The U.S. Supreme Court is Bigger than Any President or Nominee – My Guide to the Nomination Hunger Games. Part I.

No one is truly objective when discussing Supreme Court nominees and their preferred judicial approach. I favor somewhat of a strict constructionist/historical approach and I am obviously generally pro-employer. I’ve tried to select articles which are legally-driven and that were not written by fire breathers. Nevertheless, my leanings still influence this two-part article.

People on the left should not be unduly worried about President Trump’s Kavanaugh nomination; nor should folks on the far Right anticipate reversal of Roe v. Wade and an abandonment of precedent. The Supreme Court has a way of moving lawyers to the middle and emphasizing amicable intellectual compromise.

Yes, Brent Kavanaugh will probably increase the Court’s movement to the right, but gradually and not aggressively. I say “probably” because unlike Democratic nominees, Republican nominees have often swung moderately to the center (Kennedy) or hard left. Let’s not forget that the most progressive and most prone to making laws of our lifetime was comprised mainly of republican nominees.

Chief Justice Roberts has also established that he will not allow rushed and aggressive movement. So I’ll raise issues and link to articles in the hope that you can make your own reasoned analysis and determine the likely effects of the nomination.

Issue 1 – Why can’t the President nominate someone like Anthony Kennedy?

Aside from the facts that BOTH parties seek to nominate a jurist aligned with their views and the term mainstream is meaningless because no definition satisfies a majority, Kennedy was a unicorn.

I’ll quote from a recent Washington Post article, “On abortion and other issues, Kavanaugh’s heroes are more conservative than Kennedy.”

Of course, it would be almost impossible to select a justice in the mold of Kennedy. His unique views provoked equally distributed frustrations: disappointing conservatives by authoring

Obergefell v. Hodges, which established a constitutional right for same-sex couples to marry, and outraging liberals with Citizens United v. FEC, which authorized unlimited campaign spending for businesses and other entities.

In one term, he was the only justice in both 5-to-4 majorities when he (and conservatives) removed a crucial part of the Voting Rights Act and when he (and liberals) overturned the federal Defense of Marriage Act, which denied recognition of same-sex marriages.

“There probably is not a single lawyer in the United States whose views align entirely with the justice’s, and there probably hasn’t been one for a while,” former Kennedy clerk Leah Litman wrote in a tribute to Kennedy on scotusblog.com.

Issue 2Obama nominee Merrick Garland should have been nominated, so do so now.

Garland was a fine jurist; then Circuit Judge Kavanaugh rightly profusely praised Garland. However, politics is a brass knuckle activity and don’t fool yourself – a Democratic controlled Senate would have done the same thing.

Issue 3 – What is the role of the Court?

Again, let’s not kid ourselves, BOTH parties sometimes wish that the Supreme Court would overturn and in essence make new laws in keeping with societal changes (Dems) or stem the legislative tide and restore traditional values (Republicans). In both cases, such desires clash with the Constitutional role of the Court and our system of checks-and-balances. Neither party should succumb to an ends justifies the means mentality.

Some might argue that the left – whatever that even means – may treat political actions with which they disagree as “evil” and thus worthy of any response – and that they trust the notion of wise educated philosophers as more reliable to make decisions than the unwashed common man. To my right leaning buddies who just cheered my bashing of elitism, the right often takes its distrust of the academic and intellectual establishment way too far. And fair is fair, the right sometimes yearns for a Judge who will reinforce “Christian values.”

The Court’s role is to interpret the law, not make it, but even that mission statement leaves considerable latitude to judges. Let’s return to the earlier Washington Post article…

Kavanaugh has spoken approvingly of the metaphor Chief Justice John G. Roberts Jr. used at his confirmation hearings of the judge as umpire. But there are no objective rules, he said, which frees some judges to impose their own views.

“It’s sometimes as if you were asked to umpire a baseball game, and you asked the commissioner of baseball whether the bottom of the strike zone was at the knees or at the hips, and you were told that it was up to you,” Kavanaugh said.

He also acknowledged that it was a difficult question as to when the Supreme Court should honor a precedent as settled law, or when it becomes important to overrule a wrongly decided case. “I wish I had the perfect answer,” he told one audience.

Kavanaugh does not seem inclined to rely on personal subjective beliefs as articulated in his praise of former Chief Justice Rehnquist, his judicial hero.

“He was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” Kavanaugh said.

“The court, case after case had seemed to be simply enshrining its policy views into the Constitution, or so the critics charged,” Kavanaugh said. “During Rehnquist’s tenure, the Supreme Court unquestionably changed and became more of an institution of law, where the court’s power is to interpret, and to apply the law [as] written, informed by historical practice, not by its own personal and policy predilections.”

I’ll do a separate post on the subject of Judicial Philosophy, but that is the real question. terms such as left, right, progressive, liberal and conservative really do not explain the differences in how Judges view the Constitution and make decisions.

As an example, the NYT wrote a solid piece analyzing Judge Gorsuch’s Legal Philosophy at the time of his nomination to the Supreme Court and described his philosophy as follows:

Judge Gorsuch, 49 — who was appointed to the United States Court of Appeals for the 10th Circuit, in Denver, by President George W. Bush — is an originalist, meaning he tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it. This approach leads him to generally but not uniformly conservative results. (My emphasis added).

