents have an easy job here. I mean, it’s not like the labels are technically lies – many foods really do contain genetically-modified organisms, and many consumers probably would want to know which do and which don’t. So what’s the problem?

Consumer protection is one of the most valuable roles of the state. The state compels businesses to protect the public, either by making its products safer or by providing information that they would want to have for their safety, because the free market simply won’t do it on its own – it never has, anyway.  But manipulating the machinery of consumer protection  for pure propaganda purposes sets a bad precedent in an age where corporate interests have unrivaled access to the government.

The valid role of consumer protection is to provide accurate information about the safety of certain products or to otherwise provide information that speaks to valid consumer concerns (“Made in USA” or “Made in China” is the classic non-safety-related valid consumer concern). But there’s a huge difference between warning people about an actual danger in food, and creating unwarranted fears about competitors’ products. Food warning labels for GMO products are inherently deceptive because they automatically (and I think deliberately) create an impression in the mind of the consumer that GMO products are dangerous, even if the warning labels don’t say so explicitly. They don’t protect the consumer from any information, they don’t speak to a valid consumer concern, they instead validate an unfounded growing public paranoia over perfectly safe, healthy foods.

And lets be clear – any fears about GMOs are unwarranted. The American Medical Association, the World Health Organization, the National Academy of Sciences, the European Commission’s European Research Area, even academic parties like the University of California, are among the many thousands of ruthlessly empirical voices that have verified that GMOs aren’t just not bad for you, but that there are many reasons to think that they’re actually a better investment than unenhanced foods. Higher crop yields, better nutritional density, certainly nothing that would make you want to put a warning label on something.

Misleading consumers about the dangers of your competitors’ products is bad enough, but it’s just a part of business. It makes good economic sense to wage private battles against your competitors through clever, if not entirely honest, marketing. But it’s much worse when you use the machinery of consumer protection to do it for you, at the expense of the taxpayer and at the expense of the integrity of the consumer protection system. The role of consumer protection is consumer protection, not corporate advocacy. What the non-GMO lobby is pushing for is the incorporation of the state’s consumer protection interests into its own marketing agenda, not protecting the public from a valid health concern.

Furthermore, consumers who have pseudoscientific attachments to unenhanced foods, or similarly pseudoscientific aversions to GMOs, already have plenty of very visible alternatives. Organic food makers are always happy to slap their eye-catching labels on their products as they can. There are entire stores dedicated to non-GMO food products. Every consumer who wants to know the difference knows the difference already, and those consumers who don’t are apt to be misled by the mere existence of a “warning” label into believing that there’s something real to be warned about. And that’s fine – I have no problem with non-GMO food producers from playing up their marketing strategy all they want.  That’s business, that’s markets doing what they do. What bothers me is the scary prospect that, with a sufficiently savvy marketing strategy, they can get the government to spend your tax dollars doing it for them.

Consumers have somehow lost sight of the fact that non-GMO foods are still made by businesses that are in what they do for the money. And their marketing strategy is working just fine on its own – everybody hates Monsanto, everybody feels warm and fuzzy about organic foods. They don’t need the state, using your tax dollars, to wage another volley in their marketing war on GMO foods, especially at the expense of the integrity of the valuable consumer protection process.

Deception is more than just straight-up lying to people. Deception can be done by insinuation, which is precisely what a “Warning: contains GMOs” label is. It is an invitation to fear something based on no evidence but lots of feelings. The market is what should be deciding whether safe, healthy GMOs or safe, healthy non-GMOs end up on the dinner table, not the government. The legitimate policy goals of consumer protection are far too important to sacrifice in service of the narrow interests of the organic food lobby, and warning labels that rely on nothing but innuendo are the first step towards a scary future where lobbyists can get the state to wage corporate marketing battles.

