As A Movement Grows To Make Those With Criminal Records
A Protected Class, Let’s Consider The Abuses Employers Already Face
By: Bill Pilchak – 6/10/14
In business, we encounter a steady stream of jargon reflecting the latest trends: “synergy,” “24/7,” “value-added,” “aligned.” One vintage business term has been on my mind lately, as a movement gathers to protect those with criminal records: “Empowerment.”
Empowerment is an ephemeral concept. Most of us learned its definition by its usage. But what is it? It’s a word in search of an illustrative example.
And I have one.
For the best of motives, we passed civil rights statutes that protect employees on the basis of race, color, sex, religion, national origin, age, disability, marital status, whistleblower status and, in Michigan, on the basis of height and weight. Then, the FMLA gave job security to anyone who went to the doctor and got a prescription.
Without question, the statutes have some benefit. HR departments now assure discharges are not motivated by discrimination. Those needing medical leave, get it.
However, the statutes “empower” the 85% of workers with protected status to financially strike back at their former employers when terminated. Their weapons are costly: a Charge of Discrimination or/and a claim filed in court. Even if the allegations have no merit whatsoever, an employer will spend several thousand dollars defending a Charge or between $50,000-$100,000 to have a court case dismissed. The ability to force one’s adversary to incur that kind of expense is true “power.”
So, who have we empowered? Statistically, fired employees are more likely to have violated rules, shirked duties, skipped work, wasted time, or stolen time, property or the employer’s confidential data or have conflicts with authority figures, because those are common reasons for termination. Employers don’t run off employees who make valuable contributions and follow the rules. Some of these common reasons for discharge belie character issues. Would those characters be inclined to raise false claims?
You bet. Nearly 100,000 Charges of Discrimination are filed per year at the EEOC, with another 50,000 Charges being filed with equivalent state agencies. As noted in a recent BLawg post, over the past ten years, the EEOC found “reasonable cause” to believe that discrimination occurred in only 4.8% of those Charges. 10.2% of Charges are settled by employers, some guilty but some looking to minimize costs. Remarkably then, the EEOC has a “guilty until proven innocent” approach, where innocent employers are commanded to explain themselves, given deadlines and required to disgorge sensitive information that will later be provided to the employee upon request, while the EEOC holds the terminated employee’s information close to the vest.
Imagine if other agencies operated like the EEOC. If the county prosecutor’s docket was made up of 90% innocent people, there would be outrage. If the health department falsely investigated 90% of local restaurants as unsanitary, the press would demand an explanation.
One would think that an agency with a history of overwhelmingly meritless complaints would at least adopt a mechanism to dissuade them or expedite their dismissal to avoid the waste of resources and resulting loss of national competitiveness. After all, if 135,000 innocent employers only spend $2000 each to defend themselves, $270 Million is needlessly gushing out of businesses every year. That’s a lot of chaff for very little wheat. However, that volume of spurious Charges justifies a $360 Million (2012) budget for the EEOC. Why would they do anything to dissuade false Charges?
Not only is there no mechanism to dissuade or dismiss meritless charges, but the EEOC has been known to press cases that investigators have acknowledged as frivolous.
In one Charge defended by the author, a probationary employee in her first 90 days on the job was working in a customer’s plant and had been caught driving an electrical industrial vehicle without the required safety training. Just hours after being forbidden from driving the vehicles, she was seen driving again, but sped away before her supervisor could catch her. Moments later, she ran a stop sign, nearly hit a customer representative and proceeded to exchange heated words with the customer. After the customer banned her from the facility and took her security badge, she snuck back into the plant in violation of the customer’s security procedures. When, after all that, she was fired, she was replaced by someone of the same race and sex. Amazingly, instead of these facts resulting in a quick dismissal, the investigator pressed for compensation for the Charging Party while admitting there was no case of discrimination, stating the Charging Party would likely not find work again.
