Rehab program sent men from drug courts in Oklahoma and elsewhere to chicken plant as unpaid labor [Amy Julia Harris and Shoshana Walter, Center for Investigative Reporting] More: Digital History/University of Houston on history of convict leasing (“In 1883, about 10 percent of Alabama’s total revenue was derived from convict leasing.”); Ida B. Wells, “The Convict Lease System” (“The Convict Lease System and Lynch Law are twin infamies which flourish hand in hand in many of the United States”); Frederick Douglass speech on convict lease system; U.S. Department of Justice peonage files 1901-1945.
Archive for October, 2017
October 11 roundup
- Newspaper execs who faked circulation numbers ended up copping pleas. Law deans who fudged employment stats don’t need to worry, do they? [Morgan Cloud and George Shepherd via Paul Caron]
- Back in The Excuse Factory I wrote about the unplanned consequences of age discrimination law and the prohibition of automatic retirement ages and it’s nice to see a wider consensus forming even if nothing, absolutely nothing, ever gets done to fix it [Saul Levmore and Martha Nussbaum, WSJ]
- Fair use: “Man who sued over Facebook childbirth livestream slapped with $120k in fees” [Joe Mullin, Ars Technica]
- “Stop Faking Service Dogs: Loving your pet too much is putting people with real disabilities at risk” [Wes Siler, Outside, our tag on service animals] More: Michael Ollove, Stateline;
- Fifth Circuit reverses $663 million Eastern District of Texas False Claims Act award over sale of guardrails to highway authorities [U.S. ex rel. Harman v. Trinity Industries, Mark Curriden/Texas Lawbook, our earlier critical commentary]
- “Why Conservatives Should not Sic Antitrust on Silicon Valley” [John McGinnis, Liberty and Law]
Third Circuit OKs ADA suit demanding tactile interpreter for deaf/blind movie patron
Reversing a trial court, the Third Circuit has ruled that a deaf/blind man can sue Cinemark under the Americans with Disabilities Act (ADA) demanding that it provide a “tactile interpreter” so that he could experience the movie Gone Girl. Each interpreter — two would be required because of the movie’s feature length — would narrate the film in American Sign Language (ASL) while McGann placed his hand in contact with theirs to read the signs. The appellate judges rejected the argument that because of the need for subjective stylistic judgments about how to describe the movie’s action, on-the-fly translation would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered,” an exception recognized by the law to its accommodation requirement. It sent the case back for further proceedings on whether the theater could plead “undue hardship,” a narrow defense that is often unavailable to large businesses which (it is argued) can cover even very high costs of accommodation by using revenues earned from other patrons [McGann v. Cinemark]
Labor and employment roundup
- Will California suit against GrubHub strangle the gig economy? [Cyrus Farivar/ArsTechnica, Megan Rose Dickey/TechCrunch, Jon Steingart/Bloomberg]
- “The War on Work — And How To End It” [Edward Glaeser, City Journal via John Cochrane (“It is interesting that our political class says it wants more Americans to work. Yet there are few activities as hit by disincentives and regulatory barriers than the simple act of paying another person to do something for you.”)
- North Carolina attorney Jonathan Harkavy does an annual Supreme Court employment law roundup of which the latest installment is here;
- Restaurant owner who wrote in favor of higher minimum wage shutters eatery in Oakland’s Fruitvale neighborhood: ““The specifics of the paperwork that restaurants in SF and California have to do are overwhelming….Being an owner-operator is a really taxing job.” [SF Eater, Slate in 2014]
- “Analyzing James Damore’s Employment-Related Claims against Google” [Matthew Bodie/On Labor, one, two, three; related, Suzanne Lucas]
- “New labor code for France?” [Jeff Hirsch, Workplace Prof referencing 2013 article with Sam Estreicher, “Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism“]
Thom Lambert, “How to Regulate: A Guide for Policymakers”
In the mail: Thom Lambert (University of Missouri School of Law), “How to Regulate: A Guide for Policymakers” from Cambridge, with blurbs from Cass Sunstein and the Hon. Doug Ginsburg. [Amazon, more] Summary:
Markets sometimes fail. But so do regulatory efforts to correct market failures. Sometimes regulations reach too far, condemning good activities as well as bad, and sometimes they don’t reach far enough, allowing bad behavior to persist. In this highly instructive book, Thomas A. Lambert explains the pitfalls of both extremes while offering readers a manual of effective regulation, showing how the best regulation maximizes social welfare and minimizes social costs. Working like a physician, Lambert demonstrates how regulators should diagnose the underlying disease and identify its symptoms, potential remedies for it, and their side effects before selecting the regulation that offers the greatest net benefit. This book should be read by policymakers, students, and anyone else interested in understanding how the best regulations are crafted and why they work.
In January, Thom wrote more about the book at Truth on the Market, including an introduction and a followup on externalities.
FDA: “‘Love’ is not a common or usual name of an ingredient.”
The Food and Drug Administration gets all dour and bureaucratic about a granola maker’s listing of “love” among its list of ingredients: “Your Nashoba Granola label lists ingredient ‘Love,’…‘Love’ is not a common or usual name of an ingredient.” [Anna Edney, Bloomberg, warning letter]
Canada’s inquiry into wrongful climate advocacy
A Canadian government agency investigated three organizations accused of “climate denial” for 14 months after Ecojustice, a leading environmental pressure group, sought criminal charges [Lorrie Goldstein, Toronto Sun] While the bureau eventually discontinued the probe in June, citing “available evidence, the assessment of the facts in this case, and to ensure the effective allocation of limited resources”, it reserved the option to reopen it “should it receive relevant new information from the public.” We have followed the efforts of state attorneys general including New York’s Eric Schneiderman and Massachusetts’s Maura Healey to attach legal consequences to improper advocacy on climate topics; see also our free speech in Canada tag.
Can employees recover overtime for after-hours work they never reported at the time?
When we last examined Allen v. City of Chicago — a case in which a class of Chicago police officers claimed their employer owed them unpaid overtime for their time spent reading emails off-duty on their smartphones—an Illinois federal court had dismissed the claims, holding that most of the emails were incidental and non-essential to the officers’ work, and, regardless, the employer lacked specific knowledge of non-compensated off-duty work.
[In August] – in what is believed to be the first, and only, federal appellate court decision on whether an employer owes non-exempt employees overtime for time spent off-duty reading emails on a smartphone — the 7th Circuit affirmed [pdf].
While under existing precedent an employer must pay for all off-hours work it knows about even if the work is unwelcome and against its policy, it is evidently not required to pay for work that it never learned about at the time because employees ignored a policy requiring them to report it.
“Football Coach Sued for Copyright Infringement Over Retweet”
“You better think twice before hitting retweet because there are some vengeful potential plaintiffs out there. King’s College and its football coach were sued for copyright infringement for retweeting a link to an unauthorized image of a single page of a book.” [Michael Lee, Morrison Lee via Timothy Geigner, Techdirt]
“The Dead Man Who Sued to Make Himself Alive”
As of 2014, Donald E. Miller, Jr. was still alive according to the federal government, except in the state of Ohio, where he was legally dead. [Dan Lewis, Now I Know]