Workplace religious bullies are not protected by discrimination laws, but sometimes, neither are their victims

June 19, 2013

The notion that workplace discrimination laws are easy to exploit is pure propaganda. “What do you mean, she’s suing for discrimination? She was just a bad worker!” “Nobody’s racist anymore – why do we even have racial discrimination laws anymore?” Easy statements, with a certain no-nonsense appeal, but the fact is that plaintiffs in employment discrimination cases face long odds in the courtroom. At the federal level, plaintiffs in job discrimination suits win just 15% of the time (against a 51% plaintiff win rate for all civil cases at the federal level); when the appeals process is factored in, that rate can be as low as 2%. Because of these high risks, plaintiffs’ lawyers are often hesitant to charge on a contingency basis, and so plaintiffs might find them out hundreds or thousands of dollars in legal fees before they even get to trial – and then you keep spending until you either settle (almost universally a better solution that waiting for a verdict) or, lose at trial, lose on appeal, settle after a remand, or win the plaintiffs’ lottery and actually win the case. Plaintiffs’ lawyers face stiff competition from the understaffed, underfunded, underpowered Equal Employment Opportunity Commission which, while a socially worthwhile organization, often just corrals plaintiffs into mediated settlements, usually without a lawyer of their own, helping lawbreaking employers to buy their way off the hook at discount price. In short, employee-plaintiffs have long odds with high costs against a convoluted discovery process with clients who simply can’t afford the long haul it takes to win a big case. And that’s when the EEOC isn’t talking potential clients into settling for peanuts.

Ad on top of all these things, the employee-plaintiffs’ bar sometimes gets people like Pamela Hall.

By all accounts, Pamela Hall is a bully. According to the factual background of the just-decided Hall v. Tift County Hospital Authority, Pamela Hall, a Baptist and a former quasi-supervisor with a Georgia hospital, and Amanda Dix, a staff nurse under Hall, were friends, until religion came up. After what is surely a fascinating but, sadly, judicially unread backstory in which Hall accuses Dix of sleeping with Hall’s husband, Dix reveals to Hall that she is a lesbian, and Hall’s religious beliefs seemingly launched into overdrive.

Now, being a Baptist (ie, anti-gay) with a gay subordinate is not itself fodder for a discrimination case. Neither was it a discrimination case when Hall stuck a religious tract and a condescending little note in Dix’s locker (you know the kind, the condescending Christian power-trip: ‘your sexuality makes you morally inferior to me, but I will be merciful, since it is only your sexuality I hate and that you should change, not you personally!’). And neither was it a discrimination case when Dix found herself receiving follow-up religious harassment from Hall.

So when did it become a discrimination case? According to Hall, it was when she was demoted from her supervisory position. Not fired, not transferred to Alaska, just demoted – and by all appearances, temporarily. Now clearly, she lacks the stability and people skills to be leading anyone which is why she was demoted, but instead, she claims she was demoted because of “religious discrimination.”

What Pamela Hall’s lawyer hopefully told her before going to court was that, in order for something to be discrimination, you have to be treated differently because of your religion. If you’re a Baptist who harasses her subordinates, who goes out of her way to make people uncomfortable because of personality traits that are irrelevant to job performance, then you’re no more fit to lead a team than a Hindu, a Muslim, or an atheist who does the same thing – which is why you have to find the Hindu, Muslim, or atheist who does do the same thing and isn’t demoted, or who receives a lighter punishment. You can’t just be a Baptist who gets in trouble, you have to be in trouble because you’re a Baptist and because you’re not something else.

She lost her case. Her demotion was clearly because of her inadequate leadership traits. But the real sad point here, though, is how her victim’s own case when.

Because her victim doesn’t have a case.

Georgia, like the majority of American states, provides absolutely no job discrimination protections based on sexual orientation. If Hall had gone to Dix and fired her, handing her a pink slip that said just “NO QUEERS IN MY HOSPITAL!,” that would likely have been completely legal (barring a miraculous judicial resuscitation of the moribund public policy exception, but, that’s a tale for another day). Now, a pink slip saying “NO NON-BAPTISTS!” would have been a problem, for Title VII reasons, but Title VII says nothing about sexual orientation discrimination.

