Human Resources 101

The last challenge any manager needs is an employee in crisis. That said, everyone has the potential for crisis. Life brings events and circumstances that are destabilizing and disturbing. Humans respond to this differently in terms of the depth and duration of our reaction(s) and adjustments. As we prepare to present the next iteration of The Point (A Bob Wilson Production, in conjunction with WorkCompCollege.com), mental health is on my mind this week. 

Mental health is a complex and deep set of issues. An author on the subject provided the following interview once:

"SR: So generally speaking, what is it in our brains that can go so wrong and cause mental health problems?
DB: Well, that's a hole with no bottom, isn't it?"

The point he is making is that we are complex. The vast volume of chemical and physical activity in one minute of human life is beyond astounding. Check Just a minute: incredible numbers at play at the macro and micro level, published in the Canadian Medical Association Journal. Your body and mind are amazingly complex and persistent at work in maintenance, sustenance, and renewal. It is, frankly, unbelievable and amazing. 

Part of our foundation is personal and internal, certainly. But, we are social animals and there is a great deal of our lives that depends upon the actions and inactions of others. That person that cuts you off in traffic, the service provider that does not deliver as promised, that neighbor who won't leash his puppy. 

These are human interactions and they impact us. But, a great many of our interactions are at or about work. Our livelihood depends on our success in that environment. And as managers we have to work with a multitude of people who, like us, are imperfect, stressed, and facing challenges. 

There are a multitude of perspectives on the workplace and human potential. Today, a sizeable population of people have no interest in being in a workplace. Time and again, I hear the refrain in our hiring process "the applicants all want to work remote." That was a viable method of limping through a pandemic. For some companies and employees, remote work remains a way of life today. It is not for every employer nor for every employee.

I was recently on a conference call in which an executive described the office as "a ghost town." There was disappointment and pain in that voice. I have met as a guest speaker with various teams by Zoom. Some of those groups relate that they are "never" in the office, and only see each other on a video call bi-monthly at most. Some express that with enthusiasm and verve, others not so much.

Mental health and the workplace. There are potential benefits from remote work. I spoke recently with an attorney who is remote several days per week. The attorney related that life is less stressful because a quick break from work allows time to start a load of laundry, empty a dishwasher, etc. The attorney related that evenings are less stressful because of those opportunities during the day. "

Forbes reported last year on the mental health issues intertwined with remote work. It cited similar benefits

"employees appreciate how working from home allows for a better work-life balance. This may lead to higher job satisfaction and a greater likelihood that they'll stay with the company."

The article goes on to say that remote work benefits employees with anxiety and other "neurodivergent individuals." Cleveland Clinic says that term refers to "people whose brain differences affect how their brain works." Hint for the critics out there, everyone's brains are different and so are all the people that work with those brains.

The challenges of remote work, cited in the Forbes article are

1. "struggle(s) with loneliness"
2. "(blurred) lines between their personal and professional lives"
3. "they might use breaks to take care of household chores. In a way, it's like they're always working."
4. "Focus can also be difficult to maintain."
5. "Personal disruptions—like a dog barking during an important call or a child needing immediate attention—can be harder to avoid."

These are all significant concerns. There appear to be mental health challenges both in remote work and in the office. Likewise, there are apparent mental health benefits from working remote. It is, as are we, complex. 

Employees insist on various surveys that they are more productive when working from home. Supervisors tend to conclude otherwise and often note that supervising remote workers is more stressful for them. 

If one employee is allowed to work remotely, but not all workers, does that cause stress or anxiety for the in-office members of the team? If a worker never encounters coworkers except on a screen is that troubling or challenging? In truth, either paradigm can cause or exacerbate issues, anxieties, and challenges. 

In all work, there are issues of balance and management. The world is full of workplace managers. The world is not full of good workplace managers. I find it amazing how many poor managers and management decisions we run into in the world of workers' compensation. But that is for another day. 

There is an old adage that you can learn a lot from a bad example. The news recently noted such an example at the company that is the "biggest search engine" in China. The public relations manager (that drips irony) "has apologized after her comments glorifying a work-till-you-drop culture." This leader essentially told her employees to "suck it up." The story does not say she called them "snowflakes" or belittled their abilities. But perhaps close. 

In this regard, know that the next generation is not up to your standards. I get that. No "next generation" ever was. Every "next generation" has had it easier than the present generation. They have had advantages. They have not suffered or sacrificed. They are spoiled. My elders said it of me, your elders said it of you. That is an absolute truth, and despite the various elders' perceptions or beliefs, they were all absolutely correct and fatally misinformed. Yes, you can simultaneously be 100% right and wrong in the same thought and moment. You are complex.

This Chinese manager did remind them that she is "not your mother." She tells them to get back to work and threatens that failure or poor performance might motivate her to "make it impossible for you to find a job in this industry." Her tirades reflect the mentality of a "work until you drop" devotion to the job (or to this manager). In or out of the office, such a devotion can take its toll. As I draft this at 01:55, I am wondering if I am trying to convince the reader or myself.

China apparently leads the charge of "work until you drop." there are examples cited of ridiculous work hours, 12 hours daily, 6 days per week. There are anecdotes of asinine levels of focus that causes employees to completely forego and forget personal lives, commitment, and leisure. You are complex and you need both the achievement of accomplishments and the time to slow, stop, and savor the life you are leading. 

In one of the most tone-deaf quotes, the Chinese manager tells subordinates "Keep your phone on 24 hours a day, always ready to respond." That is perhaps among the worst advice I have ever heard. Not that I ever turn mine off. Not that I am short of compulsive in checking mine. But, I make that choice. No one has ever told me to be available 24/7. There is a vast difference between checking your phone constantly and being told to do so. 

The BBC article about the Chinese PR manager is a worthy read. There has been some degree of outcry about her message and the treatment of her coworkers and subordinates. The story drew me back to the challenges of remote work, and comparisons to the conventional workplace.

In the end, there is no difference between the management of in-person and remote teams. There are simple rules that will help managers through either task. 

1. All employees are different
2. The degree of follow up and task management varies
3. Some employees are self-motivated
4. Some employees are detail-oriented
5. Some employees need supervision
6. Some employees need large projects broken into small tasks
7. All employees need to recharge and recuperate
8. Not all people are right for all jobs (sorry, that is simple truth)

Whether in the employee is here or there, management means interaction, assignment, and evaluation. The how, when, and where are all dependent on the multiple variables that make up that job and that employee. I often discuss management challenges with supervisors. They frequently lament that management is difficult. That is true.  They tend to lament tools they lack instead of focusing on the tools they have. That is true. 

The variability of humans, tasks, and details will render all of that absolutely true. The difficulty will always remain. Management will never be easy. Some will make it look easy, but one cannot fall into that trap. That Tom Brady makes quarterbacking look easy does not make it so for everyone. Management is hard. Employees are challenging. Variability is constant. Mental health is unique, fluctuating, and multi-factoral. 

The answers are therefore sometimes difficult. In the end, however, the most important challenge is reasonableness. The employee must be a reasonable contributor to the team and the effort. The manager must be a reasonable leader within the needs of the team and the individual employee. The solid, persistent, management will persistently be a need to fulfill in any organization. 

Expectations have to be personal and reasonable. Do not ask me to quit checking my phone 24/7, but similarly do not tell others that they must check their phones every minute. Recognize people's differences, strive to find their strengths, feed their personal goals to the extent possible, and lead them to outcomes that benefit the organization. Through that achievement, the employee grows and finds self-worth. The organization benefits through production, earnings, and more. 

