Law

Hard Work Doesn't Pay for Home-Care Workers

Home-care workers aren't casual babysitters, and it's time to make sure they don't get paid like one.

(Flickr/Steve Rhodes)
Say you’ve got a booming industry, one that already employs 2 million workers in the U.S. and is poised to add 1.3 million additional jobs by 2020. Imagine that the jobs cannot be off-shored, that the work helps decrease federal deficits, and millions of Americans depend on the industry just to get through their daily lives. Now ask yourself: Should it be legal to pay the workforce of this thriving and essential industry less than the minimum wage? Currently, it’s perfectly licit. A loophole in the Fair Labor Standards Act of 1938 exempts home-care workers—employees who provide personal care to the elderly and disabled in their homes—from basic work protections like the minimum wage and overtime pay. The rationale, according to the National Employment Law Project (NELP), was that people providing “companionship services” to seniors and people with disabilities were like casual babysitters. But this exemption, NELP points out, was never meant to include the extensive housework...

The Roberts Court Joins the War On Women

Wikimedia Commons
When Daniel Coleman asked for sick leave from his job at the Appeals Court of Maryland, he was told he would be fired. The state's actions violated the Family and Medical Leave Act (FMLA), passed by Congress in 1993. Unfortunately, thanks to the Roberts Court, Coleman has a right without an appropriate remedy. A bare majority of the Supreme Court held Tuesday that while Coleman's statutory rights were violated, he cannot sue the state of Maryland for damages. Once again, the conservatives on the Supreme Court have prioritized "states' rights" over human rights. Sometimes, a bad policy outcome resulting from a Supreme Court decision is a compelling or at least clearly reasonable application of sound constitutional principles. Coleman v. Maryland Court of Appeals , however, is not such a case. In order to produce this unjust result, the Court had to rely on a double-header of bad legal arguments. First, it applied a "states' rights" doctrine with no basis in the text of the Constitution...

The History of Florida's "Stand Your Ground" Law

(Flickr/seweccentric)
Seventeen years ago, in Springfield, Oregon, a local mechanic went into a fast-food restaurant, walked up behind a man eating lunch, and shot him to death in the back of the head. A local grand jury refused to indict the shooter. There had been no altercation, no sign that the man shot was carrying a weapon. But the shooter believed that the victim had threatened his daughter. And the dead man was, in the words of the local district attorney, “a violent man, a drug dealer by trade.” Maybe the shooter should have left it to the police, the district attorney said, but the victim should also have “moderated his behavior.” I offer this tale as background to the shooting of Trayvon Martin in Sanford, Florida, and the ensuing debate about self-defense law. George Zimmerman, a neighborhood-watch volunteer, thought the black teenager was a suspicious presence in a gated neighborhood. Disregarding police instructions, Zimmerman pursued and confronted the young man minutes before killing him...

Throwaway People

(Flickr/Tim Pearce)
“You're making a 14-year-old throwaway person.” Justice Ruth Bader Ginsburg’s phrase fell into the Supreme Court chamber with an ominous clang, like the sound of metal doors slamming. Not surprisingly, Kent Holt, an assistant Arkansas attorney general, tried to mute the clang. Speaking of Evan Miller, who committed murder at 14 and is now challenging his sentence of life without parole, Holt said, “I'd respectfully disagree that he's a throwaway person.” “What hope does he have?” Justice Sonia Sotomayor asked. Well, Holt responded, he could ask for a commutation of his life-without-parole sentence. He cited a 1979 Arkansas case stating that 30 such requests had been granted in the five years before. This seemed like a slim hope when Bryan Stevenson, Jackson’s lawyer, rose to rebut Holt. Commutations had become rare in the last 30 years, he said: Since 2007, there has been only one. The gates of Dante’s Hell carried the inscription, “Abandon all hope, ye who enter.” For thousands of...

Walking While Black

AP File Photo
I’m sick to my stomach about the Trayvon Martin shooting that Jamelle Bouie mentioned here yesterday. Over the weekend, Charles Blow at The New York Times (once again, my favorite columnist) wrote : Trayvon had left the house he and his father were visiting to walk to the local 7-Eleven. On his way back, he caught the attention of George Zimmerman, a 28-year-old neighborhood watch captain, who was in a sport-utility vehicle. Zimmerman called the police because the boy looked “real suspicious,” according to a 911 call released late Friday. The operator told Zimmerman that officers were being dispatched and not to pursue the boy. Zimmerman apparently pursued him anyway, at some point getting out of his car and confronting the boy. Trayvon had a bag of Skittles and a can of iced tea. Zimmerman had a 9 millimeter handgun…. One other point: Trayvon is black. Zimmerman is not. Trayvon was buried on March 3. Zimmerman is still free and has not been arrested or charged with a crime…. As the...

