Arizona Immigration Law Valid According to Divided Supreme Court

To the political bonfire of illegal immigration, the U.S. Supreme Court has just dumped several gallons of petrol, with its decision upholding the Legal Arizona Workers Act, which places penalties for hiring illegal workers on most Arizona employers and requires that employers use E-verify. U.S. Chamber of Commerce v. Whiting (5/26/11) [pdf].

The nitty-gritty of the legal argument is this. When Congress passed the Immigration Reform & Control Act, it expressly pre-empted ""any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens."

It is the parenthetical phrase "(other than through licensing and similar laws)" that the Arizona legislature has driven the proverbial truck through, and now the Supreme Court has backed them up.

I will leave it to the immigration experts to talk about the impact on that particular body of law. The politico's can talk about what will happen from a political standpoint. My amateur observation is that many states, including Texas, will pass similar laws, a move will be made in Congress to roll back the savings clause, and all of these actions will be more for political purposes than for resolution of a national problem.

From a positive perspective, it is possible given that the defendant in this case was the U.S. Chamber of Commerce that this will be the spark (or explosion) that leads to serious discussions to come up with a rational national solution. (And I say to myself, and pigs may fly.)

One concern raised by the Chamber and the dissenting justices is that employers will choose not to hire Hispanic employees in order to avoid any threat of the rather severe sanctions that can be imposed on them. The majority opinion authored by Justice Roberts rejected that argument:
The Chamber and JUSTICE BREYER assert that employers will err on the side of discrimination rather than risk the “‘business death penalty’” by “hiring unauthorized workers.” [cites omitted] That is not the choice. License termination is not an available sanction simply for “hiring unauthorized workers.” Only far more egregious violations of the law trigger that consequence. The Arizona law covers only knowing or intentional violations. The law’s permanent licensing sanctions do not come into play until a second knowing or intentional violation at the same business location, and only if the second violation occurs while the employer is still on probation for the first. These limits ensure that licensing sanctions are imposed only when an employer’s conduct fully justifies them. An employer acting in good faith need have no fear of the sanctions.
As a textbook statement of what the world should be like, I would not quarrel with the logic of Justice Robert's statement.

As someone who every day sees how the real world works, it could not be further from reality. Employers who have had too many instances where their proper actions have been sustained only after lengthy and expensive court processes, will be hard to convince at the sub-conscious level that this scheme does not pose potential problems for them and alter their actions accordingly.

Today's decision leaves me with two distinct thoughts about the Supreme Court, not the merits of this case.

First, I regret that we no longer look for regular practicing lawyers for the Supreme Court, but choose them from judges, government lawyers and appellate specialists. From my small niche of labor and employment law,  it seems to me that the Court is far out of touch with what happens in the real world of the workplace.

Secondly, it makes me think about the political rhetoric against "judicial activism" and that "judges should not make law."

I don't think anyone seriously believes or can even say with a straight face that when Congress passed the savings clause that is the subject of this lawsuit that they were consciously deciding that states should be able to gain such a dominant place in the enforcement of the immigration laws. The situation was much different then, but no one really believes that the Congress which passed IRCA, which contains the language quoted above, made a conscious decision to endorse legislation like the Arizona statute. The fact is Congress didn't think about it in this context, nor was there probably any reason for them to do so.

That is not a criticism of the Supreme Court for doing their job. Because Congress didn't think about it in this case, and can never think of every possible situation, we have given to the courts the powers to fill in the gaps, to supply the answers where Congress gave us none. Hopefully that is done  using consistent legal principles, but even doing so will rarely point to one correct answer; in this case it clearly resulted in multiple answers. The only way we know what is the "correct answer" is by counting the number of judges on each side. 

Which means nothing more than that all the political rhetoric about appointing judges who will not make law, just follow it, is just political bs. Everyone wants judges who will apply the principles the way they want them applied in these situations. That's our system and that's fine.

What bothers me is politicians who either don't understand the system, or more cynically understand the system, but are not honest about it and hide behind the false statement that judges' job is not to make law, just interpret it.

I have not studied it enough to know whether I think today's decision was a legally correct one or not. What I do know is that in making it and in his opinion for the court, it would be ludicrous to say that Justice Roberts was just acting as an umpire. His job is very different, and frankly much more important, than that. In this case, Congress did not give us the clear cut answer and now the Court has.

Protecting Against Internal Theft at Museums and Cultural Institutions

Earlier this month a grand jury charged Laura Phillips, the former treasurer of the Alabama Museum Association, with felony theft. The indictment alleged that she stole from the association. In February, a grand jury also charged her with stealing over $57,504 from the Carnegie Visual Arts Center where she was director. Such allegations should remind institutions to maintain vigilance over their purse strings.