Easily said. But, keep in mind that if management was either easy or unnecessary, the company would not need you. And no matter if you are the CEO or working in the mailroom (an antique illustration of a starting job in the bygone era of paper), someone is likely struggling to manage you as well. Are you communicating with her/him? Are you frustrating her/him? Are you focused on your mental health and considering theirs?

Register for The Point. It will be a lively discussion of mental health and various challenges we face personally and societally. 

She Must Go

An intriguing story started last November when a Douglas County Probate Court Judge was before a Judicial Qualifications Commission in Georgia. The whole story is reported in detail on Law.com. Fox5 Atlanta reported last summer that she faced "40 allegations of alleged judicial misconduct," after ten others had been dropped by the Commission because "some did take place before...her candidacy."

The trial of the judge went on for days. That in itself is not necessarily common. I have been following judicial discipline decisions for decades, and it is far more likely for a judge to admit error, seek mercy, and move on. But, there is no reason for a judge to do so if he or she believes there are insufficient grounds. Fighting for what is right is admirable.

The judge testified at some length regarding the allegations. The Commission concluded that her "attempts to avoid responsibility for these clear violations bordered on farcical, severely erroding her credibility." Credibility is critical in any witness. Stick to the facts, be consistent, and your odds increase. 

One complaint had to do with disregarding courthouse security. That incident resulted in revocation of the judge's "after-hours" access to the courthouse. There were allegations in the defense that the accused judge had been subjected to "a contentious judicial atmosphere" and that there was "discord between judges" that led to some "snarky" correspondence from the accused judge. She apparently questioned a colleague "How are you a judge?"

Judge Peterson testified that she believed she was treated unfairly. She perceived that she "was, in essence, convicted guilty (in the investigation process) until proven innocent.” Commission members expressed perceptions of discord. There were allegations that the Judge's testimony about her correspondence was "confused" and that “the evidence [didn't] line up with the testimony.”

The prosecution highlighted education that had been provided about the Code of Judicial Conduct. There was emphasis that the judge had been provided a mentor "at least for the first year of...judgeship." Other witnesses attested to Judge Peterson's intellect and her adherence to process. In short, there were witnesses both for and against. 

There was emphasis on her ex-parte communication with "her HOA" in an attempt "to settle a lawsuit she had filed...though she knew the HOA was represented by an attorney." It is undeniable that the Code of Judicial Conduct precludes ex parte communication (though perhaps not in this context), but so do the Rules of Professional Conduct that apply to all lawyers (including those appointed/elected to the bench). There are rules about speaking to represented parties. Every lawyer knows them. Every judge knows them. 

The news report notes the contempt decision, which the Commission characterized as "a hasty and sickeningly disproportionate reaction." That involved a lady who wanted to correct a public document. She was sentenced to two weeks in jail for contempt and served two days. The contempt charge appears to have been viewed by the commission as untoward and unnecessary.  

Contempt is an incredible power that must be used very sparingly and respected. Too many constitutional judges joke about contempt. Too many judges have been quick to employ it. It is powerful and therefore requires great restraint and respect - from those it threatens and those who have the power to employ it. It is not for simple instances of mistake, lost patience, or frustration. 

There were allegations about social media use by the judge. The argument was raised that “actions taken outside a judicial capacity can warrant discipline only when taken in bad faith.” The judge argued that in the absence of evidence of "bad faith," the commission should dismiss the social media allegation. But, there are significant constraints on judicial comments and statements. That they are made off the bench or on social media does not change that. 

When the prosecution rested, the judge's attorney moved "for directed verdict," a decision by the commission that the case had not been proven. It was denied. Just to be sure, the judge's other attorney "move(d) for directed verdict on all counts contained in the JQC’s complaint." The case nonetheless moved on to the defense's witnesses and evidence.

The prosecution sought sanctions to limit harm to the public and the court. They suggested training, and supervision by other judges in any situation where contempt was discussed. The defense argued: 

"There’s no judge in the history of American jurisprudence that had 50 counts [of ethics violations] and yet we stand here today, after two attempts to remove her from the bench, and 20 or more of those 50 counts have been dismissed or withdrawn by the Judicial Qualifications Commission.” 

Essentially, that argument is that if a prosecutor chooses not to pursue all the charges it must equate to innocence. Prosecutors elect to forego millions of charges in the U.S. every day. That equates to efficiency and prosecutorial discretion. It does not equate to innocence in each instance, though that decision might the subject of such an argument. 

Thus, the lawyer argued “This is not a judge, that, in my view, even comes close to somebody that you would remove from the bench.” But, the Commission disagreed. 

One might find it curious that 50 charges were perceived by the defense as grounds to conclude that the judge should not be disciplined. The unprecedented "50 counts" may seem to some an indicator of problems. To others, perhaps it signals unwarranted persecution. Certainly, there is not fire whenever there is smoke, but as the volume of smoke rises the search for fire will likely intensify.

Fox 5 Atlanta reported April 1, 2024 that Judge Christina Peterson has been found "guilty of systemic incompetence" and that "she must go." The recommendation of the Commission was reportedly unanimous. Its conclusions were founded on "ignor(ing" courthouse rules, abuse() of courthouse personnel...inappropriate posts on social media," and failure to perform the job. 

There are some who excel at "the judging business" and others not so much. When allegations of wrongdoing arise, they must be investigated and conclusions must ultimately be reached. The lessons for judges are clear. Treat people with respect, check your black robes disease at the door, remember that you are a judge 24/7, and remain vigilant with your social media (like this blog post). 

Diligence, Efficiency, and Promptness

Hon. John Beamer is a Circuit Judge in the Ninth Judicial Circuit, which includes Osceola County, Florida. Osceola is just south of Orange County and includes the city of Kissimmee that many will associate with theme parks, hotels, and tourists. Judge Beamer was appointed just before the onset on the SARS-CoV-2 pandemic, taking the bench the month before that strange time began. In fairness, adapting to a new job had to be difficult in that moment.

Judge Beamer, like all constitutional trial judges in Florida has to face the challenge of re-election periodically. It is generally every six years. However, when a new judge is appointed, they must stand for retention election more rapidly at the outset. Judge Beamer was reelected in a primary election in August 2022. His current term runs until January 2029.

Judges in Florida are subject to a process of discipline that includes the Judicial Qualifications Commission or JQC. Complaints can be lodged there and the Commission is charged with investigation and recommendation. It cannot punish a judge. That falls exclusively to the Florida Supreme Court.

Following a JQC investigation, the Florida Supreme Court rendered Inquiry Concerning a Judge, No. 2023-153 re: Hon. John Beamer, No. SC2024-0284 (Fla. May 9, 2024). The Commission investigation revealed "dozens of cases and significant delays in rulings and orders." The Commission concluded that the judge was "counseled repeatedly without result.” When inappropriate behavior is identified and illuminated, there is benefit to all in there being both acknowledgment and remediation.

For some, there is an immediacy that is created by official action. It is different when a co-worker or chief judge points out a deficiency or problem than when an official body like the JQC does so. Channel 35 Orlando noted that filings indicate the

"chief judge of the 9th Judicial Circuit, which includes Osceola County, met with Beamer on 'no less than three occasions between late 2021 and early 2023 to discuss complaints about his delays in entering rulings and to stress the importance of entering prompt rulings.'"

The Supreme Court noted that when it undertook an investigation,

"The Commission also noted, however, that the Respondent immediately accepted responsibility for his conduct; cooperated with the Commission's Investigative Panel; and, both before and after receiving a notice of investigation, took steps to address the backlog of pending matters."

Those are critical. When you have a problem - admit it. When you fail, address it and improve. The JQC here entered a stipulation with the judge that his delays in entering rulings "violated Canons 1, 2, 3B(8), and 3C(1) of the Code of Judicial Conduct." These address performance of work "promptly, efficiently, and fairly" and diligence in "administrative responsibilities.