Some would argue that Gorsuch and perhaps Kavanaugh do not even neatly fit the “Originalist” school. Read this serious analysis of Gorsuch’s Judicial Philosophy and whether Philosophy matters.

Issue 4 – Does Judge Kavanaugh have the credentials and demeanor to be a Justice?

All but the extremists on both sides will admit that Kavanaugh is a judge’s judge and we have 11 years and 300 written opinions to show his analysis, writing style and judicial temperament.

SCOTUS (Supreme Court of the United States) Blog is a solid lawyerly resource and released a good summary about Judge Kavanaugh. Start here: Introduction: A close look at Judge Brett Kavanaugh.

From the NYT Op Ed, A Liberal’s Case for Brett Kavanaugh by Akhil Reed Amar, a Yale Law professor who taught Kavanaugh.

…. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.

Judge Kavanaugh, who is 53, has already helped decide hundreds of cases concerning a broad range of difficult issues.

Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions.

Except for Judge Garland, no one has sent more of his law clerks to clerk for the justices of the Supreme Court than Judge Kavanaugh has. And his clerks have clerked for justices across the ideological spectrum.

Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. ….

This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.

Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.

A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous. ….

For a discussion on the misbelief that a Justice Kavanaugh will give President Trump a get-out-of-free card, read Kavanaugh on presidential power: Law-review article on investigations of sitting presidents (UPDATED). My read is that Kavanaugh felt misgivings about the negative effects on President Clinton of the innumerable Starr investigations in which he participated. Live and learn. I tend to agree.

 Issue 5 – Can Judge Kavanaugh write?

The ability to write well-reasoned decisions which actually provide Guidance to we poor suffering lawyers and citizens is NOT a common trait. Please tolerate my lawyerly nerding out.

From Law360 (July 10, 2018, 10) –

There’s no argle-bargle in Judge Brett Kavanaugh’s opinions. Instead, he’s made a name for himself on the D.C. Circuit with clear, concise writing.

Justice Anthony Kennedy took his share of knocks for grandiose and occasionally purple prose. The late Justice Antonin Scalia was fond of verbal pyrotechnics, particularly in dissent, using phrases like “jiggery-pokery,” “pure applesauce,” and yes, “argle-bargle.”

….

But legal writing experts agree: Whatever you think of Judge Kavanaugh’s judicial philosophy, this judge can write.

“Kavanaugh is a great opinion writer in the John Roberts or Elena Kagan tradition,” said Ross Guberman, president of training and consulting firm Legal Writing Pro LLC and the author of books including “Point Made: How to Write like the Nation’s Top Advocates.” “His sentences are crisp and controlled, his word choice punchy, his transitions seamless, and his analysis organized with military precision.”

….

Judge Kavanaugh has also been honored for his legal writing by The Green Bag, a law journal that annually recognizes a handful of judges for “exemplary legal writing,” for his 2012 opinion in Vann v. U.S. Department of the Interior. ….

Judge Kavanaugh’s style strives to make complex legal questions clear and accessible to a broad audience — a useful trick for a judge on a circuit court that often deals with knotty questions of administrative law.

…. The justices are writing for a variety of audiences: the litigants, the lower courts, journalists, and the public. But they’re also writing for each other. And if an opinion can be written clearly and succinctly, the reasoning that underlies it is often persuasive, or at least doesn’t go too far afield.

“You would hope that a Supreme Court justice is constrained by the need to tell a coherent story,” Livermore said. “Whether that holds up in practice is a different story.”

Issue 6 – Should Judge Kavanaugh pledge to not overturn Roe v. Wade or to uphold or attack other decisions?

Judges may not make pledges and when Senators seek such admissions, they are grandstanding for the press. From the above NYT Op Ed:

Everyone would have to understand that in honestly answering, Judge Kavanaugh would not be making a pledge — a pledge would be a violation of judicial independence. In the future, he would of course be free to change his mind if confronted with new arguments or new facts, or even if he merely comes to see a matter differently with the weight of judgment on his shoulders. But honest discussions of one’s current legal views are entirely proper, and without them confirmation hearings are largely pointless.

Questions on past decisions and analysis are fair game.

Issue 7 – Should One Issue be the Litmus Test of Whether to Approve or Disqualify a Judicial Nominee?

Tough issue. My wish is that no one issue should render a candidate unfit for a judicial post, but I am operating purely from an intellectual standpoint.

As one example, will Senator Paul Rand oppose Kavanaugh solely based on Paul’s strong views against any post-911 government monitoring based on his privacy concerns.

Kavanaugh May Face Stealth Hurdle in Confirmation: Rand Paul

To focus on a more obvious example, I sympathize with friends who consider abortion to be an unparalleled tragedy. However, I also have no problem in understanding the visceral reaction of my female friends of all political persuasions to restrictions on their right to control their body. I am thankful that it is not my job to balance these deeply held concerns.

In a perfect world, which I’ll probably never see, every Justice would go into a case with the attitude that he or she could be the swing vote.

END OF PART I

Posted in Courts, Nominees, Uncategorized | Tagged , , | Leave a comment

Things My Daughter Graciously (and probably inaccurately) Claims that She Learned from Her Badger (me).