Many states have had the courage to stand up to bigoted religious interests, but unfortunately, Georgia is not one of them. Workplace bullying* is bad enough when it isn’t tantamount to discriminatory or bigoted behavior, but it’s far worse when bullying is so obviously based upon pure prejudice and the law provides no remedy for the victims of such blatant aggression. Pamela Hall is the true face of the parody plaintiff, the one who truly bungled her job and abused discrimination laws as an excuse for her own incompetence. And unfortunately, if her victim hadn’t had the courage to complain to upper management, Dix might have herself seen job consequences, even been fired, and had no remedies whatsoever.

*People interested in the subject of workplace bullying and the law are encouraged to read Suffolk Law professor David Yamada’s blog on the subject.

How did ‘Under God’ survive this long?

June 15, 2013

Today marks the 59th anniversary of the introduction of the phrase “under God” to the Pledge of Allegiance. The Pledge of Allegiance, which predates its Congressional takeover by several decades, originally contained no particular theistic commitments, but since 1954 has forced schoolchildren to recite a very specific, very sectarian credo. “There is exactly one God, no more, no less; he is trustworthy; and we trust in his judgment,” goes the longhand version of “in God we trust.”

“In God we Trust” seems like the perfect storm for Constitutional objections. Students punished for not reciting this particular section of the Pledge face the rather unappetizing combination of forced speech, and forced sectarian endorsement. Where the First Amendment protects freedom of expression, the Pledge of Allegiance compels one form of patriotic expression over all others and over silence. Where the First Amendment forbids governmental intrusion into matters of religious opinion, the First Amendment compels expression of a specific sectarian interpretation of theism. If Congress passed a law tomorrow saying that every American must say that America is one nation under God, the law would last about an hour and a half in front of the courts, and most of that would be the time it takes Scalia to obfuscate an obvious truth.

So why has “under God” lasted so long in the Pledge?

The main reason is the relatively esoteric “standing” doctrine of Constitutional jurisprudence. Every case calling for the repeal of a law that reaches any court of consequence requires that somebody actually be harmed by the creation or enforcement of  that law. To date, the Supreme Court has managed to dodge the politically thorny “under God” question by dismissing challenge after challenge not on the merits of the case, but on the standing of the appellant – that being, almost universally, Michael Newdow, parent of a child routinely forced to make the aforementioned highly-specific theistic commitment every day. Eager as always to dodge controversy, the Supreme Court was happy to treat Newdow as more or less unrelated to his own daughter in the one case with promise for challenging the clearly unConstitutional compulsory theistic commitment forced onto your children five days a week.

On its merits, “under God” is a no-brainer. For the government to compel you, an American citizen endowed with freedom of speech, to say anything at all is unconscionable. For that compulsion to be on a matter of theistic commitment is insult atop injury. And yet the Pledge has survived from this day in 1954 onward. The reason is not Constitutional support. The reason is not jurisprudential consistency, it is not principle. It is jurisprudential cowardice, tied to ancient Congressional paranoia. Nothing more. Happy anniversary, and may you soon rest in peace, “under God.”

With paternalistic religious pandering still all the rage in some parts of America, the “under God” question is not a merely academic First Amendment question. It is a question of how many politically easy descriptions of American religiosity the courts are willing to accept before they realize that the Constitution is being truly offended. Given the absolutely obvious Constitutional question of whether or not American children can be compelled to recite a sectarian religious statement, the Supreme Court’s historical reticence to do the right thing is truly unsettling. But with the Circuit courts permitting a challenge to “under God” to rise through the ranks in 2012, we may actually have an opportunity to see the Court face its own historical reticence. As a secular person myself, I for one cannot wait for the courts to confront the obvious, and to make amends for its historical evasions.

Is your unpaid internship illegal?

June 13, 2013

A New York judge recently ruled that Fox Searchlight Pictures must pay two of its former “interns” for work they did on the set of the 2011 film “Black Swan” back wages for work that the interns didn’t know that they were performing. Despite being told that they were interns, the two workers in question did all of the ordinary work that people are normally paid to do, and in fact they actually did so alongside other paid workers. The only difference between the “interns” and the paid staff was that the interns were told, and probably really thought, that they didn’t need to be paid.