Judge Beamer was publicly reprimanded last week by the Florida Supreme Court. The investigation findings provide minute detail that includes "24 cases with final judgments pending more than 60 days." and 10 cases "pending more than a year since the trial." The parties in some of those cases have had meetings with the judge ("status conferences") to discuss the delayed rulings.

This is an interesting decision by the Court. And there are parallels certainly with the Florida Office of Judges of Compensation Claims. The primary parallel is that the judges of this office are bound by the same Code of Judicial Conduct. Section 440.442, Fla. Stat. That has been true since 1978 in one form or another. No JCC can claim to not know that.

Diligence is expected of constitutional judges. But, diligence and timeliness in the Circuit Court arena are more vague and subject to interpretation than in workers' compensation. In Chapter 440, this office has requirements for timely mediation, trial, and order entry. Section 440.25, Fla. Stat. These parameters of 130 days for mediation, 210 days for trial, and 30 days for trial order are also not new.

Those parameters have been part of the statute for over twenty years. Every lawyer who has practiced workers' compensation knows these statutory parameters. Almost all of the judges have experience with them from practicing law (not Judge Lewis or Medina Shore as they have been on the bench since before those parameters were legislated in 2001). And, critically, every judge has been reminded of those time parameters with each Annual Report of this Office since 2006.

There is no Judge of Compensation Claims that is not (1) aware of the requirement of timely orders, and (2) bound by the requirements of diligence, efficiency, and promptness set forth in the Code of Judicial Conduct.

It is troubling to see Judge Beamer publicly reprimanded for his delays in ruling. His delays are significant and unflattering. His explanations that delays result from "his own inadequate time management practices and work-flow issues" cannot have been easy admissions. I admire him for his candor and commitment to performing in a more timely manner. 

His struggles are impacting Floridians, and are now quite public. What judges have to remember, though, is that such delays are often the subject of ridicule and disrespect in hushed tones among lawyers long before they are truly "public" as in this instance. 

Judge Beamer has now been discussed by Channel 35 Orlando, Channel 9 WFTV, the Orlando Sentinel, and Law360. Such exposure and public discussion have to be disconcerting and upsetting. Every judge believes themselves capable and effective. In fairness, judging is an extremely difficult job and requires our very best every day. It cannot demand perfection because it is a human occupation. But it is not too much to ask for diligence, efficiency, and promptness.

Such a reprimand is a good opportunity to refocus. In truth, no one can erase yesterday; that there have been unfortunate cases in which untimeliness has occurred in the past. The hope is that with correction can come growth and a new tomorrow. That is what the Chief Judge in Osceola undoubtedly hoped when those meetings occurred. That is what the lawyers hoped when those status conferences occurred. That is what the Supreme Court hopes now that a reprimand has been required.

Bluntly, there is no merit in delay. Trial orders do not get better with age. Wine does. Cheese does. Wisdom does. But even wine turns to vinegar and cheese turns to dust. Time will not make the judge's decisions easier, the order drafting easier, or somehow the job easier. Delay will only bring accumulation of unaddressed orders, pressure, and stress. 

Everyone is rooting for the judge to rebound from a troubled start. There is admission of delays, violations, and shortcomings. There is a commitment to grow from the challenges and to meet tomorrow with a renewed spirit and verve. Certainly, there are high hopes for tomorrow. And, as certainly, there is the probability of ongoing public scrutiny. 

The best advice for any judge? Get the orders out today. Focus on the task at hand. Eliminate distractions and invest in getting the job done. Know from your peers that timely and effective performance is not only possible but quite common. Know that if your peers can do it, you most certainly can also. You need only decide that you will. 

Hubris and Petulance

There are a great many judges in this world. The idea of a judicial system is reasonably universal, though the stature, dignity, and independence of those display some significant degrees of variety across the globe. 

In the United States, there are something more than 30,000 judges. In such a broad field of people, it is likely difficult (at best) to distinguish yourself. How does one stand out from the crowd?

A suggestion, humbly, would be that there is no reason to stand out from the crowd. The job before us is one in which doing the job, day after day, with humility, consistency, and dedication is a tribute to the serious challenges people face and the critical role that judges play in analyzing conflicts, facilitating discourse, and steering disputes to resolutions.

The purpose of a judge is not to find Andy Warhol's promise. Supposedly, he said that "in the future, everyone will be world-famous for 15 minutes." There is some doubt about that attribution. And, there is some criticism. Comedian Daniel Tosh is quick with that quote and to explain the 15 minutes is an average. He then points out those in the audience who will get "zero for you, you, you, you, zero, zero, zero, zero, zero" so that Mr. Tosh can have far more than 15 minutes in that "average" conceptualization.

Judges are like cooks. Our job is largely to deal with a process that is imperfect. It is said to be an art, more than a science. In fairness, art is often in the eye of the beholder. People actually look at Picasso's work, believe it or not. Not my cup of tea, but that is what makes the world go around. 

Much of the meal is determined by the groceries. If all you bring us is unripe kumquats, banana pudding mix, and a can of spam, you can hardly be shocked when the judge doesn’t conjure a gourmet meal as a result. Ok, you can be shocked if you want to be, but your credibility will take a serious hit.

In the naïveté of our youth, we were all led to believe that such judicial positions naturally attract the best and the brightest. To be a judge, you must have something on the ball, right? In truth, judges are no more likely to be exceptionally smart, than college professors, counterworkers, or floor moppers. There is no inherent characteristic. Much of life comes down to luck and opportunity. 

Thus, appellate judges are no more intelligent or sensical than any other judges. But, at least, they tend to make decisions through a collective and sometimes collegial process. That collective effort and ample reflection time perhaps round off some rough edges in trial decisions they review. Their collective wisdom is maybe less fallible than any individual's? Well, if it makes you feel better to cling to that, that itself has value. 

Our story today is of a Nevada judge. Fortunately, or not, she recognizes her own indefatigable superiority. She is gaining 15 minutes of fame because she has made up her mind, and will not be swayed. She, perhaps sees herself as the “man who can't be moved.” As irrational as it may become, she just keeps repeating "So I'm not moving, I'm not moving." The Script, RCA, 2008. 

No, when the Nevada Supreme Court told her she had erred and reversed in 2022, she stood her ground. The matter was brought to the Supreme Court a second time, and surprisingly, perhaps, like your mother (“what part of no didn’t you understand?“), the court agreed with itself, and told the judge again in 2023 to follow its previous instructions.

So, perhaps the court delivered clarity and its second iteration. Nonetheless, the judge in Nevada is too brilliant to be swayed by the missives of the states highest court. Convinced, perhaps of the Supreme Court's misconstruction, misinterpretation, or misapprehension, the trial judge remains steadfast in her decision.

Oh, and in her hubris, abstinence, and petulance, she earns 15 minutes of fame.

Not fame for being the calm influence through a difficult trial. Not for being the stoic ear that hears people out despite their feelings. Not for being the diligent decision-maker sorting through competing arguments. Not for the patient and dignified work of the work-a-day judge. 

No, she earns her 15 minutes of fame for being disrespectful, defiant, and disruptive. It is disappointing in this nation of laws, to witness those who flout it. It is worse when those who defy it are the very scholars that have been appointed or elected to uphold it.

Remember, Daniel Tosh? Kudos to the judges who’s lifetime “fame accounts” equal “zero, zero, zero, zero…” But as he mentions, it is an average, and this judge is studiously making up for their fame deficits. 

I have written about this Judge previously. One might recall It's the Appearance (February 2024) in which this judge's social media activities were featured. There she is not necessarily the dignified embodiment of scholarship and decorum. She posted bathing suit photographs on social media. 