My birthday is approaching and my daughter composed these things that she claims to have learned from me. It’s been a rough week and she wanted to encourage me. Needless to say, she succeeded.

I pray that I did impart these values because I have worked to achieve them in my life. However, I am a veteran parent and I know better than to claim to have contributed to my children’ successes or to have caused their problems. At soon-to-be 59 years of age, my legacy is about all that matters to me. If you are like me, you feel as if your life experience might best serve as a warning to others of things NOT to do.

So I’ll share my daughter’s observations – and consider them in light of her young legacy of nationally ranked distance runner – tough former fighter – insanely high academic achievements in multiple degrees at different schools – Renaissance personality – and all camouflaged  in a petite little size.

  1. Laugh often and genuinely.
  2. Embrace your nerdiness, and find other nerds to marinate in the nerdly juice with you. Nerd bonding is the most exquisite kind of bonding. 🙂
  3. Fight for the people (and pups) and causes you love, even when you’re fighting alone.
  4. Look for nuance in all situations, even when it hurts to do so.
  5. Be more generous than some people think would be “sufficient” with your resources and your time.
  6. Never miss the chance to hug someone you love.
  7. Be willing to answer the phone at 3 am when it’s someone you love who is calling.
  8. When sh*t hits the fan, kick into warrior mode and stay there til said sh*t is no longer on your ceiling fan…even if it takes a while! No one likes sh*tty fans, after all. 🙂
  9. You can never have too many books.
  10. Don’t be afraid to veer away from your schedule. The best adventures and memories are most often spontaneous.
  11. Having ADD is actually a benefit: it makes you more creative!
  12. Dress in your power clothing when it’s time to kick a$$ and take names.
  13. Going to counseling and taking medicine is a sign of courage and strength, not weakness.
  14. The outdoors are a marvelous therapist.
  15. Dogs aren’t really dogs: they’re furry angel-children, and should be spoiled as such!
  16. Introverts can still be awesome public speakers and teachers.
  17. Follow your career passion, even if it doesn’t pay well and even if it isn’t the most popular choice.
  18. Courage is being scared, but still doing the right thing, even though it scares you!
  19. Be outrageously kind to service industry folks, both with words, actions, and through being “mufaka” (not sure how to spell that one, but you know what I mean).
  20. Take the people you love’s concerns and drama seriously enough to let them vent to you a bit, even if you don’t quite understand what they’re upset about!
  21. Give yourself the introvert time you need to recharge, and don’t feel badly about it.
  22. Being strong doesn’t just have to mean having big muscles: it means an inner strength and ferocity of spirit.
  23. Try to look for the good in other people, even when you really, really, really dislike them!
  24. Sometimes, waiting til the last minute is best, because then you work super, super fast!
  25. It’s ok to be a good writer but to not enjoy writing!
  26. Be a Labrador for those that you love, and a PO’d Doberman against those who seek to wrong them.
  27. Life is too short to take it seriously all the time. Be goofy; smile; and the word will eventually smile back at you, if even just for one brilliant moment.
Posted in Uncategorized | Leave a comment

Are Michelin Starred and James Beard-quality Restaurants Prone to OSHA Citations?

I’m spoiled. I’ve sought out great restaurants in scores of US cities, great meat-and-threes in rural counties, hole-in-the-wall BBQ joints, and starred restaurants in Europe, Africa and the Middle East.

I am also an OSHA-nerd, and I find myself subconsciously studying everyplace I go for OSHA violations and even what I’d do if there were a fire, mass shooting, or zombie attack. Recently I noticed the same OSHA violations at several accomplished restaurants and upscale hotel/resort eateries.

These violations are not surprising. Nor are they indicative of sloppiness in other areas, as they usually are in most business settings. The truth is that a restaurant presents few hazards compared to construction or a refinery, and it’s not surprising that management could be oblivious to certain low hanging OSHA violations whose impact on safety might not be immediately obvious. Most of these restaurants are alert to slip-and-fall risks, burn and scald situations, and bad lifting habits.

Low Hanging Fruit OSHA Violations are Expensive.

Let’s analogize to Dollar Tree and other retail stores. These stores are not particularly hazardous environments, but they have paid hundreds of thousands of dollars in OSHA penalties because they have many locations and the same recurrent OSHA violations become expensive Repeat Citations when again found at other locations for a five year period. Dollar Tree’s problems arose from common retail problems associated with having ill planned storage areas and multiple deliveries each week. OSHA found blocked exits, fire extinguishers and electric panels. They were also cited for pesky electrical issues such as extension cords run over ceiling joists to run PCs, when permanent electrical connections should have been installed. Any restaurant concept or chain could have the same experience, especially if a union or other group were harassing the company.

Consider these OSHA Press Releases ….

  • Illinois Dollar Tree stores endanger workers with blocked exits, stacked boxes – Retail chain faces similar citations across the nation, $121K in penalties added to total.
  • Missoula Dollar Tree $217,000 for willfully putting Missoula workers at risk.
  • Delaware Dollar General Store ignores dangers of blocked emergency exits and other serious hazards.
  • Massachusetts Store receives $177,800 in OSHA penalties.
  • Stores receive $121,000, $116,200, $143,000 and $121,000 penalties.