This case, Eric Glatt et. al v. Fox Searchlight Pictures, has enormous implications for businesses and for the thousands of Americans either in school, or just leaving school, who are applying to or currently participating in unpaid internships. Not because the case signals some radical new change in the law – the law has been remarkably consistent on unpaid internships for years – but because now people might actually start to know the law on unpaid internships.

Fox Searchlight Pictures’ lawyers, just like the lawyers for the large companies that pull in thousands of unpaid interns every year, have to know the law on this one because the law is very plain: you must pay your workers. This is especially true in the private sector. The Fair Labor Standards Act, the flagship legislation in this field, only exempts very specific kinds of volunteer work for government, religious, and humanitarian agencies. The private sector has no such exemptions, and even those exemptions for charitable organizations are strictly defined. Otherwise, if somebody does work for you, you have to pay them.

So the question then becomes, what separates a “worker” from an “intern?” I’ll give you a hint: it is not just the difference between being called an “intern” instead of a “worker.” The rule that employers do not get to unilaterally make legal determinations about your status as a worker is consistent across several aspects of the worker: your employer does not get to unilaterally decide if you are entitled to overtime pay or not, your employer does not get to unilaterally decide that you are an at-will employee, and your employer does not get to unilaterally decide that you do not need to be compensated for your work.

The Department of Labor has issued some extremely clear guidance on this matter, and looking back over my own past, the unpaid “internships” I’ve done, it becomes pretty clear that very few so-called private sector “internships” are anything but evasions of the obligation to pay workers for their time, intentional or otherwise. According to the Department of Labor, In order to actually qualify as an internship that doesn’t need compensation, for the purposes of the Fair Labor Standards Act:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

This means that the internship where you primarily get or make coffee, make photocopies, or do work like the paid office temp is doing, will likely not meet this criterion. Nobody takes classes in college on the Starbucks order.

2. The internship experience is for the benefit of the intern;

This sounds fairly easy qualification for the employer to meet, since it’s rather broad. All that running to Starbucks is for the “benefit” of the employee, right? But this part of the test speaks to benefit in the sense that an education is for your benefit: you’re putting work into it, and getting a benefit from it, with a direct proportion between them. Fact Sheet #71 contemplates an apprenticeship model for the unpaid internship: it is supposed to be like a classroom on the job. The harder you work at it, the more you get out of it, not the more your employer gets out of it.

3. The intern does not displace regular employees, but works under close supervision of existing staff;

This speaks to the real policy agenda of Fact Sheet #71. You might have been jokingly referred to as “slave labor” when you worked your unpaid internship. That isn’t far from the truth. The policy agenda behind Fact Sheet #71 is to forbid employers from depressing wages, sabotaging the employment rate, and hurting skilled workers by replacing them with students. The Department of Labor doesn’t want your sincere desire to learn to take precedence over the life and livelihood of a skilled, experienced, paid worker, letting employers save on their labor costs at the expense of the entire rest of the economy.

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

This is the one your unpaid internship is most likely to trip. Did your employer ever actually lose anything from your being an unpaid intern? Did they set aside space for you, or the time of a staffer, that cut into their operations? And while they were doing that, did they gain nothing – nothing from you?

There is some ambiguity in this part of the guidelines, though. Does it mean that the employer gains no advantage whatsoever – not even so much as getting a cup of coffee that your boss might have had to set aside time to go get herself? Or does it mean that the employer gains no advantage in net – your boss might have gotten her coffee, saving her five billable hours over the course of the summer, but she also spent ten billable hours teaching you about your area of study, and so, in net, she gained no immediate advantage? I don’t know the answer to that question, but I think it likely that most unpaid internships are extremely lopsided one way or the other, either with the unpaid internship being little more than an employee in all but paycheck, or the internship being a genuinely student-like apprentice.