Other aspects of EEOC practice help give life to false claims. In the 4.8% of cases where the EEOC finds “cause” to believe discrimination has occurred, that finding is admissible into evidence against the employer, and the EEOC uses language that impresses the prospect of discrimination upon any jury later hearing the case. The employer gets no equivalent benefit, even if the evidence is overwhelming that no discrimination occurred. The EEOC’s language in that instance will generally be: “The EEOC is unable to conclude that the information obtained establishes violation of the statutes. This does not certify that the respondent is in compliance with the statutes.”
Even worse, many of the false Charges go on to become expensive, frivolous lawsuits. Nothing prohibits an employee from filing a lawsuit, even if the EEOC found no evidence that discrimination occurred. Once upon a time, employers could count on market forces to protect them against frivolous lawsuits. Lawyers would not invest their time in a bad case, because it took away from more profitable endeavors. However, the system is overloaded with attorneys. 45% of new grads cannot find jobs in the profession and State Bar of Michigan statistics consistently show that 25% of its 34,000 practitioners (i.e.8500) make $45,000 or less annually. There are so many attorneys with time on their hands, that they take cases today that no lawyer would have accepted in the past, hoping that an employer will settle to avoid the $50,000-$100,000 in inevitable attorney fees.
In case you haven’t noticed it, there is a movement underway to make those with criminal convictions a protected class. Many states already have statutes limiting an employer’s ability to consider convictions. Pennsylvania precludes employers from considering even felony convictions, unless the crime has some relevance to the felon’s ability to perform the job. Repeat sex offenders can and have used the statute to insist on their right to enter a workplace, raising interesting Constitutional issues in the nature of Freedom of Association. In 2012 the EEOC republished Guidance regarding the use of criminal convictions in hiring decisions, and there is now a nationwide “ban the box” effort underway to preclude employers from even asking about convictions until resources have been expended in the application process. Ten states have already passed laws.
Empowering convicted criminals to sue employers would be a terrible move. The ban the box statute proposed in Michigan in 2013 was limited to prohibiting applications from including a question about convictions. The statute would waste precious resources by requiring employers to expend time, effort and possibly money on candidates that would have been excluded earlier in the process. However, thankfully, it doesn’t allow for much opportunity to fabricate claims: either the application asks the forbidden question or it doesn’t. Nevertheless, the subtle campaign to label convicted criminals as a protected class and the expansion of rights for convicted criminals, would empower people that cannot be trusted with the power.
 The figure is drawn from Bureau of Labor Statistics data on the make-up of the workforce: 45.4% of females, 20.2% minorities and approximately 53.5% of “over-40” employees in the workforce. (100% – 45.4 – 20.2= 34.4% white males x .465= 15.996% white males under 40.) It’s reasonable to assume 1% of those younger white males can claim protected status on the basis of religion, disability, marital status, or non-tracked national origin (Eastern-European, Canadian, etc.).
 Moreover, for some of those years, the EEOC was in the habit of scouring employment applications and employee handbooks and finding “cause” regarding matters that had nothing to do with the issue set forth in the Charge. Without speculating on motive, that practice artificially inflated the figures.
By: Bill Pilchak – 05/01/14
Bob Talbert, a Free Press columnist until the 1990’s, often wrote about “things learned en-route to looking up other things.” Attorneys, too, come across interesting information. Recently, I stumbled upon a Washington Post Blog by Thomas Heath about David Bonior, “the former Michigan Democratic congressman, liberal pit bull…and labor-union BFF.”
Heath reports that Bonior has recently undergone an epiphany. His change of heart occurred after he opened two restaurants in Washington D.C. Now 68 years old, Bonior is quoted as saying, “Small-business people work very hard.” This apparently comes as a surprise to Bonior, who spent most of his life in “in governmental service” or “at the public trough” (pick your own end to that sentence). He contrasted his new-found private sector perspective to what he found in government: “If you are a small-business guy, you are out there and not as protected as a government employee. They [business owners] struggle every day. [On] a snow day, a government worker is off. A restaurant person takes a hit from that snow day,” because of the loss of business. The fact that a former Congressman considers that observation sufficiently astute to say it out loud to a reporter should be alarming. Many on the left –dictating how businesses must be run – have absolutely no idea what it takes to run a business.