An employer need not be a foundry to get hit with big OSHA penalties. Nor do they need to be evil or disinterested in employee safety. I have no reason to think that these employers were bad employers.

Common Restaurant OSHA Violation.

In addition to the earlier mentioned low hanging fruit violations, consider these common issues:

  1. If your restaurant has fire extinguishers, you must either provide Annual fire extinguisher training for all employees, or develop an Emergency Action Plan (EAP) which includes a “Fight or Flight” policy in which you designate some employees to flee and others to receive the simple fire extinguisher training to fight incipient stage fires – or you could take the impractical step of telling everyone to flee even the simple grease fire.
  2. Maintain and enforce effective ”documented” procedures to prevent slippery floors and trip hazards, including nonskid shoes, accountability for controlling kitchen spills, and importantly, the proper floor cleaning materials for the janitorial crew.
  3. Documented job-specific Hazard Communication training, including on-the-job instruction, especially for employees working with commercial dishwashing machines.
  4. Inadequately marked exits, partially blocked exits, or doors that aren’t exits, but look like exits – and are not marked as “Not an Exit.”
  5. Exit doors padlocked inside to prevent pilferage or assure security late at night.
  6. Holes in electric cabinets, emergency lights or fixtures, or unlabeled switches in electrical cabinets.
  7. No consideration of Bloodborne Pathogens issues for employees who may be exposed to vomiting customers.

I hope these reminders are helpful, and if you are one of the fine restaurants that I frequent, or the genius who invented Chick-fil-a chicken minis, thanks for your artistry and hospitality.

Howard

 

Posted in Uncategorized | Leave a comment

Wow. Newly Released 2017 Drug Test Results are Scary and Employers Need to Act.

It’s deja vu all over again.

Yogi Berra

Since 1988, Quest Diagnostics’ Annual Drug Testing Index has provided the nation’s most accurate information on changes in employee drug use. You should use this data to determine if testing is necessary, what drugs to test for, and the drugs to educate employees about.

I quoted the sage, Yogi Berra because we seem to be revisiting past trends.

Reason 1 – until the last few years, workplace drug issues had fallen off of most employers’’ screens because the positive test rate fell from a whopping 13.6% in 1988 to 3.5% in 2012 – 20+ years of decline. In 2013, they began to rise again, led by a staggeringly fast rise in opiates positivity.

Reason 2 – not only have the 30+ state laws legalizing medical and/or recreational marijuana created practical challenges, new state laws and aggressive Northeastern states’ courts are attacking the until-recently protected right of employers everywhere to require employees to report to work free from the presence of unlawful drugs based upon the Federal criminal Schedule, which treats marijuana as a Schedule-1 illegal drug. So yep, workplace drug issues are back.

Reason 3cocaine use is vigorously rising in some areas … really?! Are we going to have to download and watch old Miami Vice episodes?

From Quest Diagnostic’s May 8, 2018 release of its analysis of 10,000,000 2017 drug test results.

Prescription opiate positivity rate drops by double digits, while cocaine rises by double digits in certain states Methamphetamine positivity skyrockets in Midwestern and Southern United States Marijuana positivity rises considerably in states that recently enacted recreational use statutes, finds national analysis by Quest Diagnostics.

May 8, 2018 Quest Diagnostics Annual Drug Testing Index.

 Rate for Cocaine increased for the 5th consecutive year.

Double-digit year-over-year increases in at least four of the five past years were seen in:

  • Nebraska (91% increase between 2016 and 2017),
  • Idaho (88% increase),
  • Washington (31%),
  • Nevada (25%),
  • Maryland (22% increase), and
  • Wisconsin (13%)

Structure your drug testing and education efforts in these states to recognize that coke is back.

Between 2013 and 2017, methamphetamine positivity skyrocketed:

  • 167% in the East North Central division of the Midwest (Illinois, Indiana, Michigan, Ohio, Wisconsin);
  • 160% in the East South Central division of the South (Alabama, Kentucky, Mississippi, Tennessee);
  • 150% in the Middle Atlantic division of the Northeast (New Jersey, New York, Pennsylvania); and
  • 140% in the South Atlantic division of the South (Delaware, District of Columbia, Florida, Georgia, Maryland, North Carolina, South Carolina, Virginia, West Virginia).

Prescription opiates continue decline in workforce testing data.

This is great progress, but the battle has barely started.

“The depth of our large-scale analysis supports the possibility that efforts by policymakers, employers, and the medical community to decrease the availability of opioid prescriptions and curtail the opioid crisis is working to reduce their use, at least among the working public,”

Kim Samano, PhD scientific director, Quest Diagnostics.

Before we lose interest in what many of us think is the worst US Drug problem and potentially devastating for the economy, let’s humanize the statistics.

More Americans die of overdoses than in car crashes and gun homicides combined. In 2016, 64,000 people died due to drug abuse.

  • 23% related to prescription pain relievers.
  • 24% related to heroin.
  • 31% related to non-methadone, synthetic opioids (e.g., fentanyl)

In 2016, over 11.8 million people used heroin or misused prescription opioid pain relievers.