From my experience as a former prosecutor and as an attorney dealing with nonprofits, the vast majority of people who work in museums and cultural institutions are honest and hardworking. When there is a problem with theft of funds, the crime typically is committed by someone inside the organization. A person who works with cash and who remains unsupervised may be tempted to "borrow" funds to cover personal expenses. As time goes by, the amount of funds stolen can grow.
 
Some tips to reduce internal theft include:
  • ensuring board oversight of operations,
  • creating an audit committee,
  • involving at least two officers in money transactions,
  • watching unusual behavior of the person who handles money (e.g. frequently staying late at the office to perform money transactions),
  • imposing a term limit on the treasurer's position.
Good risk management involves taking time to review organizational best practices and policies that protect against internal theft.

Sir Alan Beith's Private Member's Bill

Yesterday afternoon Sir Alan Beith spoke in support of his private member's Bill which would "require the Secretary of State to make provision requiring the fitting of equipment to heavy goods vehicles to eliminate driver blind spots; to make other provisions relating to the safety of cyclists, pedestrians and other road users; and for connected purposes".  The Bill passed its first reading.  This development, like similar proposals that achieved widespread support in the European Parliament and are now before the Commission, result directly from the hard work of the family of Eilidh Cairns.
I have said plenty on these pages already about the hazards presented to cyclists by lorries.  Let us hope that the old acceptance that lorries can be permitted onto our crowded streets with 'blind spots' will soon be a thing of the past.  I see that the Bill is also supported by Dr Julian Huppert, whose good sense I have already noted.

I am relieved to see sense being talked in Parliament after the disproportionate reaction to the unfortunate, but extremely rare, death of a pedestrian after being run down by a cyclist which led to Andrea Leadsom's private member's Bill earlier this year.

I have also seen this week on The One Show, James Cracknell calling for legislation mandating cycle helmets.  Mr Cracknell is plainly a nice guy who cycles but he is in league with the definitely non-cycling Angie Lee (who chooses to lecture children on the hazards of cycling without a helmet rather than on the dangers of diabetes and heart disease).  Despite the failure of his helmet to save him from a very serious brain injury, James Cracknell genuinely believes that he would be worse off without the helmet.  He goes so far as to condemn non helmeted cyclists for not thinking of their relatives.  What I cannot understand is where were the thoughts for Mr Cracknell's relatives on the part of the lorry driver who apparently slammed his wing mirror into the back of James's head at 70 mph?  I would be interested in a follow up story that indicates whether this driver is now languishing in a prison cell or still driving a truck.  I cannot understand why some are more focussed upon the dubious benefits of a helmet rather than on ensuring that these lorry/cyclist collisions do not happen.  I applaud Sir Alan for grasping the right end of the stick.

DOL Help for Employer On OSHA Reporting

Last week I posted about DOL's new app for employees to keep records of their hours worked, so to be fair, the DOL does not limit its computerized assistance to employees. It also has on line assistance designed to help the employer community comply with their obligations under various statutes.

Although not as cool as an "app" the DOL's various elaws are helpful. The most recent, and what prompted today's post, is one to help an employer know if an incident is recordable under OSHA. To walk you through the regulations in a systematic form, check out theOSHA Recordkeeping Advisor.

For an employer not sophisticated in OSHA requirements, it's a good first step.

Legislative Override of Supreme Court

What a difference three years makes. Unlike the opening weeks of the prior Congress when it could not act fast enough to get the reversal of the Supreme Court's decision in the Lilly Ledbetter case to President Obama's desk, the offering of the Arbitration Fairness Act by Senator Franken, faces much more difficult sledding. Franken bill would block mandatory arbitration clauses in cell phone contracts.

Although this bill has been introduced now for several sessions, the latest is at least tied to the Supreme Court's recent decision in ATT Mobility LLC v. Concepcion which upheld an arbitration agreement that prohibited class actions.  See Franken's press release from earlier today here. The bill would ban mandatory arbitration both in consumer transactions and in the workplace (with an exception for arbitration provided for by collective bargaining).

Still, having testified at the Judiciary Committee hearing in the fall of 2009 where Senator Franken challenged mandatory arbitration, I have some personal experience with how strongly he feels about this bill. Here's a link to the testimony on the arbitration issue (fortunately for me I was testifying about the Gross decision).

For supporters of arbitration, although it would seem that passage of the AFA would be out of the question in this Congress, I wouldn't necessarily turn out the lights. If, and that' certainly is a big if, the idea that arbitation is unfair in a consumer setting could touch a chord in a large number of people (and it does not seem to have done so yet) this is one that could catch momentum quickly.

Particularly since arbitration is not something that most legislators have strong feelings about one way or another. For those who think it is a good thing in employment matters, the fact that prohibiting in the employment context always gets linked to banning it in consumer transactions is not comforting.