Now that he is on the other side of the fence, Bonior said if he had the power, he would lighten up on regulations. Heath quotes him as saying: “It took us a ridiculous amount of time to get our permits. I understand regulations and. . . the necessity for it. But we lost six months of business because of that. It’s very frustrating.” One wonders what Bonior would think if he were in an industry more highly regulated than the hospitality trade.
“The biggest surprise is how you have to hustle,” Bonior said to Heath in another shocking disclosure of his naiveté. “It was an eye-opener. I always heard this when I was in Congress. ‘You should try and own a business someday, Bonior.’” So now that he does own a business, he finds, “It’s tough to make it, in terms of profit margins. But somehow you get by and you figure it out.”
The co-author of the Bonior-Kennedy bill which sought to increase the minimum wage in 2000, pays his non-union employees “the tip wage,” $2.36 an hour. Oddly, the person who tried to force others to pay their employees more, chooses to pay his personnel the absolute minimum. It’s understandable, because restaurants, like retail and other industries, operate on a razor thin margin. But Bonior’s about-face is not merely hypocrisy, but reflects the realities of running a business in 2014. Bonior’s comments should be hand-delivered to every one of his former colleagues who are trying to raise wages in 2014. The pie has been sliced too thinly already. They should be told that even a left-wing warrior who spent a career trying to increase wages cannot do so “in real life” without ruining the venture into which he has poured his savings.
To be fair on the hypocrisy point, Bonior reports that his employees get paid vacations of at least two weeks a year. Heath’s blog article did not report if that vacation pay is paid at $2.36 per hour, or whether Bonior somehow provides the missing “tip income” to them while on vacation. The article does note that “most employees who were on the restaurants’ health plans have signed up for coverage via the Affordable Care Act,” but does not indicate whether Bonior required a steep co-pay or whether Bonior will eliminate the company plan now that his employees are on Obamacare. Tellingly, however, Bonior’s restaurants do not have retirement plans, though a 401-k plan is easily provided to employees at little cost to an employer.
As the title of this article suggests, Bonior is not the first liberal Dem to wake up and smell the coffee. Senator and 1972 Presidential candidate, George McGovern, similarly came to his senses late in life. He authored two widely disseminated articles repudiating his earlier liberal views. The first was an Op-Ed in The Wall Street Journal in 1992, titled “A Politician’s Dream Is a Businessman’s Nightmare.” Here are some excerpts from that article:
In 1988, I invested most of the earnings from th[e] lecture circuit acquiring the leasehold on Connecticut’s Stratford Inn… The Stratford Inn promised the realization of a longtime dream to own a combination hotel, restaurant and public conference facility — complete with an experienced manager and staff. In retrospect, I wish I had known more about the hazards and difficulties of such a business, especially during a recession of the kind that hit New England [in 1988] just as I was acquiring the inn’s 43-year leasehold. I also wish that during the years I was in public office, I had had this firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. senator and a more understanding presidential contender. (emphasis added.)
McGovern’s OpEd then speaks of regulations that may have appeared to make sense to the politicians passing them, but which were actually creating a huge headache for businesses:
In short, “one-size-fits-all” rules for business ignore the reality of the marketplace. And setting thresholds for regulatory guidelines at artificial levels — e.g., 50 employees or more, $500,000 in sales — takes no account of other realities, such as profit margins, labor intensive vs. capital intensive businesses, and local market economics. The problem we face as legislators is: Where do we set the bar so that it is not too high to clear? I don’t have the answer. I do know that we need to start raising these questions more often.