  • In 2015, 919,400 people 25 – 54 years old were not in labor force due to opioids.
  • From 1999-2015, the decline in labor force participation cumulatively cost economy 12.1 billion work hours.
  • During that period, the reduction in work hours slowed real annual economic growth rate by 0.2%, which translates to around $702.1 billion in real output.

American Action Forum (AAF), “The Labor Force And Output Consequences Of The Opioid Crisis” (March 2018).

We must enhance wellness and other efforts to equip employees to deal with these problems in their families.

Costs of Drug Using Employees Generally.

According to one reputable recent analysis, Drug-using employees are:

  • 2.2 times more likely to request early dismissal or time off,
  • 2.5 times more likely to have absences of eight days or more,
  • 3 times more likely to be late for work,
  • 3.6 times more likely to be involved in a workplace accident, and
  • 5 times more likely to file a workers’ compensation claim.

Common sense and experience tells you that these estimates are probably accurate, especially with regard to accidents and workers comp claims.

But should most employers cease drug testing and/or relax their stance on marijuana?

For most employers the answer is no. The rise in non-marijuana use is devastating for American families and the economy. Employer enforcement is very much essential, as well as:

  • Reexamination of Rehab, EAP, and Wellness efforts.
  • New “Workplace Drug Education” and training beyond the tired old 1990s “Drugs Don’t Work” efforts.
  • Employee involvement and intervention, similar to efforts to reduce workplace violence, bullying, and harassment.
  • Education and assistance for employees whose families are dealing with drug issues, such as for children.

And Yet, the Societal Trend is to Downplay Drug Usage, at least for Marijuana.

Many of us do not much care what people do in the privacy of their home so long as it does not harm society. In part, because of the new state Marijuana laws and anti-employer court decisions in a few, mainly Northeastern States, one large public retailer announced that they would no longer test applicants. Many high tech employers have lost interest in testing, perhaps because they do not want to lose good high performing employees whose use if after hours (Don’t Ask-Don’t Tell for the drug world). I get it.

But should most employers cease drug testing and/or relax their stance on marijuana?

For most employers the answer is no. The rise in non-marijuana use is devastating for American families and the economy. Employer enforcement is very much essential, as well as:

Marijuana’s active elements can affect judgment and higher levels of reflexes days after use, and show no visible signs. I understand the reasons for people to use medical marijuana, but such use can present serious dangers and harm performance … and unlike alcohol impairment is difficult to catch. Drug testing seems essential.

But … and this is a big “but” … employers must review those old drug policies, monitor state laws, and contact their attorney. The answers are neither black and white nor simple. The Legal pitfalls are great. See January 4 & 5, 2018 Posts, Over 30 States have Medical and/or recreational Marijuana Laws.

Howard

Posted in drugs, Uncategorized | Leave a comment

Wine, Women and Song … Well Actually … Wine, Restaurants and Books.

Yep. It’s time for another Post having nothing to do with employment law, President Trump, and dire things. Folks seemed to enjoy my last escapist post … and I received quite a few comments and, even better, suggested other restaurants and wine and book stores.

10 Essential Reds.

Jeff Trump of the Brooklyn Café recently sent me a list of 10 Essential Reds he recommended for a person with my tastes. I was impressed and have pasted the list below:

Item_Desc Vintage
NEYERS LEFT BANK RED  – 750ML 2015
NEYERS MOURVEDRE EVANGELHO VINEYARD – 750ML 2015
NEAL FAMILY ZINFANDEL RUTHERFORD DUST VINEYARD – 750ML 2014
OAKVILLE “baby ghost block” WINERY CABERNET SAUVIGNON ESTATE 6 CS – 750ML 2014
MINER CABERNET SAUVIGNON NAPA VALLEY EMILYS CUVEE – 750ML 2014
PAUL HOBBS CABERNET SAUVIGNON CROSSBARN NAPA VALLEY – 750ML 2014
STEWART CABERNET SAUVIGNON MAX’S VINEYARD – 750ML 2012
STUHLMULLER CABERNET SAUVIGNON ALEXANDER VALLEY  – 750ML 2014
MARIETTA ARME Bordeaux Blend  – 750ML 2014

 

As to Reds, Mike Johnston and Bob Thornton recently turned me onto a Cab blend, which really impressed me: Pahlmeyer 2007

Whites.

I am not a white drinker, but I wish that I had written down the magnificent white that the Thorntons served from Peter Michaels Winery, but I’ll investigate their whites.

I am currently having a serious romance with the former Orin Swift effort, The Prisoner Wine Company’s Prisoner blend and Saluda Zinfandel. Good luck finding them. I buy them by the case when I can do so. I recently attended a Prisoner tasting at Sandy Springs’ incomparable Italian restaurant, Il Giallo. I was smitten with The Prisoner Wine Company’s white wines, The Snitch and Blindfold.

Outstanding Recent Dinner.

One of the best brokers that I’ve encountered, Evan Georgiou of the The Embleton Curtis Quackenbush Group at Merrill Lynch invited us to a dinner, wine tasting and cooking demonstration by Chef Linton of Restaurant Eugene. Restaurant Eugene is always in the top three or four restaurants in any list of Atlanta’s best restaurants.

Chef Linton first performed a cooking demonstration preparing a simple Risotto and spouting an amazing variety of quotable lines.