That, in itself, is not a sin. I’ve had my picture taken in a bathing suit Admittedly, I have never posted photos of that on social media or elsewhere. There are things in this world worse than me in a swimsuit, but not many. 

But in that instance, this judge posed with friends in a hot tub. Before she was a judge, she was a public defender. Those she posed with in the tub are current public defenders. There is some potential for perceiving ongoing friendships and connections between those attorneys and the judge. Those attorneys and their colleagues appear in court before that judge. 

There is, at least, the potential for an appearance of impropriety in the judge's hot tub escapades. The photos show to some poor judgment and lack of decorum. They are inappropriate and unfortunate.

But, the more recent Supreme Court order is far more disturbing. The hot tub is a problem with intellect, appearance, and the Code of Judicial Conduct. The problem with refusing (twice) to do what the Supreme Court says is petulant, immature, and rebellious.

It turns out, in Nevada, that the Supreme Court apparently cannot tell Judge Erika Ballou what to do. She will not follow the orders of the state's highest court. So, more recently, the Court ordered "District Court Judge Jerry Wiese" to assign the case in question to a different judge.

District Court Judge Eric Johnson apparently proceeded within days as instructed by the Supreme Court. 8 News Now reported that it took this judge mere hours to follow the Supreme Court's decision and directions. Perhaps following instructions is not so hard after all?

Judge Ballou's punishment for not following orders of the court? She has her workload decreased and places the burden of her work on another judge. One of the not famous, workaday judges down the hall who is merely getting the job done each day rather than lounging in hot tubs and ignoring the state's highest court. 

In fairness, it is the trial judge's job to manage a docket. The trial judge is burdened with a myriad of challenges and decisions on a daily basis. It is a difficult job that requires attention, patience, and persistence. In short, it is not the job for everyone. Intelligence? Sure that helps. But in reality, it requires work, dedication, and focus.

Judge Ballou wasted taxpayer money. She exhibits a disrespect for the law. She demonstrates contempt for the state's highest court. There has been an embarrassment to the judicial profession.

If there is a glimmer of positivity, I find it in the miles between Florida and Nevada. It is a small solace, but at least this is not happening here. They say you can learn as much from a bad example as you can from a good one. I am grateful that this lesson is long distance.

So, 15 minutes for Judge Ballou, 15 minutes for Nevada, "zero for you, you, you, you, zero, zero, zero, zero, zero." All of those "zero fame" judges with their heads in the work, with their hearts in the job, getting it done every day and not being famous, good for you. 

Surreptitious Recording

A curious instance of legal misfeasance occurred some time ago. It was brought to my attention just before it was referred to the authorities. The litigation had been ongoing for several years and late in 2022 a motion was made for appointment of an Expert Medical Advisor. About a month later, an EMA was appointed and trial was continued to accommodate the evaluation and testimony.

There was later an objection to the EMA provider. This was premised in part on the requirement for a "conflict of interest" form. The objecting party noted that the form "form was never returned to the JCC according to the Court File." This seems to refer to the OJCC file, merely a lazy reference to "court."

The objecting party also noted that the EMA charged a significant fee for the examination and other services. There were allegations that those exceeded what the law allowed. This included a schedule of charges including "$1,000 per hour to read records." Arguments were made of indifference to this fee amount, and allegations of the carrier being "complicit in concurring with this with this knowing violation." There were other complaints voiced regarding the charges for a deposition (another $2000).

To this point, the case was somewhat familiar. There have been various instances over the years in which medical charges have raised questions. The parties elected to instigate a joint call to the assigned judge's office to discuss perceptions of the fee issues. One of the attorneys decided that it would be prudent to record this conversation. There are two red flags in this paragraph.

First, the OJCC staff is not empowered to remedy substantive issues for the parties. There is no valid purpose for attorneys to engage staff except to seek scheduling assistance or advise of challenges or problems. State staff is not who to ask for relief, see Rule 60Q6.115. 

The second red flag is the recording of the call. Any Floridian should have seen that immediately. If you are a lawyer, you should have seen it even sooner. 

So that there would be no denying the recording occurred, the lawyer in this instance embedded a link to the recording in a pleading and filed the pleading with this Office. That lawyer was seeking various relief from this Office, and included this recording link. An important point is that anything filed with this Office is a public record. This pleading, in which the recording is described and linked, is a public record.

Essentially, it is a public record that says "I broke the law, and here is the proof." 

Florida is what is referred to as an "all-party consent state." That means that if a person has "a reasonable expectation of privacy (e.g. not in a public place)" then making a recording of that person without their permission may be a crime. See Recording Phone Calls, and Conversations, a 50-State Survey, Justia.com.

In some instances, violation of the Florida statute, section 934.03 is "a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41." That is problematic. Lawyers, you see, are not supposed to commit felonies (in fairness, no one is supposed to commit felonies). The Bar frowns upon criminal activity. As important, The Rules Regulating The Florida Bar (3-4.3 and 3-4.4) may be of interest in the whole "felony" arena.

The Florida Fourth District Court has noted that "section 934.10, Florida Statutes (2019), ...creates a civil remedy for violations of the Act, including unlawfully recording phone calls without the consent of all parties. See § 934.10(1), Fla. Stat. (2019)." Race v. Mitchell, 357 So. 3d 720, 722 (Fla. 4th DCA 2023), review granted, No. SC2023-0432, 2023 WL 4270985 (Fla. June 29, 2023).

So, perhaps one might face both civil and criminal penalties for recording someone without their knowledge. And if the recording is done by a lawyer, then there could be broader concerns with The Bar. 

In this regard, the actions of staff may be the lawyer's responsibility, see Rule 4-5.3, Rules Regulating The Florida Bar. Potentially, the staff could commit the crime and/or be civilly liable, but the lawyer could face Bar discipline for the staff's actions. Some might successfully argue that same staff is an agent of the attorney or law firm and seek those civil damages from the lawyer under the theory of respondeat superior. 

Making surreptitious recordings of people without their knowledge may be problematic. Admitting to having done so, in a public record filing, is perhaps not the brightest maneuver one might contemplate. The criminal referral in this particular matter did not result in a conviction. Nonetheless, the behavior justifies serious consideration and thought. 

A lawyer prosecuted for breaking the law might run serious risks of penalty. A conviction might even impact the lawyer's ability to practice law. "As guardians of the law, lawyers have a special obligation to honor the law themselves." The Fla. Bar v. Behm, 41 So. 3d 136, 139 (Fla. 2010). See Rules Regulating The Florida Bar, Rule 3-4.3 and 4-8.4(c). 

It would seem untoward at best to record conversations in Florida without the consent of the others on the call. It is an important thought for all, but more so for a licensed attorney. Making a recording is a bad idea. Making a public record admission that you have done so is beyond foolish. 

$1.7 Million Toilet

Some perceive a housing crisis in America. The Supreme Court recently took up a challenge in which some seek to preclude towns or other localities from banning camping on public property. There is a population that believes people should be able to do as they wish, where they wish, and when they wish. From that perspective, the belief is either society provides these people with accommodations or they should be free to camp when and where they choose. Some places have digital maps to help pedestrians avoid the feces on the sidewalks instead of punishing those who do the defecating. Purpose (October 2023). 

An Oregon city reportedly made "it illegal to sleep outdoors in public spaces." When the city enforced that (there was an effect on someone, not merely words), some of those who were punished sought review of the ordinance alleging that it "violate(s) the Eighth Amendment’s ban on cruel and unusual punishment." The argument is seemingly that putting people in jail for breaking the law is cruel and unusual. Or, that criminalizing the unfettered use of public space is cruel and unusual.