George Zimmerman's Collaborators

Wikipedia
Particularly after Charles Blow devoted his column last week to the subject, the so-far unprosecuted shooting of Trayvon Martin has deservedly gotten a lot of attention. For good reason, much of this attention has focused on Florida's odious 2005 revisions to its law of self-defense. It was entirely predictable that changes to the law eliminating the duty to retreat and permitting the use of deadly force if an individual "reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony" would lead to situations such as the Martin shooting. That is, it was predictable that it would lead to a case in which someone would be getting off scot-free for shooting an unarmed teenager whose only crime appears to be "walking while being African-American in a white suburban neighborhood." Still, it is important to note that this is not quite a case where a bad statute has compelled a tragically...

Who Killed Tyler Clementi?

(AP Photo/John Munson)
(AP Photo/The Star-Ledger, John O'Boyle, Pool) Dharun Ravi waits for a judge to explain the law to a jury before jurors begin deliberating. Friday, Ravi was convicted of using a webcam to spy on his roommate, Tyler Clementi, having an intimate encounter with another man. Days later, Clementi committed suicide. In September 2010, Rutgers student Dharun Ravi used a webcam to spy on his roommate having sex with another man (he didn’t tape him or broadcast him; he just took a few quick peeps and tweeted about it, according to in-depth reporting by Ian Parker at The New Yorker ). Three days later,* that roommate, Tyler Clementi, jumped off a bridge to his death. On Friday, a New Jersey jury convicted Ravi of 15 charges, including invasion of privacy and bias intimidation. Some of the charges carry possible sentences of ten years in prison. Because Ravi was born in India and arrived in the United States at the age of two, he could also be deported to a country he scarcely knows. Like many...

Axelrod to Republicans: Let My People Vote

(Flickr/Talk Radio News Service)
Barack Obama's former right-hand man accused Republicans of passing laws to shut out Democrats from voting in the next presidential election. "There's no doubt that Republican legislatures and governors across this country have made an attempt to try to win the elections in 2012 and 2011 by passing laws that are restrictive, that are meant to discourage participation, particularly by key constituencies that have voted Democratic in the past," said David Axelrod, former White House official and current senior advisor to the Obama campaign. The comments were made in an online Q&A following the premiere of "The Road We Traveled," a 17-minute film directed by David Guggenheim and produced by the Obama campaign. Questions were submitted over Twitter, and the topics ranged from how the president will handle Iran to whether Axelrod ever got in arguments with fellow senior advisor David Plouffe. The final question posed to Axelrod was about the string of laws Republican state legislatures...

Celebrating the Defeated

(Flickr/FadderUri)
Three former Iowa Supreme Court justices might not have received much love from their constituents, but they're about to be granted a national accolade. Chief Justice Marsha Ternus and Associate Justices David Baker and Michael Streit were voted off the bench in 2010 after conservative activists organized against their retention election, a typically routine procedure that became political overnight. Conservatives—led by failed gubernatorial candidate and evangelical leader Bob Vander Plaats—were outraged when the state Supreme Court legalized same-sex marriage in 2009. The state's constitution is difficult to amend, so they decide to voice their displeasure by removing those three justices with funds provided by major social conservative organizations such as the American Family Association and the National Organization For Marriage. Liberals were caught off guard—unprepared to run a defensive campaign—and the three justices chose to sit out the election under the belief that it...

The ACA v. the Supreme Court

(Flickr/Mark Fischer)
This is the first of a series of posts looking at the arguments in the upcoming health-care case. Judges, whatever they like to pretend, rarely decide cases on logical application of argument and case law. They do think about those things, but usually only after they’ve made up their minds—and they tend to make up their minds based on unformed emotional reactions to the questions raised by a case. So it’s worth asking about the emotional subtext in the minimum coverage (or “individual mandate”) aspect of the Affordable Care Act case, which will be argued in late March. This is the one issue that has stirred public fear— Cheese it, it’s the Broccoli cops! —and Justices are members of the public. The two party briefs by foes of the ACA play heavily on that fear. Be afraid, they warn. Be very afraid. A corrupt, power-hungry Congress wants control of your evening cocktail, your dinner plate, and the car you drive. The government’s tone is calmer. Nothing to see here, the government’s...