I almost never recommend any of the hordes of brokers with whom I’ve dealt, but this group has honorably assisted my mother’s affairs – which are more substantial than my investments – even as she declined. This group includes savvy professionals who have not become so jaded as to lose their focus on individual service. They are good and I especially like Evan. They distinguish themselves from the pack.

An Amazing Independent Book Store.

I’ve already tweeted and talked some about Denver’s Tattered Cover Book Store. https://www.tatteredcover.com/ There are several locations but I prefer the historic Lodo location at 1628 16th Street, near Union Station, set in a restored 1890s building that looks, smells and feels like a bookstore. It also has more appealing places to sit, read and sip than the Colfax location. The best thing about this location is the hundreds of Staff Recommendations placed on bookshelves through the store. The main location on 2526 East Colfax Avenue is larger but those of the Union Station location overshadow the quality of staff reviews and comments.

I bought numerous books off of the Tattered Book Covers’ website VIB section – Very Impressive Books, and I will henceforth monitor the recommendations. The Staff Picks section impressed me less but was still quite good. I also recommend the TC Weekly Bestsellers.

Macallan 18 Year Scotch.

Only Sultans and Russian Plutocrats Need a Scotch Better than Macallan 18 Year Single Malt. The Macallan 12 is wonderful, but the 18 is superb. Some more experienced Scotch drinkers extolled the 15 year, but I’ve not tasted it. https://us.themacallan.com/

Even North Georgians like Me Enjoy Art.

Karla and I are blessed to count among our friends, Dusty Griffith, a politically conservative former baseball playing Auburn grad, who is also one of Atlanta’s better known artists. Dusty is one of the estimable Pryor Fine Art Gallery’s favorite. I am not artistically gifted, unlike my children, but I love viewing and learning the back story behind a piece. One should never underestimate the importance of a city having a thriving artistic culture.

Dusty and Sarah Cater have recently started a free ranging collaboration in which they drink a bit of wine and then paint back-and-forth and produce a work that is different than either one’s work. I can’t wait to see what these guys concoct together.

One of my friends who differs with me on almost every one of political beliefs, and with whom I occasionally debate, has a daughter Erin Henry, who may not even be 21, but is selling impressive work, especially nudes. I wonder what she’ll be doing at 30.

Books.

I’m still pondering Run like Hell and Arsenal of Democracy (see my earlier Post) but recently shifted to fiction. I am not a true intellectual and I must alternate fiction and Non-Fiction.

Outpost, by W. Michael Gear.

This is a fine addition to the Sci-Fi genre of realistic descriptions of future colonization efforts combined with Realpolitik competitions between the various factions and earth. I especially enjoyed the strong character development, especially of the women (who kick a__ and take names). Characters are not one-dimensional. Even bad guys are not always entirely bad. Good guys die and you never lose interest. I hope that the prolific husband-wife team write more books centered on this planet. Damned fun read. Another great referral from my son, William.

The Map of Time: A Novel, by Felix J. Palma.

This one is an oddball. The writer strikes a Lemony Snicket-kind of narrator role and routinely breaks the Forth Wall. The story which teases you with H.G. Wells’ Victorian Sci-Fi twists and then lapses unexpectedly back into real world answers. The characters are mainly the stereotypical vacuous London upper crust of the time, who you want to throttle but thoroughly enjoy. The final twists genuinely surprised me. The story is creative and a great addition to whatever genre incorporates alternative history, homage to Wells, Joyce, Stoker, Holmesian mystery, and Victorian Sci-Fi.

The Catcher Was a Spy: The Mysterious Life of Moe Berg.

The title summarizes the book – Moe Berg was a Princeton graduate, Columbia Law grad, and journeyman catcher for the Sox and other teams during the 20s and 30s. He was a genuinely erudite guy but also cooperated with the press in their gleeful articles on Professor Berg and his Sanskrit reading and multilingual talents. Berg was naturally secretive and while charming, a loner at heart. He was thus well prepared to be a U.S. spy for the OSS in World War II. Berg generated in equal measure, truth and apocryphal stories, and the book tries to sort through them. The book should have been written in about a third less pages, but otherwise it’s a fun read.

I hope that you enjoyed this post. I enjoyed writing it.

Howard

 

 

Posted in Uncategorized | Leave a comment

PART II – Organizations Making a Difference in Safety and Management: BevCap Session on Avoiding Workplace Harassment.

Dealing with the challenges generated by the #METOO Movement (my Topic at the Conference) while EEOC harassment claims have not yet surged in industries outside of entertainment, media and the political world, the #METOO Movement has permanently altered women and men’s perception of the workplace.

New Attitudes or Previously “Hidden” Attitudes.

This movement or event differs from any previous focus on harassment. Not just the size and ugliness of the events … the #METOO Movement has surfaced and challenged a whole range of attitudes and practices, including the long simmering debate about women being paid less than men in so many settings. The longer-term effects of the #METOO movement will be the legal changes on pay and possibly even the long debated Comparable Pay Law.

I recommend the penetrating observations found in the Harvard Business Review’s MANAGING #METOO:

  • But first they (employers) must understand the problem, and that’s not as easy as it sounds. Sexual harassment is a form of dysfunctional behavior within the workplace — and a chronic phenomenon with a long history.
  • Research indicates that more than 70% of women have experienced it on the job, but many incidents of it go unreported.
  • One reason is that the legal definition of sexual harassment is rarely understood. Further complicating the issue, no consensus has formed around lay definitions of sexual harassment, which differ from the legal definition and have changed over the years.