Justice Kagan elaborated and suggested that sleeping and breathing are similar. She says that the unhoused (she called them by the pejorative "homeless") have "no place to go." For them, she suggested, "sleeping in public is kind of like breathing in public.” So, is defecating in public like breathing in public? Is exposing oneself in public like breathing in public? What human function is not like breathing?

According to The New Republic, the U.S. Supreme Court seemed reluctant to prevent the operation of the Oregon ordinance. It seems, to some observers, that the Court will not conclude people have unfettered rights to do as they wish, where they wish, when they wish. However, there are those who fear that any acquiescence to any punishment of the unhoused, by the Court, is essentially to "green-light laws that effectively criminalize homelessness" (The New Republic used the pejorative "homeless").

This is interesting because it illustrates a constitutional conflict that is challenging on several levels. In a recent post, I suggested that no constitutional right is absolute. In Conflicting Rights (April 2024), I suggested that there is a persistent friction between the rights of various persons. You are free to have the Roling Stones play for your backyard party, despite it disturbing your neighbors; but, if the music goes on until 02:00, there is a sound argument that the needs/rights of the neighbors may overtake your needs/rights to hear your band.

And that is with the Stones. Imagine instead that it is Miley Cyrus performing in your neighbor's yard. She, after all, comes in like a "wrecking ball." Or worse, Billy Ray Cyrus and his Achy, Breaky, Heart. The horror! 

The unhoused debate is perhaps similar in that the rights of some may abut the rights of others. Do those whose daily labors and taxes support a community have a right to live and work unaccosted in the public areas of their communities? Or, do the rights of the unhoused somehow trump their rights? Is this a ban on the unhoused, or a ban for all people? Under Justice Kagan's analysis, perhaps any of us should be free to do as and when we wish? Time will tell how the Court interprets the appropriate outcome of the friction.

Housing is expensive. Forbes notes that "the U.S. median home price was $412,000 in September 2023." That is a significant amount of money. According to the National Association of Home Builders, the average American home has 2 bathrooms. If one ignores the kitchen, bedrooms, and more, that comes out to about $206,000 per bathroom.

This introduces another issue with the unhoused and a news story from San Franciso (you remember, where feces is on the sidewalks). USA Today reports that city has just opened a public bathroom (no bedrooms, kitchen, etc., just a bathroom). Remember when you could get a "solid gold toilet" for a mere $6 million. Those were the days. Well, the officials in charge of the Noe Valley Town Square recently went to work on a toilet which initially was estimated to cost "$1.7 million with a two-year timeline."

Some are convinced that would be quite a toilet. In the end, the city did not pay that. It received a donation that saved it 

"$115,500 on construction, $91,800 in project management fees and $90,000 in architecture and engineering fees"

Yes, you read that right, $90,000 in architectural fees for the toilet. According to Career Explorer, the average annual salary for an architect is about $80,000 and Glass Door says for an engineer it is about $86,000 to $156,000. That is for a year. of work The $90,000 above is for a toilet. Talent.com says a construction manager's salary for a year is about $65,000. Does it take a year to build a toilet? How much is really involved in designing a toilet? Have there been any toilets previously designed that we might just copy?

In the end, the city managed to install a single toilet, with drinking fountain on the outside, for about $200,000. The savings were not accomplished through decreased efforts or material, but through donations of materials. But for the donations, it is likely still about a $1.7 million toilet. The cost of things is beyond preposterous. A single toilet for half the price of the median American home? No one is apparently surprised. 

I previously wrote about a contest to design a new garbage can. These are the Good Old Days (December 2022). That noted a city (coincidently San Francisco again) holding a contest for what would replace its 3,000 street-side garbage cans. The city spent more ($500,000) on that contest than it spent on the recent toilet. It could have had 2.5 toilets, at a ridiculous price, instead of a trashcan contest. One of the entrants in the can contest was a unit that cost $20,000 each. Imagine the hubris that comes with a refuse container at that price. 

The contest concluded with a decision to buy the "Slim Siloutte," a unit that cost less than $19,000 to prototype. The good news is that with mass production, these can be built and delivered for only $3,000 each. According to Mission Local, there was an alternative that cost "only" $630 per unit. Apparently, the city has picked the $9 million alternative ($3,000 x 3,000)(that is equal to 6 public toilets at $1.7 million or 45 toilets at the still ridiculous price of $200,000 each). But, the can replacement may be on hold because of "fiscal constraints."

Comedians have apparently been critical of the new San Francisco toilet. Is there any feeling of fiscal constraint in the marketplace? How many unhoused might have a charitable bed for $20,000? $200,000? Or, how much might taxes be reduced on the rest of society if less were spent on folly and failure?  

The USDA estimates you can feed a person for a day for about $4.00. San Francisco estimates it has about 7,754 experiencing unhousedness. So, perhaps alternative uses of the folly money would be to feed those people, for this many days:

$20,000 can cost = .6 days

$500,000 can contest = 16 days

$1.7 million toilet = 55 days

$9 million replacing waste cans = 290 days

Or, the city could pay someone to scrape the feces off of its sidewalks? Or, it could enforce the law and stop people from defecating on the sidewalks. Or, is it cruel and unusual to punish people for defecating in public?

A challenge may be that those who have money tend to find ways to spend it. Google "city lowers taxes" and see how many news stories pop up. There will be a few stories about decreases in state taxes in the wake of the SARS-CoV-2 pandemic. But, for whatever reason, there are no stories about municipalities lowering taxes. Google "municipalities spending on ridiculous things" and for some reason, there are multiple examples. In fairness, that query returns local, state, and federal folly and absurdity. 

The idea that banning camps of the unhoused, is cruel and unusual is at best anachronistic. See Conflicting Rights (April 2023). Where Justice Kagan gets off the path is not in her contention that sleeping is as fundamental as breathing. The departure from reality is that anyone has any fundamental right to do anything particular in the public domain. There is nothing untoward about building a public restroom, but overpaying for it is senseless. 

Rights Collide (February 2016) in society. That you have a fundamental right to sleep or to breathe does not mean it persists everywhere at every time. I suspect that Justice Kagan would not agree that the unhoused have a fundamental right to do either in her living room or even her front yard. If she believes that they do have such rights, and those people, in fact, do stay with her family, Google has produced no evidence of such accommodation. 

Urinating is a lot like breathing, but we still restrict where people may or may not do so. 

Procreation is a lot like breathing, but we still restrict where people may or may not do so. 

Defecating is a lot like breathing, but many of us still restrict where people may or may not do so (the City by the Bay proves Jung's hypothesis of rules). 

When people are constrained in their activities, fined, or jailed for violating society's laws, is it "cruel and unusual" because their activities are fundamental? May we dictate where people go, exclude them from certain buildings, or constrain their activities there? Is speaking your mind a lot like breathing? As Justice Kagan suggests, is the fundamental test whether one's activity is "like breathing?" Perhaps, or maybe that is an oversimplification?

Why are the rights of some exalted at the expense of others? Who is to make such decisions? Will it be the same people who see no excess in the $1.7 million toilet or the $20,000 (or even $3,000) garbage can? 

Dopey

Dope is not a new topic. In Florida, we await November to see if the people will constitutionally de-criminalize dope. The vehicle for this effort is Amendment 3, and it was cleared for the November ballot by the Florida Supreme Court, according to the USA Today network. They refer to this as "recreational weed." Of course, there is no medical purpose to weed, so "recreational" is all it could be. But wait, stay tuned (see further below).

For other points about dope, see Edibles and Illness (November 2023); and Dope and Heart Disease (March 2024). There are many links in the Heart Disease article. Back in 2021, I addressed the decriminalization challenges and noted that there is a fair amount of disinformation out there about ganja. See Decriminalizing Marijuana (May 2021). There, I recount some examples of unfortunate people who lost jobs because they partook of the dope and ignorantly believed it was "legal."

