While I Am in the Land of Aloha, the Legislature Permits Guns on Employer Parking Lots Premises

I am vacationing on the Garden Island, but taking some time tonite to catch up on what's been going on. When I left Texas the legislature was still in session, although I thought all the economic problems would keep them from doing too much mischief potentially harmful to employers.

But I was as wrong about that, as I was right about how great Kauai would be.

While I was playing, Russell Cawyer at Texas Employment Law Update was posting on the passage of S.B. 321, which puts Texas in company with those states which prohibit employers from barring employees who are licensed to carry weapons from having them in their locked cars in the employers parking lot. There are a couple of exceptions, but they are not going to pick up many employers. Like other states, there is indemnity protection for the employer, although there is that troublesome exception for "gross negligence."

I am not a fan of these laws, although I can't say that I can post of any adverse consequences that have occurred in other states. Hopefully, I won't have occasion to update this post in the future with such a report.

Aloha.

Successive Copper Thefts at Churches

Successive thefts of copper objects from church buildings in Manchester, New Hampshire and Vieux Longeuil, Canada (located near Montreal) should prompt authorities to examine whether the crimes are related. Meanwhile, churches should take measures to guard against copper thieves.

Copper prices have increased in recent years, prompting criminals to steal the metal. WMUR reported that thieves hit St. Anne's church in Manchester on June 2, stealing a cross on the roof. Meanwhile, CJAD radio described how St. Anthony Padua co-cathedral in Longeuil suffered the loss of a copper statue. St. Anthony's was also the target of copper thieves in May when another statue and parts of the roof were stolen during two separate incidents. The two churches are located about 275 miles apart.

Sources:
http://www.wmur.com/news/28120869/detail.html#COMMENTTOP

http://www.cjad.com/CJADLocalNewsEntry.aspx?BlogEntryID=10243552

Protecting Against Internal Theft II

Last blog entry I wrote about the issue of internal theft at museums and cultural institutions. Because protecting against this risk is so important--next to protection against fire--the point should be raised again.

Today the El Paso Times reported that a former senior secretary of the El Paso Museum of Art was convicted and sentenced to incarceration for her role in stealing over $100,000 from the museum foundation. The lesson once again is that policies and procedures should be installed at cultural institutions to guard against such mishaps, which can be avoided through simple planning.

Wessex 100 Cyclosportive. Somerset and Dorset Sunday 29th May 2011

On the late May bank holiday weekend, Pendragon Sports organises a 3 day cyclosportive event running a loop out and back in different directions each day from Somerton.  As I blogged last year I am full of admiration for those who do three days.  I cheat and do only the second day which heads south to the Dorset coast and back.
There was a stiff north westerly wind which blew us down to the coast but then slowed progress on the return leg.  Following the start, a fairly large group formed and this started to split on the steady climb out of Sherborne.  I put in the effort to cross the opening gap and stick with the front group.  This was probably a mistake as I ended up putting far too much effort in too early.  I knew that the climb out of Cerne Abbas would be a point at which I could well get dropped so I passed straight through the first feed (which at 30 miles was too soon for my needs anyway) and tackled the hill at my own pace.  The group passed me as I neared the top.  I had thought I might hang on until the hill at the coast on the Lulworth army firing range but I actually got dropped a little earlier than that on the more modest climb out of West Lulworth.
After getting to the firing range on my own, I enjoyed taking the bigger hill with the views of tanks and their targets, Poole Harbour and finally open sea.  At the top I took a quick break and another rider caught up so we two-upped to the spectacular ruins of Corfe Castle.  Here we were caught by the next group who provided well needed shelter as we turned into the wind to head towards Wareham and the first feed where we stopped for 6 minutes enjoying sandwiches, pasties, pork pies and sweets (certainly the best food I have encountered on a cyclosportive).  This group was well organised doing one mile turns at the front in rotation.  We were now 66 miles in and as I led out of the feed I  indicated I would not be able to do a mile - so we settled on one minute turns, which worked well for the next 15 miles or so to Milton Abbas.
We took the long relentless drag from there up to Bulbarrow Hill at a sensible pace altogether though I was by now definitely flagging.  At around 90 miles there was another feed.  All bar me stopped, I wanted to press on gently.  This I did and when the group came by me I did not have the energy to latch on.  I spent the last 29 miles of this 119 mile ride on my own, towards the end the next group came by me but by this stage I could only watch them flash by and limp to the finish.
Two years ago, on this event, I got a Gold, last year a Silver and this year a Bronze.  These results mean little and do appear to be subject to significant vagaries and some subtle differences in route and less subtle differences in weather from year to year.
'Officially' the route was 117 miles and my time 6 hours 32 minutes
Stats from my Garmin were 119 miles in 6:24 with an average speed of 18.5 mph.  Apparently I hit 43 mph somewhere.
A great ride, I will certainly be back though I suspect I will be sticking to one day; the following morning a repeat challenge did not seem an appealing prospect and not only because of the rain.  Those that do the three days are hardy indeed.

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.