Update (05/19/2011 ) -  Although the text of the bill is not yet posted on the official Senate website, it is S.B. 987 and should be available in the next few days. From seeing a copy of the bill on BNA's Daily Labor Report, one interesting thing is that the bill has dropped the ban on arbitration in franchise agreements which was present in prior versions. Presumably, that was done to remove the objections of some. See the comment from the Defense Research Institute, which also points out that the bill contains a provision that would nullify another Supreme Court arbitration decision, Rent-A-Center West, Inc. v. Jackson, 120 S. Ct. 2772 (2010). The 2011 version of the Arbitation Fairness Act requires that decisions on the enforcibility of the arbitration agreement be made by the court, not an arbitrator.

Fred Whitton Challenge Sunday 8th May 2011

I started this blog two years ago with the FWC 2009 with no inkling that events would turn me into what the media types that contact me call 'a cycling campaigner' and this a correspondingly campaigning site.  It is refreshing to get several hundred miles away from the stressed out competition between roadusers in the London commuter belt, to an event where everybody is at least aiming to enjoy a long ride in idyllic lakeland countryside.
My club had a team of 6 (down from 7 due to a nasty crash in the Masters' Race at Hillingdon a few days before).  We had come ready for the hills but possibly not the weather.  There was steady rain in the morning but by the time I started at 8am it looked as though there may be some respite from the worst of it.  However I got the torrential downpour of hail with high wind as I was tackling the first really steep climb at Honister.  The wind was still howling and the rain lashing down as I tackled the first really steep descent off the same hill when I found to my alarm that my newly fitted Bonti tyres, while virtually puncture proof, were not well suited to these conditions.  The rider behind thought I was gone and it is true I more skied than cycled down much of this slope.

I left my two clubmates I was with to recover at the Buttermere feed; they would both have come in with much better times than I, had not both their chains broken; another indication of the taxing conditions of the day.  I cautiously picked my way around the hills losing control on several more occasions before the rain dried up in the early afternoon and the roads started to dry, thankfully before I reached the monsters of Hardknott and Wrynose passes.

Time did not really matter after all this but I came in at seconds over 8 hours, establishing a trend of a slower time for each of the past three years.

An equipment review for these harsh conditions: 
 - The Ribble winter bike was perhaps a little heavier than ideal for all these climbs but I really had no option as I have moved my triple chainset from my carbon (so as not to look quite so daft racing).  I had taken the trouble to remove the mudguards but it may have been better to leave them on.  Ideally I would have a light bike with a triple or compact chainset.
-  A chain tool.  I always carry a multitool that contains one.  I did not need it but two of my clubmates could have done with one!
-  Tyres.  Go for something grippy.  I nearly came a cropper as a consequence of my unwise tyre choice.
-  Good raingear.  Fortunately my club rainjacket is excellent and proved worth its (insubstantial) weight in gold.

Will I be back?  I am always doubtful soon after completing it but a clubmate and I have already made our hotel booking for 2012, and of course we do need to secure ourselves those sought after entries.

All credit again to the organisers.  They do a fantastic job even in challenging conditions.

Now an iPhone App for Wage and Hour Litigation

This is clearly a first for this blog. A link to the apple app store.

But when the Department of Labor releases an app for iPhone, iPod and iPad with this description:
... a timesheet to help employees independently track the hours they work and determine the wages they are owed. .... This new technology is significant because, instead of relying on employer's records, workers can now keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.
DOL-Timesheet for iPhone, iPod touch, and iPad on the iTunes App Store, it sounds blog worthy to me.

Technology, as employers have found with email, can be a two-edged sword. It will be interesting to see how this one plays out down the line.

A hat tip to my Indianapolis colleague, Christopher Murray, for pointing this out.

Cycling Infrastructure

Here is an interesting arrangement that I discovered cycling down the A30 in Hampshire between Camberley and Basingstoke.  This piece of road used to be an important trunk road.  I can just remember being driven up and down it to and from Dorset as a young child.  However since the M3 was constructed running parallel and only a mile or so to the south then, like a lot of old trunk roads, it lost its importance along with most of its traffic.
What a great opportunity to use some of this space for long distance cycle routes.  You could easily use one carriageway for bicycles and one for motor vehicles; alternatively one lane in each direction could be a high quality wide cycle lane.
However cyclists were obviously the last thing on the mind of the Highway Engineer who designed this.  I was cycling down here with a lorry behind.  I had no wish to hold him up but the 'blanking off' of one lane with projecting keep left traffic islands meant there was no way he could get by.  To give the driver his due he was not a road rage moron and he waited patiently until the end of the previously dual section before he could get by.
This scene to me just typifies want of thought and wasted opportunity.  Useful cycling infrastructure could be set up here and on roads like it at minimal cost.  It is not that we do not have the space for infrastructure; we do not have the will.
Further up the A30 east of Staines, money has been wasted painting a cycle lane onto the pavement with give way markings at every junction and crossing point.  Nobody will use it and motorists will wonder why not.
You can glimpse some of this exciting new infrastructure (and maybe some of the reasons I will not be making use of it) on the left in this footage.

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