5. The intern is not necessarily entitled to a job at the conclusion of the internship; 

This one is included to make the point that, if you have an on-the-job training period for wherever you end up working, you should get paid for that training period. Most of the time, what you call a learning period with a job guaranteed afterward is a “training period.” This is included in the fact sheet to prevent employers from getting to reduce their labor costs at the expense of trainees by calling them “interns,” consistent with the principle that employers do not have unilateral power to make legal determinations about their legal relations with and obligations to others. As an aside, there’s an interesting economic incentive lurking behind the necessity that employees must be paid for on-the-job training: it incentivizes companies to seek out employees who are already trained or skilled, thereby encouraging workers to incur the costs of training on themselves by going to school and discouraging employers from bringing unskilled workers into the skilled labor force. Interesting, I suppose, but only relevant to you if your internship is in economics.

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Your employer, of course, will always “understand” that the internship is not entitled to wages, but do you? Have you ever known someone who got hours or even days into an internship before asking when payday was, only to be “reminded” that the internship is unpaid? That person is illegally unpaid.

The main takeaway from the Fox Searchlight case is not a legal point, since the law is clear and consistent. Minimum wage and overtime laws make no allowance for unilateral determination by employers that their workers should be exempt from those laws. The proper unpaid internship follows is a hybrid apprenticeship/classroom model. The proper unpaid internship is not just training for an inevitable job. The internship should be fixed in duration, and done under the supervision of people who have something to teach you, not just staffers whose job and wages you undercut.

Rather, the takeaway is that interns have the same rights as any other workers, and the only thing between private sector wage violators and a torrent of lawsuits is knowledge. Knowledge you now have.

Oregon vaccination bill SB 132: looks good on paper, but ambiguous language and open liability questions leave room for improvement

June 11, 2013

Oregon, finally taking action on widespread non-medical child vaccination refusals, has passed a revision to its vaccination requirement laws that imposes some interesting new requirements on parents who want to use non-medical reasons to excuse their children from vaccinations. Under the old system, all that parents had to do in order to prevent their children from getting potentially life-saving vaccinations and still go to public schools was sign a free waiver claiming some kind of nonspecific religious affiliation that forbids vaccinations. With virtually no regulatory oversight, ease of access, and an inability of state health agencies to combat the inexorable propaganda arm of the anti-vaccination crowd, rates of unvaccinated children in Oregon are very high, more than five times the national average. The problems with such a system are tragically obvious: pertussis epidemics, weakened herd immunity, converging on the sad and detestable fact that philosophical, religious, and non-scientific objections to vaccinations hurt children.

But really the only thing that saves the entire national vaccination scheme from destruction at the hands of the First Amendment’s religious protections is that people with religious beliefs are exempt. A vaccine system without a religious exemption would be both politically impossible and Constitutionally problematic. But when you leave a hole in the vaccination scheme for any parent whatsoever who wants to avoid vaccinations for whatever reason, including non-religious pseudoscientific objections to vaccinations, you get problems so serious that they almost amount to the same thing. Case in point: Oregon. When the number of immunized members of a population drops below a certain threshold (“herd immunity”), the unvaccinated persons provide a large enough biome for that disease to not just infect the unvaccinated persons, but to mutate and evolve in their bodies and then spread to vaccinated people, since the vaccine is targeted to the pre-mutation disease.

In short, a vaccine program that doesn’t get to herd immunity levels is worthless, but a program that doesn’t have a religious exemption is impossible. So, what’s a state government to do?

SB 132‘s approach is pretty clever. Instead of just ending the exemption, it requires everyone – religious or not – who wants their children out of the vaccine program to either get the signature of a “practitioner of healing arts” saying that the parents have been provided with factual information provided by the state about the safety and importance of vaccines, or to complete an online course in vaccine safety and importance, which comes with a certificate of completion.

In an ideal world, this system strikes a good balance: those with religious objections to vaccines aren’t objecting on grounds of safety or importance so getting that information can’t interfere with their religious beliefs, and those objecting for pseudoscientific reasons are objecting on grounds of safety or importance, and so a little education can only help to nudge them in the direction of public safety. Right?

