Trump/Pelosi: “Let Them Eat Cake”

There are no heroes in the political impasse to extend pandemic relief to workers and small business owners who, through no fault of their own, are struggling to survive due to Covid-19.

Both Republicans and Democrats for months have been using the suffering of the American people to position themselves in the upcoming Presidential election.

The Washington Center for Equitable Growth, a nonpartisan but left-leaning research institute based in Washington, DC, recently observed that frontline workers and small businesses are suffering disproportionately in the pandemic.

The Center notes business is booming for large corporations, like Amazon, Apple and Google, and the S&P 500 is up more than 5 %. Yet, 30 to 40 million people may be at risk of eviction, food insecurity is rising (especially in households with children) and growing numbers of people are suffering mental health challenges.

Marie Antoinette, the queen of France during the French Revolution, supposedly issued the dismissive comment, “Let them eat cake,”  during a 1789 famine after being informed that peasants were starving. The staple food of the French diet was then bread. The phrase is often uttered to denounce the upper class’ callous disregard for the suffering of the poor.

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EEOC Loses Case Involving Dismissal of Long-time Staffer Who Suffered a Breakdown

The U.S. Equal Employment Opportunity Commission (EEOC) has lost a claim in federal court involving its dismissal of a long-time EEOC staffer who suffered an apparent mental breakdown.

Ironically (and sadly), the EEOC is the federal agency charged with enforcing the Americans with Disabilities Act.

In 2017, the EEOC terminated an EEOC mediator who, during the course of a mediation, “suddenly began to act erratically. Witnesses later testified that [the mediator] began using racial epithets and engaging in physical violence toward the parties in the mediation, mistreated his co-workers, and refused to follow orders from management officials.”

The EEOC Failed to Consider the Worker’s “Obvious” Medical Condition

The staffer’s union, American Federation of Government Employee (AFGE), Local 3599, filed a grievance and the case went to private arbitration.

After a two-day hearing and testimony by 11 witnesses, an arbitrator appointed by the Federal Mediation and Conciliation Service found the worker had experienced “a major physical and/or mental breakdown.”  Otherwise, the arbitrator noted, the worker had “an unblemished 19-year record as a Federal employee.”

The arbitrator said the EEOC failed to consider the worker’s “obvious medical condition” when it dismissed him and lacked just cause for the dismissal. The arbitrator ordered the EEOC to reinstate the worker with back pay and benefits.

However, the arbitrator refused to require the EEOC to pay  the union’s attorney fees, prompting the union to file a petition for review in the U.S. Court of Appeals for the Federal Circuit.

The EEOC initially argued the attorney fees were not warranted for two reasons: (1) “in the interest of justice” and (2) because the parties’ collective bargaining agreement provided the Arbitrator’s fees and expenses related be borne equally by both parties.

The three-judge panel said the EEOC “disclaimed” the second argument, which was “plainly invalid,” during the appeal. The court noted the referenced contract provision “does not provide for each party to be responsible for its own attorney fees.”

The Court said the arbitrator failed to articulate a  reason for denying the union’s request for attorney fees leaving the court “with no assurance that the arbitrator rejected that [invalid] argument. Because the EEOC invited the arbitrator to deny fees on that ground, the agency is not well situated to argue that the arbitrator must have denied fees on a valid ground, rather than on the invalid ground that the agency itself proposed.”

The court vacated the arbitrator’s award as to the attorney fee issue and remanded back to the arbitrator “to reconsider the issue of fees and to include a statement of reasons for whatever decision the arbitrator reaches on that issue.”

EEOC: Do As I Say, Not as I do?

As the EEOC notes on its own web site, the Americans with Disabilities Act prohibits discrimination against workers who have a physical or mental impairment that substantially limits one or more major life activities.

The case is AFGE Local 3599, Petitioner v. Equal Employment Opportunity Commission, Respondent, No. 2018-1888 (March 29, 2019).

No Reasonable Accommodation After Threats to Kill Boss, Coworkers

The Alaska Supreme Court has upheld the dismissal of a public works employee who made statements that other employees in his workplace  interpreted as threats.

Plaintiff Tom D. Nicolos claimed his statements did not constitute threats or  misconduct under the personnel rules of the North Slope Borough Department of Public Works but were a cry for help due to a mental health crisis.

Nicolos allegedly told his boss he was “not in a good place” and was having homicidal thoughts. He then allegedly told a counselor that he had a “premeditated plan to use firearms to harm or kill people at his workplace.” The counselor notified Nicolos’ boss.

Nicolos said his discharge violated the Americans with Disabilities Act (ADA).

The Alaska Supreme Court recently upheld Nicolos’ dismissal, ruling  that a threat need not be intentional to constitute violence in the workplace. Alaska’s high court  said an employee can be punished for threatening statements or behavior “so long as it could be interpreted by a reasonable person as conveying intent to cause physical harm” Moreover, the Court said the ADA’s protection does not extend to an employee who is terminated because he cannot “perform the essential functions[his] position … (with or without reasonable accommodations.” The Court said it is an essential function of a job to refrain from making others in the workplace feel threatened for their own safety.


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Michigan Bill Links Bullying & Crime

singsingA lawmaker has introduced a proposed bill in Michigan that would make bullying and cyberbullying a misdemeanor criminal offense punishable by a fine of up to $1,000 and a jail term of up to 93 days.

Republican State Rep.  Dale W. Zorn’s bill also would permit a judge to require an individual who is convicted of or found responsible for violating the anti-bullying law to “undergo an evaluation by a mental health professional at his or her own expense and to receive counseling or other treatment at his or her own expense if determined appropriate by the court.”

 Rep. Zorn’s proposal is one of  the first if not the first proposed bill in the United States to link bullying with crime and mental health. Other proposed legislation in the U.S. is civil  (non-criminal) in nature and seeks monetary damages and/or injunctive relief.

Zorn’s proposed bill addresses both school and workplace bullying. 

 There is precedent elsewhere for treating workplace bullying as a crime. Lawmakers in Victoria, Australia adopted an anti-bullying law known as “Brodie’s Law “that took effect in June 2011 and makes stalking related to bullying a crime punishable by up to 10 years in jail. 

Brodie’s Law was passed after the suicide of Brodie Panlock, 19, a waitress who was subjected to relentless bullying in the workplace. Four co-workers were fined a total of $355,000 (Australian) in 2010 but Ms. Panlock’s parents felt the fine was a slap on the wrist and lobbied for criminal sanctions.

Zorn says Michigan House bill No. 4746 is intended to encourage the rehabilitation of bullies by offering an option for mental health counseling at the judge’s discretion and the bully’s expense. The criminal  charge could be expunged or wiped from the defendant’s criminal record upon successful completion of treatment.

 “The  behavior of bullying has become a societal problem that may need to be eradicated through professional counseling,” he said.

The bill likely would face challenges with respect to the First Amendment to the U.S. Constitution, even though it specifically exempts speech that is protected by federal and state law.

 The bill defines “bully” to mean engaging in one or more of the following behaviors on two or more separate occasions with the intent to frighten, intimidate or harass another person:

     (i) Assaulting or battering that other person.

     (ii) Referring to that other person while in his or her presence with a derogatory or offensive nickname or label.

     (iii) Disseminating false or misleading information about that other person.

It is not clear why the bill prohibits derogatory  or offensive speech in the presence of the individual, but not in the individual’s absence.

In a press release, Zorn said he arrived a the definition of bullying after meeting with school administrators, students, parents, prosecutors and judges.

The bill was immediately referred to the Michigan House Judiciary Committee.