Fran Tarkenton, the former NFL quarterback and founder and CEO of OneMoreCustomer.com, a resource for Small Business Advocacy, wrote about McGovern at the time of his passing in 2012. Tarkenton reported that McGovern’s business went bankrupt within two years and closed by 1991. He quotes McGovern as saying, “The concept that most often eludes legislators is: ‘Can we make consumers pay the higher prices for the increased operating costs that accompany public regulations and government reporting requirements with reams of red tape.’” McGovern eventually concluded what anyone in business knows: “consumers do have a choice when faced with higher prices. . . Every such decision eventually results in job losses for someone.”
Certainly, Michiganians can attest to that. We all watched the foreign automakers land on our shores, but avoid Michigan with its gold-plated sue-the-employer statutes and union mindset, and set up shop in states where they could avoid litigation expenses and silly union work rules. Somewhat surprisingly, McGovern’s second published revelation speaks precisely to the union context. On May 22, 2006, McGovern’s letter to the editor appeared in many newspapers across the country, prominently referring to Michigan-based Delphi Corporation and the auto industry two years before Chrysler and GM were driven to bankruptcy. Here are some excerpts:
THE END OF `MORE’
I have never wavered in my support for policies that relieve poverty and improve the standard of living of American workers. As a lifelong liberal, I supported Medicare and Medicaid, civil rights, Social Security and workplace safety requirements…And I have always been a supporter of the labor movement. Unions have a proud legacy of improving the lives of millions of workers over the last century…
But lately I have seen developments that have me worried…
Delphi Corp., the biggest auto parts supplier in the country and the employer of 34,000 hourly workers, is bankrupt. One big reason is that the company’s unionized workers earn $64 an hour in wages and benefits — more than twice what some of its competitors pay…
General Motors and Ford — the companies that have epitomized high-paying unionized jobs over the last several decades — have stated that they will lay off 30,000 workers each…Wall Street thinks these are just the first steps.
“More” has, unfortunately, become “too much” in a global and far more competitive economy.
Many of my friends will consider this view heretical. But it is based on stark reality. Not unlike members of Congress, union leaders are in the business of asking for more. That’s what their mentors and predecessors and heroes did. It’s very difficult to turn around and say that “more” is not always possible.
It can be galling to hear companies argue that they have to cut wages and benefits for hourly workers — even as they reward top executives with millions of dollars in stock options. The chief executive of Wal-Mart earns $27 million a year, while the company’s average worker takes home only about $10 an hour. But let’s assume that the chief executive got 27 cents instead of $27 million, and that Wal-Mart distributed the savings to its hourly workers. They would each receive a bonus of less than $20. It’s not executive pay that has created this new world.
I understand the attraction of asking business — the perceived “deep pockets” — to shoulder more of the responsibility for social welfare. But there are plenty of businesses that don’t have deep pockets. And many large corporations operate with razor-thin profit margins as competitors, both foreign and domestic, strive to attract consumers by offering lower prices.
A popular 2013 book based on an old Dutch proverb uses the term “Too Late Smart.” The epiphanies experienced by Bonior and McGovern should be required reading for those on the left who have no responsibility for America’s industrial and commercial enterprises. America, and especially Michigan, do not have time for Too Late Smart.
By: Bill Pilchak – 3/20/14
Perhaps because I was a ten-year-old Catholic kid being educated in a Catholic elementary school when the first and only Catholic President was gunned down in Dallas, I have always been fascinated by the facts and theories surrounding John F. Kennedy’s assassination. One point made clear in numerous books and documentaries is that the Secret Service and Kennedy’s staff were concerned about his safety while travelling in conservative Texas. Governor Walter Connelly’s wife’s widely reported remark, (incidentally cited by Wikipedia as one of the prime examples of irony), “Mr. President, you can’t say Dallas doesn’t love you,” was meant to assuage those concerns.
