Federal Courts Protect Big Law Firms From Competition

justice-scale-761665_1The sad reality is that most victims of illegal employment discrimination have no realistic means of redress.

This is because our court system is absurdly antiquated and has not changed appreciably since it declared itself the place where the buck stops in Marbury v. Madison (1803).

Victims of employment discrimination who are poor or middle class often can’t find an attorney who will take their case because the cost is too high in light of the potential damages. And they can’t effectively represent themselves because federal and state courts have adopted obscure and unnecessary rules and procedures that seem to be designed to keep them out.

There is virtually no public acknowledgement of this problem because apparently it is too complicated or un-glamorous for mainstream media.

I would like to applaud the heroic efforts of an organization that is trying to change this sorry state of affairs – the National Association for the Advancement of Multijurisdictional Practice (NAAMJP) of Los Angeles, CA.  The NAAMJP  has filed lawsuits in several jurisdictions challenging parochial bar admissions rules.

NAAMJP wants to ensure that, once licensed, a lawyer in good standing can practice in any state.

Repealing anti-competitive and  anti-consumer bar admission rules would increase competition among legal service providers and lower costs for consumers. 

The real reason for requiring licensed lawyers to take another state’s bar exam is to discourage them from practicing in that state. In other words, the state bar association is misusing the law to prevent competition. The defenders of the status quo are large and powerful law firms in the state who lobby the legislature and contribute to political campaigns. They are abetted by federal district court judges who want to maintain complete control over their fiefdoms.

According to the NAAMJP, lawyers in the European Union and Canada do not face the kind of  geographical licensing restrictions that are imposed upon U.S.  lawyers (and consumers).

Nevada, for example, requires out-of-state lawyers to take the entire bar exam (a two-day test) as if they had just graduated from law school. This protects a handful of large and complacent Nevada law firms from competition (particularly from California) and enables the state court system to exact high fees for each case filed by an out-of-state attorney or firm. All of this drives up the cost and availability of legal services in Nevada. This is a form of institutionalized corruption that is completely indefensible and yet continues year after year.

Lawyers from around the country regularly contact me for advice about workplace bullying and age discrimination but I cannot represent clients in Nevada because I am licensed in Pennsylvania. Who benefits?  Attorneys in Nevada who know far less about this area of the law than I do.

For anyone who is interested,  The ABA Journal has a story this month about the challenges faced by the NAAMJP  in federal courts, which thus far have shown themselves to be intent upon maintaining the current anti-consumer practices.

The NAAMJP contends that barriers to admission erected by state bar associations violate, among other things, the First Amendment’s guarantee of freedom of association and speech.

Bad Ending for Authors in Google Lawsuit

The U.S. Court of Appeals for the Second Circuit issued a decision Friday that will further erode the ability of authors to make a living.

A three-judge panel of the appeals court affirmed a lower court ruling that permits libraries to send books that are under copyright protection to Google, which then digitalizes the books and returns a digital copy to the library. Google then places the digitalized book in its book search engine, where the public can search the text of the book and read displays of snippets of text free of charge.

Google’s library project makes possible “text mining” and “data mining.” This allows Google and others to ascertain public interest in particular topics and areas. Google hasn’t placed advertising on the site of books that are under copyright but presumably could do so in the future.

So far Google has digitalized an estimated 20 million books, including both copyrighted works and works in the public domain.

It’s a great deal for Google and the libraries.  They each get a free digitalized copy of a book tha tis supposedly copyright protected. And Google, which is worth $364.99 billion, becomes further entrenched as the dominant search engine on the Internet.  What do author’s get?

Authors get nothing.

[Read more…]

Workers Search for Fairness in Federal Courts

Interesting  article in The Nation about the U.S. Supreme Court under Chief Justice John G. Roberts Jr:

” … the Roberts Court has been consistently skeptical of the need for judicial redress for victims of state or corporate wrongs. It has imposed strict ‘pleading’ requirements that help corporate defendants get lawsuits dismissed before having to turn over potentially damning evidence to employees or customers, and it has barred classwide remedies even when they are the only meaningful way to hold businesses accountable.”