Of course, marijuana is not "legal" anywhere in the United States. The Federal government has frustrated enforcement of the ban on dope, leading the Federal authorities to look the other way as people illegally sell it on virtually every street corner. States, in turn, have decriminalized the drug on the foundation of "medicinal use," though it is listed as a Schedule I Drug, meaning that the Federal Government considers it "to have no accepted medical use and a high potential for abuse."

There is some very deep hypocrisy in that. If it is so dangerous, why is the Federal Government ignoring the mass production and retailing of Mary Jane? If there is no reason for the Federal Government to enforce its laws against this stuff, why doesn't it own up to this and simply re-classify or legalize weed? The Associated Press (AP) announced this week that the Drug Enforcement Agency will reclassify, but weed will remain a "controlled substance."

The report claims it will move from Schedule 1 (where we find "heroin and LSD") to Schedule III (with "ketamine and steroids"). This is said to be a recognition of the "medical uses of cannabis." The AP story also uses the "L" word repeatedly in referring to the actions of various states in decriminalizing dope.  

Time and again, as noted in the linked articles, people have lost jobs. Often this occurs when they are hurt at work and sent for a drug test. They test positive and are not surprised. The surprise comes when they are informed that weed is illegal and that there are two outcomes:

1. the employee's workers' compensation claim is denied on the premise that the dope caused the accident.
2. The employee is separated from employment on the premise that marijuana is illegal.

The hue and cry is often "but its legal." And no, Virginia, it is not. But "the news says it is!" That is too true. A simple Google search will locate lots of examples. I have attended many seminars at which reasonably intelligent speakers have both exalted the benefits of dope and parrotted the "legal" adjective. They take real umbrage when you point out that they are wrong (in fairness, who doesn't).

So, Florida will soon have a choice. The good folks at Ballotpedia are helping to feed the disinformation, trumpeting that the proposed Florida amendment would "legalize marijuana."

The headline at Politico says similar. As this initiative is pending, there is an intriguing case that the Supreme Court of the United States (SCOTUS) will take up. The appeal is being pursued by a company called Oxymoron Inc. (not really, it is actually "Medical Marijuana Inc.,"), which might be pretty close. The company has been producing and marketing products that are derived from or based upon dope.

The case involves a worker who was suffering from chronic pain. He self-medicated with a "CBD-rich medicine” marketed by Oxymoron Inc. Apparently, the advertisements were clear that the product was "hemp-based," but also promised that it "did not contain THC, the active ingredient in marijuana."

Well, believe it or not, the worker used this "medicine" and then "failed a drug test and lost his job." He is relying on "the Racketeer Influenced and Corrupt Organizations Act," which is shorthanded "RICO." It was passed to "go after mobsters and others." In case you missed that, let's slow it down. It is a law that was passed to use against people operating criminal enterprises (like manufacturing and selling something that is illegal?).

This is a civil lawsuit and the worker is seeking damages. He believes that the advertisement and denials of THC content were misleading. He is seeking actual damages (what he lost in being fired) and alleges that under RICO he should "get three times the amount of actual damages and attorney’s fees."

The Oxymoron, Inc. group asked a court to dismiss the lawsuit. It sought dismissal of the suit. The District Judge, however, concluded that the loss of work is a "business" loss within the meaning of RICO.

To what extent may this impact the growth, production, and marketing of weed? Is it likely that SCOTUS will conclude that it is appropriate for the producer and marketer of this illegal substance to face consequences for its representations? More importantly

Will those manufacturers potentially face damage if a dopey driver gets fired for an auto accident? What of the dopey business owner who loses a contract due to some Federal Drug-Free Workplace provision? What about if someone loses their job due to lung cancer from the "harmless" weed? And, what of the doctors who are marketing or recommending the ganja? Are they innocent and appropriate, or might a plaintiff name the dope doctor as a co-conspirator?

Do weed producers have liability insurance to protect them from the threat of damages based upon misrepresentation or mistake?

If there are civil damage awards under the auspices of RICO, might a prosecutor somewhere elect to take a RICO shot at criminal charges?

The topic is intriguing. The emotions around Canibus run high. The grass folks will likely be watching this case as it progresses. It is possible that Disney's dwarfs might describe the outcome. Will it be 

1. Sleepy,
2. Happy,
3. Grumpy,
4. Doc, or
5. Dopey?

Another Contract(ion)

Decisions of the Supreme Court of the United States are usually on very broad topics that touch on fundamental elements of rights, obligations, and interactions. There are periodic instances in which that court delves into employment issues, but it is fair to say its forays there are somewhat infrequent. 

In April 2024, the Court quietly rendered Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. ___ (2024). At the outset, it sounds like a reasonably innocuous contract case, but it has significant potential implications for employment.

Arbitration clauses are included in many contracts. Arbitration has been discussed here before, Arbitration News in Workers' Compensation (February 2020); Epic New Prime (January 2019); Is There a Spoon or are We Bending (June 2013). There is a great deal to understand about arbitration, but in a general sense, it is a method of deciding disputes.

A fundamental of such clauses is that the resolution occurs outside of the court system, just as most workers' compensation claims do. That means that there is no jury in the determination of liability or damages. Arbitrators, essentially private judges for hire, make decisions in arbitration proceedings.

Arbitration has long been a hallowed contractual agreement. Despite the right to access to courts, parties have generally been free to make contracts regarding a number of topics, including employment, and to include requirements that disputes will be arbitrated. It is very likely that everyone who reads this has so stipulated to arbitration in some contract they have signed. These are very common in such things as auto purchases. They are also common in labor agreements.

Bissonnette emanates from a labor agreement, a contract. The law generally favors contracts. I tell my classes that contracts make the world go around. My students are generally legal novices whose dreams are not about law school but about business ownership. They envision entrepreneurship and make grand plans. I am hopeful for them and envious at times of their ambition and youth.

The plaintiffs in Bissonnette signed contracts of employment through a collective bargaining agreement. There, they each agreed to operate vehicles and to deliver the products of the employer, bread and cakes, to the marketplace. Their negotiated contracts included clauses that say any disputes under the contract will be resolved through the more rapid and less unpredictable (perhaps) arbitration process.

Arbitration is governed by the Federal Arbitration Act (FAA). This is a federal law that impacts the rights people have to contract as they wish. Not different, perhaps, from the right to include a non-compete agreement in a contract. See The Baby and the Bathwater (April 2024). The Federal Arbitration Act does not cover any "class of workers engaged in foreign or interstate commerce." This is a direct tie to the Commerce Clause, Article I, Section 8, Clause 3, U.S. Const.

There has been a general belief that this exclusion is "limited to workers whose employers are in the transportation industry." Thus, the Act would not apply to someone who worked for ABC Trucking, an interstate transportation company or for XYZ Railroad, or for Bob's Airline. But, the question in Bissonnette is not about a transportation company, per se. It is about a bakery that produces carbohydrate products for our consumption and enjoyment (bread, cakes, etc.). A dispute arose about the employment contract and the bakery successfully contended that their litigation should not proceed because of the arbitration clauses.

The Supreme Court reversed the lower court's (2nd Circuit) conclusion that the bakery is not "in the transportation industry." The facts establish that the workers in this instance in fact transport goods and that some of those goods originated in a different state (that is "interstate" commerce). The net effect of the ruling is seemingly innocuous, but the implications are far broader. The Court noted that it might be possible for a court to determine the "predominant source of commercial revenue." Might that help determine if a business is "in the transportation industry?"