I am irked by some ambiguities in the language of the bill. Firstly, while the bill clearly states that the online education module parents can complete in order to opt out of the vaccine program must be prepared and provided by the state health authorities, and so will likely be accurate. Instead of the online module, however, parents can get a signed statement from a medical practitioner saying that information has been provided to the parents, instead of taking the state-authored course. But it says nothing about what kind of “information” a “practitioner of the medical arts” must “provide” for the waiver to be effective.

  • The bill says that the information must be about the “risks and benefits of immunization.” But who screens this content? The bill doesn’t say. Does the information have to give “equal time” to both scientific and nonscientific assessments of vaccine safety? The bill doesn’t say. Does the information even have to be accurate? The bill doesn’t say! And if it does have to be accurate, who gets punished for the inaccuracy of the information when a child gets hurt – the parent? The publisher of the information? The doctor?
  • What is a practitioner of the medical arts? The bill does not say, and the phrase is so awkward and ambiguous that it seems clear to cast a wide net. Does information qualify if it comes from your homeopath? What about from your snake-handling faith-healer? Or from your great-aunt Gertie, the one who gave you chicken noodle soup when you were home sick from school?
  • How does the doctor know when information has been provided to the parent, and who provides it? What if the parent gets the information from the internet and tells their doctor that they’ve read about vaccines already? What if it’s a book published by the anti-vaccination crowd? What if the doctor gives the parent a stack of accurate, reliable, and well-vetted information from prestigious national and international medical bodies extolling the virtues of vaccination, and the parent drops them in the trash can on the way out of the office – is that providing information on vaccines?

Unfortunately, these questions will likely have to be resolved through litigation, which of course means that somebody has to get hurt, and somebody has to get punished, before we get clear answers to these questions.

But that raises the obvious next question of liability. Suppose a doctor gives a parent information showing that vaccines are safe and important, per the doctor’s good-faith attempt to follow the rules of a good-faith vaccination bill, but then that parent’s child ends up getting sick or even dying from a vaccine allergy. Will doctors be chilled from giving out even reliable vaccination information? The bill says nothing about liability shields for information-providers (which, I’m annoyed to say, could have been solved if the Oregon legislature had just stuck the word “accurate” in there!), or for doctors. Are doctors allowed to refuse to sign the waiver forms, even if they’ve provided the educational information? If they are, who accounts for the rights of the religious waivers, and if they aren’t, who accounts for the conscience of a doctor?

I like SB 132. I like where its head’s at. But the bill is taking on a difficult task: balancing the Constitutional rights of those whose religions put everyone else at risk, against the equally dangerous but less-protected desires of those whose secular pseudoscientific beliefs put everyone else at risk. If we see an uptick in the Oregon vaccination rates by even the slightest degree, the bill is a success. But I’m much more confident that we’re going to see an uptick in litigation before we see the health outcomes.

Five simple questions to ask about the outcry over the NSA’s PRISM program

June 7, 2013
  1. Are you more, or less, outraged over data-mining of this kind when it is done by internet marketers, search engine web-crawlers, or people who use search engines?
  2. The government is restricted from using its own mined data by the threshold inquiry of the Fourth Amendment. Do you think that this is more, or less, restrictive than the burdens internet marketers, search engines, and other private entities place on themselves when they access or distribute your data?
  3. If you didn’t want data of this kind being mined, why did you give your phone company and your cable provider the right to do so in the EULA you signed?
  4. What sort of outcry do you think is appropriate for the fact that the government’s Postal Service has location, date, and timestamps for every piece of physical mail sent in the United States, and that the government can read your mail when they think they can beat the 4th Amendment threshold for suspicious messages or messages between terrorists?
  5. What reasonable expectation of privacy does your twitter feed have?

The PRISM program tracks who you call and when – it doesn’t record your phone calls. Your phone company tracks who you call and when – it doesn’t record your phone calls. PRISM knows what’s on your Facebook page. So does Facebook, and thousands of its internet marketing affiliates. PRISM knows what you tweet. So does Twitter and everyone else who wants to.

Answers welcome in comments. Good to be back.