Voter-ID Laws Face Major Roadblocks

(Flickr/ezola)
Texas Republicans have been trying for years to pass a law that would require state voters to show identification before hitting the polls—and state Democrats have been equally determined to stop such a measure. The Rs came close in 2009, but the House Democrats, only two seats away from a majority, blew up the legislative session rather than see the measure pass. By 2011, however, fresh from Tea Party victories, the GOP had overwhelming majorities in both Houses. The bill was almost undoubtedly going to pass, and rather than go for a more moderate version of voter ID with non-photo options, the conservatives went for the gold, introducing one of the most stringent versions of a voter-ID requirement. The only option left for the Democrats was to set up the grounds for the legal battles sure to come . Monday, it looked like those efforts paid off. The Department of Justice has blocked the law, meaning that while the measure goes to the United States District Court for the District of...

The Emerging Sotomayor-Muppet Axis of Evil

Can’t you take a joke? In the time and place where I grew up, as I have written before , Federal judges were figures of awe. They were men (all men) of rather severe probity, following unpopular mandates from the Supreme Court even when those decisions cost them friends and put their lives in danger. I never recall a public complaint from any of the judges in the Southern state where I grew up, and certainly never outright ridicule of the President and the Congress—at least where others might overhear. Many of these judges held legal and social views I found profoundly wrong. But they were careful to protect the prestige and integrity of the courts they served, and to avoid giving the impression that they were just ordinary players in the poisonous politics of segregation. No matter their private misgivings, they publicly served the law and upheld the Constitution. In no small part I owe my choice of profession to the memory of their service. Here is the federal bench 2012, after a...

Copyright Fight Hits the Lab

The Research Works Act keeps the battle started by SOPA and PIPA in the headlines.

(AP Photo/ailatan)
This week, the scientific publishing giant Elsevier , which produces thousands of academic journals, and Representatives Carolyn Maloney, a New York Democrat, and Darrell Issa, a California Republican, withdrew their support for the Research Works Act after public outcry from public-access advocates. Currently, some federal agencies require that researchers who rely on government funding make their resulting journal publications freely accessible online. The Research Works Act would have forbidden any agency from imposing this requirement, allowing publishers to retain rights to the papers. As with the recent battles over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), opposition and the sudden drop-off in support for the legislation suggests that big content companies are losing some of the traction in Washington they once enjoyed. But the Research Works Act was always largely symbolic. “It’s a stake in the ground,” said Allan Adler of the American Association of...

The Decline of Guns

(Flickr/CyJen)
A while back I started a four-part series for Think Progress on the National Rifle Association and the state of the gun debate in America, which finishes up today. In the first three installments (here's Part 1 , Part 2 , and Part 3 ), I detailed how the NRA's electoral power is largely a myth. Contrary to popular belief, their money doesn't get candidates elected, their endorsements almost never matter, and the stories they tell about their history—that they won the House for Republicans in 1994 and the White House for George W. Bush in 2000—are almost certainly false. In today's final installment , I discuss gun ownership and public opinion, and there are some facts that may be surprising. The one that grabbed me was this: gun ownership has been falling for years, and shows no signs of abating. Here's a chart I made using General Social Survey data: This decline is occurring among all age groups, and across all birth cohorts. Furthermore, the people who are most likely to own guns...

Blunt Amendment Fails in the Senate

(Flickr/Stacy Lynn Baum)
For a brief moment yesterday it looked as though some GOP senators were ready to step back from the ledge, and reject their party's assault on women's rights. A handful of Republican senators were hesitant to endorse the controversial Blunt amendment, which would allow any employer—both secular and religious—to reject covering individual aspects of health insurance they find morally questionable, not just contraception. Even Mitt Romney expressed opposition to the bill when an Ohio reporter explained the implications before his campaign quickly realized they had defied party doctrine, and issued a clarification, which reversed Romney's earlier statement. Any qualms with the legislation evaporated when it was put to a vote this morning. The measure failed 51-48, but Republicans voted with their usual lockstep discipline. Soon retiring Senator Olympia Snowe was the lone Republican opposing the measure and three Democrats—Ben Nelson, Joe Manchin, and Bob Casey—crossed the aisles to join...

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