Perhaps that is a relevant test. However, the Court noted that "such a test, however, would often turn on arcane riddles about the nature of a company’s services." There is some logic there. The Court seems concerned in that regard less about the law than about the convenience of deciding the outcome. Is convenience or simplicity the legal test or does it reach beyond the law? Intriguingly, the Court then makes some innuendo by posing questions:

• "Does a pizza delivery company derive its revenue mainly from pizza or delivery?"
• "Do companies like Amazon and Walmart—which both sell products of their own and transport products sold by third parties—derive their revenue mainly from retail or shipping?"

Seemingly ignored is the similar hypothetical inquiry into the volume of cellulose fibers a small rodent might carelessly displace at the moment in time when such displacement is apropos. Hint, the answer is "enough," which is both disappointing and uninformative, much like the hypotheticals in Bissonnette. While that can be addressed on a different day, it perhaps has as much relevance to the questions as the pizza example.  

Nonetheless, the Court saw in these questions the potential for delay and expense in interpreting contracts. It suggested that such questions might require "extensive discovery" into revenue and operations. It raised the spectre of "Mini-trials on the transportation-industry issue," and a resultant slowing of litigation. The possibility was suggested that "All this 'complexity and uncertainty' would “‘breed[ ] litigation from a statute that seeks to avoid it.’” In other words, such a determination would be hard, so let us instead legislate a simpler test. 

The Court, instead, essentially concluded that the "transportation" question is one centric to the worker, not the employer. The bottom line is that "a transportation worker need not work in the transportation industry." The test regarding application of this loophole in the FAA is not the nature of the employer's business, but the nature of the workers' labor. The Court specifically dodged other questions, reversing only on this point.

Thus, there remain issues on remand (for the lower court to consider in light of the Supreme Court analysis). Those include questions such as whether Bissonnette and Wojnarowski (Plaintiffs) are "transportation workers" and whether their work is in fact in "interstate commerce."

While those seem like factual challenges, the reader will remember that there is little, if any, "interstate" left in the commerce clause. A raft of decisions rendered since Wickard v. Fillburn, 317 US 111 (1942) have demonstrated not the least dignity or respect for the qualifying "interstate" language in the constitution.

The effect of Wickard and its progeny is that any commerce conducted by anyone who has ever seen, heard of, or dreamed about another state is "interstate commerce." While those decisions are short on logic and long on hyperbole, they are the law, and the reach of the federal government, affected by the Commerce Clause, is seemingly boundless despite the seemingly reservation language of the Tenth Amendment.

The Baby and the Bathwater

The Federal Government last week enacted a regulation to deny people the right to contract in the United States. The right to contract has long been recognized in America, and the loss of it may have significant implications for investment and competition in the market. There are a variety of potential implications and imports. While some are reasonably apparent, others may be less obvious.

The issue of non-compete agreements is not new. They have been around for many years and have been applied in a great many industries and occupations. I wrote a piece recently about a bill in the 2024 Florida Legislative session that focused on the effect on medical practices. The federal action likely impacts any such debates of contractual rights.

To be clear, no law has been passed and signed. An administrative agency has decided that people do not have the right to contract as they deem appropriate. This will renew discussion of the New Deal, the Lochner Era, and the Supreme Court. Lochner was referenced recently in CS/CS/HB 433. According to the folks at Cornell University

Freedom of contract is the ability of parties to bargain and create the terms of their agreement as they desire without outside interference from the government. It is the opposite of government regulation.

Make no mistake, there are a great many constraints on the freedom to contract. The Fair Labor Standards Act (FLSA) is a ready example. It constrains work hours, pay arrangements, and provides protections regarding minors. It is a federal law, enacted by your elected representatives, and signed by an elected President.

On April 23, 2024, the Federal Trade Commission issued a rule. This bans the use of non-compete agreements nationwide. The announcement boldly asserts that this is intended for "protecting the fundamental freedom of workers to change jobs, increasing innovation, and fostering new business formation." There are a variety of statistics in the FTC announcement, and bold conjectures about how this broad federal ban will increase wages, spur innovation, and create new businesses.

In effect, according to the FTC, most of the world's problems are related to the freedom to contract. By eliminating it, the FTC has likely saved the world from Armageddon. That is perhaps a bit pejorative and hyperbolic. The FTC reaction is seen as response to a perceived prolferation of non-compete agreements. One instance noted in 2016 involved hourly employees of a sandwich restaurant.

According to CNBC, the New York prosecuted the restaurant's "use of noncompete agreements with franchisees in New York." Essentially, the agreements reportedly "barred departing employees from taking jobs with competitors...for two years after leaving the company and from working within two miles of" the company's restaurants.

The New York attorney general characterized the constraints as "unconscionable.” He focused upon the wage rates and the vulnerability of such workers. The potential for "limit(ing) mobility:" and "bully(ing)" were both noted. The New York example concluded with an agreement in which the restaurant would stop using or enforcing those agreements.

The New York example has received a fair amount of news coverage, before and after the FTC conclusions last week.

The implication is reasonably clear. There are contractual arrangements that evidence (1) overreach, (2) adhesion, and (3) coercion. It is possible for a variety of clauses in any contract setting to be onerous to the point of unenforceability. It is notable that few such potentials rise to the call of being prophylactically forbidden. In this example, forbidden by administrative action rather than legislation.

Is there any viable reason for precluding a minimum-wage worker from competing with your business? Is there some secret process or recipe that the worker might indiscriminately share or duplicate? The answers here are likely axiomatic.

Is there any viable reason for precluding a CEO, CFO, CIO, or CAIO from competing with your business? How about an engineer or chimist involved in your revolutionary process or discovery? Are there any employees that possess critical and highly proprietary information regarding process, recipe, or similar?

One might notice that such noncompetes have been highly common in the sale of a business. This is not an employee/employer setting, but a buyer and seller setting. If your name has been associated with a particular industry, trade, or profession in a town that might have value. If your practices have been effective or even revered, that might have value. Above and beyond the value of the "sticks and bricks" of your business, might it be worth more because your name and reputation are associated with it?

If you built Gucci, Ford, or Disney is part of the company value your name? Is it different if it is "Bob Jones Chevrolet" at sixth and main? When the owner sells that business, might they seek a price that includes recognition of that name? Would you pay more to buy Ferrari because you get to trade on the name "Ferrari?" Will you pay more if Enzo is allowed to build a factory across the street and start making other cars there that are also named "Ferrari?"

Is the FTC action limited to the employee/employer? Is it troublesome to the broader context of non-competes? Is it an overreach of Administrative action, or a legal extension of the broad impact of federal law? Will if be viewed through the lens of Lochner, or will the perspective be different? There are, perhaps, a variety of questions that will remain to be answered in the wake of this new rule.

The FTC noted in its announcement that the "banning of noncompetes will lead to new business formation" and "higher earnings for workers," "lower health care costs," and increased innovation, The only assertion missing is that banning these agreements will likely mean an end to global warming, hunger, the common cold. Their cited conclusions are so compelling that no one could possibly make an argument in favor of such agreements.

Therefore, "existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date." That is, existing contracts will be unilaterally altered by the operation of the administrative agency. The "existing noncompetes for senior executives" are allowed to "remain in force," but "employers are banned from entering into or attempting to enforce any new noncompetes, even if they involve senior executives."

The experts in government have concluded that the loss of this contract freedom will not harm those who have utilized it. It provides brief explanation of how alternatives such as "Trade secret laws and non-disclosure agreements (NDAs)" will fully protect employer's "proprietary and other sensitive information." It notes that NDAs are so effective that "over 95% of workers with a noncompete already have an NDA." One might wonder, if they are so effective, why would anyone ever use both?

It is perhaps simple to see that there are many occupations and settings in which such contracts might be inappropriate, onerous, and unfair. That is true of many contracts and their terms. One might as well find it simple to see that there might nonetheless be various occupations and positions of trust that might well benefit from such agreements.