I consider myself reasonably enlightened but recent events have demonstrated that we must recognize that our individual perceptions may not be entirely accurate.

Omnibus Law efforts – New York example.

  1. Mandatory Sexual Harassment Training and Policies

All employers must adopt a sexual harassment prevention policy to be distributed in writing to employees, and conduct annual sexual harassment prevention training. The bill directs the New York State Department of Labor to work with the New York State Division of Human Rights to develop both a model sexual harassment policy and model training program.  Employers can then choose whether to adopt the models prepared by the state or develop their own, so long as their policies and training meet or exceed the standards contained in the models. This law will take effect October 9, 2018.

The model sexual harassment prevention policy must include the following:

  • a statement prohibiting sexual harassment;
  • examples of prohibited conduct that would constitute sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, along with a statement that there may be additional applicable local laws;
  • a standard complaint form;
  • the procedure for the timely and confidential investigation of complaints;
  • a statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and
  • a statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.
  • Meanwhile, the model sexual harassment prevention training must be interactive and include the following:
  • an explanation of sexual harassment;
  • examples of conduct that would constitute unlawful sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and
  • information concerning employees’ rights of redress and all available forums for adjudicating complaints.

2.Prohibition of Confidential Settlements

  • Confidentiality language can only be included if that is the complainant’s preference. The complainant must be given a period of 21 days to consider whether to accept confidentiality language, and then has seven days to revoke his or her acceptance. This new law will bestow on employees broad bargaining power in choosing whether or not to keep sexual harassment claims private. This law takes effect on July 11, 2018.
  • The new legislation amends New York’s Civil Practice Law and Rules to ban contractual provisions that mandate arbitration for any allegations or claims of sexual harassment, except where inconsistent with federal law. Any such provision included in a contract will be null and void, but will not impact the enforceability of any other provision in the contract. It is yet to be seen whether and to what extent this provision will be enforceable in light of the Federal Arbitration Act.

3. Other Measures.

  • In addition to the above laws impacting private employers, the new budget law imposes an obligation that bidding entities for state contracts certify that they have implemented a written policy addressing sexual harassment and provide annual sexual harassment training to employees. Additionally, the law requires state employers found responsible for committing sexual harassment to reimburse the state agency or entity for any damages award paid to the plaintiff.
  • Employers may now be held liable for sexual harassment contractors, subcontractors, vendors, consultants, or any other person providing services in the workplace, if the employer, its agents, or supervisors knew or should have known that the nonemployee was subject to sexual harassment in the employer’s workplace, and failed to take appropriate corrective action. This provision takes effect immediately.

4. Extension of Sexual Harassment Protections To Nonemployees.

5. Prohibition of Mandatory Arbitration Agreements

The bill prohibits settlement agreements for sexual harassment claims that include nondisclosure provisions, unless that is the complainant’s preference. Specifically, employers will not “have the authority” to include in a settlement agreement any terms or conditions that would “prevent the disclosure of the underlying facts and circumstances,” for a claim for which “the factual foundation… involves sexual harassment.”

The model training must also include information addressing conduct by supervisors and additional responsibilities for supervisory personnel.

Pay Equity – “Equal Pay” claims have been reborn.

  1. The 9th Circuit Court of Appeals ruled on April 9 that employers cannot justify a wage differential between men and women by relying on prior salary, which makes it more difficult for employers to justify pay differentials and defend pay equity claims.
  2. Massachusetts – Last Month, the Massachusetts Attorney General issued guidance regarding the amended Massachusetts Equal Pay Act (MEPA), which is scheduled to take effect on July 1, 2018. That law will prohibit employers from paying employees of a different gender at different rates provided they are doing “comparable work,” and will also bar inquiries about salary

Laws Prohibiting Obtaining Past Pay History (examples).Many states have passed or are in the process of passing laws limiting or prohibiting obtaining or using past pay history at hire. As examples:

  1.  CaliforniaAssembly Bill 168 (Eggman), prohibits public and private employers from seeking or relying upon the salary history of applicants for employment. AB 168 also requires an employer, upon reasonable request, to provide the pay scale information to an applicant applying for employment.  Therefore, if an applicant inquires as to how much a specific position pays, the employer is required to provide the pay scale for that position.
  2. Delaware, Massachusetts, and Oregon passed similar laws.
  3. Philadelphia passed an ordinance which was challenged.
  4. New York City adopted an ordinance that will become law on October 31.
  5. A San Francisco ordinance will go into effect on July 1, 2018.

Attacking Nondisclosure Agreements – such agreements are under attack, especially when not associated with the resolution of a lawsuit out of a concern that these agreements have slowed disclosure and response to widespread issues.

  1. Section 13307 of the federal The Tax Cuts and Jobs Act provides that no deduction shall be allowed for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorneys’ fees related to such a settlement or payment.”
  2. Washington State Bill 5996 prohibits employers from requiring employees to sign, as a condition of employment, a nondisclosure agreement (NDA) preventing them from “disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.”