Thus, historically, we see that there was a liberal-conservative dichotomy 50 years ago, which may have eclipsed the current divide. Indeed, though the current view is that there was less open vitriol in those days, responsible people actually believed that a sitting President might not be safe travelling through a conservative state like Texas.
I was prompted to think about Kennedy a few days ago, at the fundraiser for Oakdale Academy, a Hillsdale Academy School. While the featured speaker, Michelle Malkin, captivated the audience – after all she is extremely bright, a polished speaker, and decidedly easy on the eyes- the speaker that caught my attention was a student of the Academy. Three students recited from memory, lengthy passages from scripture, speeches or literature at the event, just as students do every day during the morning announcements at Oakdale. This year, one student recited Kennedy’s remarks to American Heritage magazine on the importance of teaching history. (http://188.8.131.52/content/jfk-our-nation%E2%80%99s-memory) Since many contemporary conservatives are lamenting the fact that history and politics are being dropped from high school curriculums, resulting in a less astute citizenry, Kennedy’s words could easily have been written by Bill O’Reilly.
The evening prompted me to review Kennedy’s writings and speeches to gain further historical perspective. Doing so has illustrated how far to the left of Kennedy the current administration and climate is. I daresay that, today, any conservative would kiss a “liberal” opponent on both cheeks if the opponent espoused Kennedy’s views. I visited the website of the Kennedy Library for some examples, and offer some thoughts of my own on his quotes:
THE WELFARE STATE
“Ask not what your country can do for you. Ask what you can do for your country. “Inaugural Address (1),” January 20, 1961, Public Papers of the Presidents: John F. Kennedy, 1961 At a time when many are concerned that never-ending unemployment benefits, food stamps, welfare, Obama-care, etc., are expanding the percentage of Americans who will never work, pay taxes, and elevate the next generation, Kennedy tells us that we are on the wrong path.
THE ECONOMY AND DAMPENING EFFECT OF TAXATION ON JOBS
“A rising tide lifts all boats.” –“Remarks in Pueblo, Colorado,” August 17, 1962, Public Papers of the Presidents: John F. Kennedy, 1962. Kennedy’s perspective is literally the motto of conservatives today.
“It is increasingly clear that no matter what party is in power, so long as our national security needs keep rising, an economy hampered by restrictive tax rates will never produce enough jobs or enough profits.”
“If the economy of today were operating close to capacity levels with little unemployment, or if a sudden change in our military requirements should cause a scramble for men and resources, then I would oppose tax reductions as irresponsible and inflationary; and I would not hesitate to recommend a tax increase if that were necessary.” –“Address and Question and Answer Period at the Economic Club of New York (549),” December 14, 1962, Public Papers of the Presidents: John F. Kennedy, 1962. Consider the following from the Kennedy Library website:
“Kennedy had campaigned on the slogan of “getting America moving again” (which the Nixon campaign staff had privately derided as the peristalsis plan). But, recovery from the 1958 recession had been very sluggish and unemployment remained perilously high—6.8% just after he took office. The Council of Economic Advisers urged him to attack unemployment with New Deal style spending but the president was worried that a large deficit ($7 billion) would be politically untenable in 1964. Unemployment did fall modestly, but it remained stagnant at nearly 6% well into 1963.
The president finally decided that only a bold domestic program, including tax cuts, would restore his political momentum. Declaring that the absence of recession is not tantamount to economic growth, the president proposed in 1963 to cut income taxes from a range of 20-91% to 14-65% He also proposed a cut in the corporate tax rate from 52% to 47%. Ironically, economic growth expanded in 1963…
The battle over the tax cut and the deficit continued unabated through 1963. The House Ways and Means Committee voted a tax bill out of committee in August and the grateful president reiterated that lowering taxes was the surest path to full employment and lower deficits. Polls showed that over 60% of Americans favored the tax cuts.”