Author David Cole notes that many of the Court’s decisions were 5-to-4, reflecting the political bent of the justices, five of whom were appointed by Republican presidents and  four of whom were appointed by Democratic presidents. He notes the  one-vote conservative margin could shift in the years ahead, depending upon who is elected to the presidency and who is appointed to the Court.

A common theme of this blog is the inability of  workplace abuse and employment discrimination victims (especially age discrimination victims) to achieve even a modicum of justice in our federal court system, which is heavily tilted toward government and corporate employers.  In my weekly review of  federal appellate court decisions in employment law cases, it is rare to find a decision affirming the right of workers to be treated with respect and dignity.  It is commonplace to find  the case of an aggrieved worker dismissed on the basis of an obscure technicality or because of the legal equivalent of a whim. It is all the more distressing that federal courts seem to be out of touch,  imperiously unaccountable to average Americans (they even refuse to televise their proceedings), and oblivious to the need for innovation and change .

Not only is the U.S. Supreme Court  majority extremely conservative but so are the hundreds of judges with lifetime tenure who populate the federal bench – most of whom also were appointed by Republican presidents.

In my recent book, Betrayed: The Legalization of Age Discrimination in the Workplace, I decry various U.S. Supreme Court rulings that have eviscerated the Age Discrimination in Employment Act of 1967 (ADEA).  Among other things, I cite a 2009 Court decision that raised the level of proof required in ADEA cases high above that of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. I also note the nation’s highest court accords age discrimination its lowest standard of review – so a law that discriminates on the basis of age literally has to be irrational to offend the Court, which accords a much higher level of scrutiny to laws that discriminate on the basis of race and sex.

Is it really a radical notion to suggest that all Americans – even older workers – should be accorded equal justice under the law? US Supreme Court

Chipping Away at the Wage Gap Through Transparency

One reason women consistently get paid less for equal work is  that they don’t know how much their male counterparts are earning.

President Barack Obama’s Pay Transparency Executive Order promises to help chip away at the wage gap by eliminating barriers to transparency in worker pay.

The Office of Federal Contract Compliance Programs (OFCCP), a division of the U.S. Department of Labor (DOL) that investigates pay discrimination in the federal government, recently released a  proposed final rule to implement Obama’s executive order. The Rule was published in the Federal Register on September 11, 2015 and will take effect 120 days from publication – January 11, 2016.

The order, issued on April 8, 2014, prohibits federal contractors and subcontractors from discriminating against employees and job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants.

The pay transparency rule includes a hammer.

Contractors must submit  pay, race and gender data on their employees to the DOL each year. The DOL will use the compensation data to target contractors who appear to be engaging in pay discrimination against women and people of color.

The OFCCP contends the 118-page rule will contribute “to building an economy that works for everyone” and “make the contractor workforce more efficient.”

Employers are required to update their nondiscrimination policies to include language addressing pay transparency. This language must be incorporated into employee manuals or handbooks and disseminated to employees and job applicants.

Employers have two possible defenses to a pay discrimination charge: a general defense, which could be based on the enforcement of a “workplace rule” that does not prohibit the discussion of compensation information, and an “essential job functions” defense.

A third of all American women live in or near poverty – Center for American Progress

The pay gap has ramifications for all women but it  is especially critical for low-income and retired women.

A 2014 report by Maria Shriver and the Center for American Progress found that a third of all American women are living at or on ‘‘the brink of poverty.’’ This  equals to 42 million women – plus the 28 million children who depend on them.

The gap has devestating consequences for women in later life. The Social Security Administration’s formula for awarding retirement benefits is based upon lifetime earnings so the wage gap contributes to poverty in old age for millions of  women who have worked hard all of their lives.

What is the Wage Gap?

Comparing census data on average annual wages in 2013 reveals that women make 78 cents for every dollar that men make.

The DOL states that a  typical woman who works every year between ages 25 and 65 loses $420,000 over her working lifetime because of the earnings gap (based on median annual earnings for full-time year-round workers at age 25 and above in 2013).

The gap is wider for some women of color.  Census data shows  African-American women arre making 64 cents, Latina women making 56 cents, and Asian women making 86 cents per dollar earned by a non-Hispanic white man.

The wage gap is just one of many factors, that contribute to the gender pay disparity, including sex discrimination in hiring,  assignments, promotions and terminations.