The law also specifies that such agreements—including nondisclosure agreements that predate the new law—will be void and unenforceable. The law does carve out an exception for confidentiality provisions contained in settlement agreements entered into between employers and employees

The bill also adds a new section to the Washington Law Against Discrimination (WLAD) that specifically prohibits employers from firing or retaliating against employees who disclose sexual harassment or sexual assault allegations.

Mandatory No Harassment Programs and Training.

One cannot discount the barrage of statistics … for various reasons, many employees have not felt comfortable raising harassment and discrimination concerns. Our complaint procedures have not worked as well as we believed, and many employers have not yet created a culture where employees will raise concerns about discrimination, harassment, safety.

One of my focuses is on making No Harassment and No Discrimination policies understandable and relevant to employees and supervisors. What meaningful guidance to we give employees when we recite a No Harassment policy drafted to satisfy legal concerns?

A few suggestions ….

  1. Review your No Harassment and No Discrimination Polices and Policy Statements.
  2. Revise them to include lots of examples and less legalese.
  3. Make your No Bullying policies more robust and because bullying and claims of hostile environment, discrimination and retaliation often flow from bullying – connect the No Harassment and No Discrimination policies to bullying.
  4. Train employees to focus on professionalism and to avoid getting to the point of harassment.
  5. Recognize that not every person can be taught good judgment, but to at least try. Common Sense left town – never assume that anyone innately acts with common sense.
  6. Figure out how to convince employees that you are serious that you want them to report “possible” harassment, discrimination, safety hazards and unethical behavior.

Our Hats are off to these organizations and their safety efforts ….

Georgia Tech and GTRI – the best!

BevCap Management Best Practices Conference.

The Georgia Safety Health and Environmental Conference

Charlotte Regional Safety and Health Conference.

AGC-National Safety Committee meetings (outstanding).

AGC-National Advanced Safety Management Classes.

Alabama Governor’s Safety and Health Conference.

NUCA of the Carolinas Spring Conference.

CAGC Annual Safety and HR Conference.

EHS-Today Safety Leadership Conference (sponsored by FP, ABC and others) (11/6/18).

Kentucky Governors Safety and Health Conference.

Indiana AGC Safety Conferences.

National Safety Council.

ASSE.

Shenandoah Valley SHRM.

Mid Atlantic Construction Safety Conference.

Colorado AGC Safety Council – especially proactive about silica.

Oregon AGC – Columbia Chapter.

TAUC Leadership Conference.

ABC Florida East Coast Chapter.

AGC Georgia Chapter.

AGC San Diego Chapter.

NBWA.

TEXO: The Construction Association.

 

 

 

 

 

Posted in Uncategorized | Leave a comment

Safety Lessons from Organizations Promoting Effective Management and Safety.

I wish that time permitted us to write more often about the good work done by various groups to improve workplace safety and management. Notable examples include AGC –National and numerous state AGC-Chapters, the National Safety Council, State safety summits or “Governors Safety Conferences,” such as those in Georgia, Alabama, Tennessee, Mississippi, Kentucky and Indiana; TAUC, NBWA, American Foundry Society, American Poultry Association, and many others. We could also talk about the work of insurers and affiliated businesses, such as Willis, ACIG and Zurich. Today I’ll do just that ….

BevCap Management Best Practices Conference.

I’ve spoken at BevCap Management LLC’s  Best Practices Conferences for many years, on topics such as Drugs in the Workplace, Common Workplace Safety Problems, Ergonomic challenges, OSHA enforcement, FMLA, effective HR, and avoiding Harassment and Discrimination claims. I try to attend other sessions as possible to learn the current concerns on these beer wholesalers’ minds and solutions being developed.

This year’s subjects illustrate concerns on almost all employers’ lists:

Vehicle Safety – the legal exposure generated by fleets and even individual auto usage dwarfs that of most other workplace safety concerns. About 40% of OSHA’s annual workplace fatalities involve vehicles. Workers Comp claims by drivers, especially those involved in loading or unloading product are high. And of course, a single accident killing a member of the public can in a single stroke destroy a company’s hard-won reputation. Therefore, it’s not surprising that topics included:

  • A sobering presentation by attorney Gregory Gowan on a Plaintiff Attorney’s Perspective of the Liabilities Associated with Distracted Driving.

 

  • A soup to nuts discussion by attorney Mark Downey on Updating Your Company Driver and Vehicle Policies and the legal issues associated with employee vehicle usage.
  • Rear End Collisions.
  • Strategies Used to Curb Distracted Driving.

Smoking Cessation and Addiction Treatment – Harold C. Urschel III, MD, MMA, Chief Medical Strategist, Enterhealth. Dr. Urschel is the NYT Best Selling Author of Healing the Addicted Brain.

I also spoke some on state law challenges posed by recent new state recreational and medical marijuana laws being interpreted as requiring employers to accommodate employees using Marijuana use – still a small minority. However, Dr. Urschel addressed the more crucial root issue of the rise in addiction problems, especially with regard to heroin and abused prescription meds. There are few more serious and expensive future challenges looming over employers. See our frequent writing about opiates and NYT Author Sam Quinones.

Articles by Dr. Urschel:

Posted in Uncategorized | Leave a comment