ATTACK ON THE 1%-ERS
“Theodore Roosevelt once said, ‘The credit belongs to the man who is actually in the arena – whose face is marred by dust and sweat and blood…who knows the great enthusiasms, the great devotions – and spends himself in a worthy cause – who at best if he wins knows the thrills of high achievement – and if he fails at least fails while daring greatly – so that his place shall never be with those cold and timid souls who know neither victory or defeat.'”
“We have become more and more not a nation of athletes but a nation of spectators.”
–“Remarks at National Football Foundation and Hall of Fame Banquet (496),” December 5, 1961, Public Papers of the Presidents: John F. Kennedy, 1961. (References Theodore Roosevelt’s speech, “Citizenship in a Republic” given at The Sorbonne, Paris, April 23, 1910.) Kennedy came from a family of achievers whose achievements resulted in great wealth. He would be shocked by the notion today that society should pull down those who are achieving and excelling or President Obama’s statement: “you didn’t build that.”
STRONG NATIONAL DEFENSE
“Now let me make it clear that I believe there can only be one defense policy for the United States and that is summed up in the word ‘first.‘ I do not mean first, but. I do not mean first, when. I do not mean first, if. I mean first –period.” — Speech to the Veterans of Foreign Wars Convention, Detroit, Michigan, 26 August 1960, “VFW Convention, Detroit, Michigan, 26 August 1960”
“I think we’re going to have to do better. Mr. Nixon talks about our being the strongest country in the world. I think we are today, but we were far stronger relative to the Communists 5 years ago. And what is of great concern is that the balance of power is in danger of moving with them. They made a breakthrough in missiles and by 1961, ‘2, and ‘3, they will be outnumbering us in missiles.” –Transcript of fourth debate, ABC studios, New York, New York, 21 October 1960, “Television Transcript: Fourth Debate, October 21, 1960” Wow! Kennedy out-hawked Nixon? Consider Kennedy’s strong national defense posture and how it contrasts with the current administration, whose foreign policy appears to depend on whether Vladmir Putin knows the words to Kumbaya.
“Let us never negotiate out of fear. But let us never fear to negotiate.” “Inaugural Address (1),” January 20, 1961, Public Papers of the Presidents: John F. Kennedy, 1961.
THE IMPORTANCE OF GOD TO OUR COUNTRY
“This country cannot afford to be materially rich and spiritually poor.” –“Annual Message to the Congress on the State of the Union (12),” January 14, 1963, Public Papers of the Presidents: John F. Kennedy, 1963. I have only included this one quote, but despite the dalliances we know about today, Kennedy’s remarks are replete with frequent references to the Almighty. Undoubtedly, he had faith in a forgiving God.
THE SECOND AMENDMENT
“Today we need a nation of minute men; citizens who are not only prepared to take up arms, but citizens who regard the preservation of freedom as a basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.” –“Message to Those Participating in Roosevelt Day Commemoration, 29 January 1961. Sorry to be the bearer of bad news, but your freedoms are evaporating day by day. What is Kennedy recommending we do?
No country can possibly move ahead, no free society can possibly be sustained, unless it has an educated citizenry whose qualities of mind and heart permit it to take part in the complicated and increasingly sophisticated decisions that pour not only upon the President and upon the Congress, but upon all the citizens who exercise the ultimate power… Commencement Address at San Diego State College (226),” June 6, 1963, Public Papers of the Presidents: John F. Kennedy, 1963.
What we seek to advance, what we seek to develop in all of our colleges and universities, are educated men and women who can bear the burdens of responsible citizenship, who can make judgments about life as it is, and as it must be, and encourage the people to make those decisions which can bring not only prosperity and security, but happiness to the people of the United Sates and those who depend upon it.” –“Address at the University of North Dakota (379),” September 25, 1963, Public Papers of the Presidents: John F. Kennedy, 1963 This is why Conservatives are so passionate about America’s lagging educational system, which is the product of union-driven mediocrity. Look what happens when the electorate is distracted by their devices and popular culture: We twice elect the least competent President in the history of the U.S.