Regardless of how one might feel about the bathwater, there is perhaps room to consider the effect on the baby? Time will tell, but there is a reasonable chance that this regulation may see a courtroom or two before the final word. 

Conflicting Rights

There was an interesting story circulating recently regarding college students. They spoke their truth, stood their ground, and suffered results that upset and offended them. One can reach personal conclusions about whether the world is in a good place, which side of debates appeal, and whether or not to take actions. That is all within the confines of your personal discretion.

These students apparently attended Barnard College and chose to join "disruptive anti-Israel protests on Columbia University's campus." The New York Post reports that the officials at Barnard began sending "warnings (to students) that they risked being suspended if they did not leave the encampment" on the Columbia campus.

This is an important point, the students were provided a warning that consequences were coming. The President of Columbia University noted that she "authorized the (New York Police) to crack down," and reportedly "at least 108 protesters ended up cuffed and slapped with trespassing summonses" the next day. There was notice and there was an opportunity to take action (leave).

One of the students made the news, perhaps because of posts on social media. She complained that she was arrested, "suspended, and evicted from housing by Barnard" College. The story seems to stress that the student got out of the police system at 02:00 in the morning. That is not the best time of day to be on the streets.

The student complained that she was "forced to stand outside the Barnard gates for an entire hour waiting for someone to let me in." She was dismissive of the "Barnard Public Safety" officials characterizing their actions at 02:00 as "going above and beyond." She was afforded 15 minutes, during which she "haphazardly packed &...left." She felt that time was insufficient or perhaps "evil."

But, the student made choices. Her choice resulted in some school employee being awake and available at 02:00. She may not realize it, but most businesses do not have a full staff on duty at 02:00. Is it possible that more than one student needed the attention of that night-shift staff? She lamented she had only 15 minutes, but was that because the same staff needed to accommodate another suspended student who was likewise waiting at the gate for her or his turn?

The student is upset. Her rights to freedom of expression have been constrained. But, there are rules.

The school faculty is reportedly upset. Their committee has drafted a resolution of censure. The professors believe that there should not be constraints on protestors, rules, or detriment. One might wonder if they would feel the same if the protestors were ignored and someone was hurt. Would the faculty financially back the payment of damages to the injured? Would the faculty explain to an injured student or family members why it was wise to ignore published policies and accede to the protestors' unfettered and violative behavior?

No. It is unlikely. That does not suggest that they should not express their views. The faculty has the same freedom of expression as anyone else, whether expressed individually or in the comfort of some crowd.

The resolution of the faculty expresses some belief that it is the faculty that runs American education, and they view enforcement of published school policy as an attack on academic freedom. They collectively view enforcement of school policy as an "assault." 

“President Shafik’s violation of the fundamental requirements of academic freedom and shared governance, and her unprecedented assault on students’ rights, warrants unequivocal and emphatic condemnation,”

There are perhaps broader issues than enforcement of school policies and enforcement of laws.  

To be clear, freedom of expression is guaranteed in the Constitution. That is not questioned. But, the Court has long held that this right is not absolute. I am free to speak my mind, but not in your living room. That exact scenario recently played during a dinner at the private home of a law school dean at some school out in California. It turns out that even in California they "cannot condone using a social occasion at a person's private residence as a platform for protest."

In this same vein, the folks at Columbia University elected to enact "time, place, and manner" constraints on speech. In a study released in March, the school noted that "there also have been repeated violations of the rules on protests." The report concludes that there are three critical points about protests. The right to protest must be protected, but the protests must "not interfere with the rights of other(s)." And, finally, there is an interest in "combating discrimination and harassment." To meet the three, the school established a place on campus for protests, and it defined the hours during which protests could be held. 

The protest noted above exceeded what was allowed by the owners of private property (Columbia). The president of the school issued a warning to the protesters. They chose to ignore her. The president informed the students that suspension could occur. They chose to stay. The president apparently afforded them 24 hours to leave. They did not. They were arrested. They were inconvenienced. But not because anyone is evil, because they chose to stay.

There is a right to free speech in this country. According to some, the U.S. does not rank in the top cohort for protecting expression, finishing in 2024 behind such countries as Denmark, Switzerland, and Jamaica. But, the U.S. is reportedly number 3 in the world for "valuing free speech the most." You have every right to say what you want. I am doing so here. 

The tendency seems to be perspective-oriented. Those who protested and ignored saw "evil" and oppression in the schools' reaction(s). They feel mistreated and disrespected. They could have easily left the private property and demonstrated instead somewhere in a public forum. Is it the "what" of protesting or is the "where" the critical point? Is it the message, or the defiance?

Those who own the premises (Columbia) see a group violating policy, trespassing, and potentially creating a dangerous situation for themselves and others. They see an obligation to provide security for their premises and their guests. They likely fear the potential of someone being hurt, and suing them for not protecting them or following their own rules. 

Is there a right or wrong? Is there a good or bad?

The point is that the property is private and the owners have rights. The protesters are entitled to their right to express themselves. The two sacrosanct rights collide in this situation. See Rights Collide (February 2016). And as I write this John Cougar Mellencamp resonates through my brain. His lyrics encompass all three of the important lessons from this story.

He delivered Don't Misunderstand Me on Nothin' Matters and What if it Did (Riva 1980)?

"Everybody can do what they want, But they just can't do it here"

You may protest. You may "do what you want." However, that is not an absolute right. Your rights may abut someone else's. The Constitution protects both your right to expression and their right to private property. When they conflict, someone is going to lose. You cannot have your opinions on someone else's property. This is not an afront to your rights. It is a compromise recognizing both rights. 

Mellencamp included the Authority Song on his Uh-Huh album (Riva/Mercury 1983). This one had the line 

"I fight authority, authority always wins, Well, I fight authority, authority always wins"

And there you have it. In the end, authority always wins. When confronted by the police you will need to follow their instructions. Even if their instructions are insulting and inappropriate. That has happened, according to the British Broadcasting Corporation (BBC). Certainly, the instructions described in that story are distasteful and wrong. But, the target followed police instructions, was not arrested, and then took to social media. He was vindicated in the end. 

Thus, the police may sound irrational, illegal, or simply wrong. And, you get to explain their failings later, in court, to a judge. You can take to the court of public opinion later. But, in the moment, the police are the authority, and following their instructions will likely be the best and safest course. There are no absolutes, but disobey the police at your peril. In the moment, the police always have the upper hand. 

Finally, turning back to Don't Misunderstand Me, Mellandcamp concludes

"You say that I lack maturity, Stop actin' like a child."

When your actions or inactions result in consequences, remember that you chose them. When the property owner says leave, you leave. Right or wrong can be sorted later. When there are consequences for your actions, put that blame on you. The property owner here gave warning. A full day later, it took action. You were inconvenienced not by their action, but by yours. There is no gain in calling names ("evil"). "Stop actin' like a child." 

Sir Isaac Newton was a bit deeper philosopher than Cougar, well perhaps. He noted in his third law that "For every action, there is an equal and opposite reaction." That is a near absolute. Don't follow directions, suffer consequences. Take action (protest, ignore warning), expect a reaction. Sure, the reaction may never come. But that does not mean you can be surprised when it does. 

There is no reason not to have principles. Whether one agrees with a protestor or not is never the issue (unless they are promoting or exalting violence - "fighting words"). Principle is admirable, regardless of whether anyone agrees with you. Disagreement and opposition are no reason to abandon your course. Being arrested for standing up for your beliefs is not wrong or inappropriate. 

But do not mistake your absolute right to stand on principle with any freedom to not suffer consequences. Grown-ups know this. Young people will learn it through one path or another.