Tag Archive for 'Laws'

13 Charged in Deadly Hazing Incident

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Most of us have heard of hazing. Some see it as an essential element of being admitted into a new social group, which could be anything from a college fraternity to a bridge club.

Some might claim that hazing – any type of ritual that involves putting a new initiate to a social group through some type of physical and/or psychological ordeal – is deeply ingrained into human psychology, and that we often engage in it at a subconscious level, without even being aware of it.

Indeed, most of the time, rituals or behaviors that could reasonably be classified as “hazing” are pretty harmless.

However, there are cases where hazing rituals, particularly when alcohol and testosterone are involved, can go way beyond simple pranks, and can become dangerous or even deadly. In one tragic case, a drum major in a marching band at a Florida university died during a hazing gone awry. 13 of his former band-mates are now being charged in his death, with crimes including both felony and misdemeanor hazing.

The exact details of the victim’s death are not entirely clear. It’s known that he collapsed on a bus while returning from a football game in Orlando, and that the coroner ruled his death a homicide. He died of internal bleeding caused by blunt-force trauma. The coroner also found that he had suffered multiple severe blows. From what it sounds like, he was essentially beaten to death.

Whatever the exact details of the incident might be, it’s clear that something went very, very wrong.

Hopefully, as more information leading up to the trial comes to light, we’ll learn more about exactly what happened.

Over the last decade or so, a few high-profile incidents of hazing involving high school and college students have brought the issue to national attention, and led to many states passing laws specifically targeting the practice.

While the general criminal law of almost every state would cover the conduct that can occur in the most extreme hazing incidents (including torture, battery, and sexual assault), anti-hazing laws are more targeted, and are designed to eliminate all violent hazing, and preventing instances where the conduct in a hazing ritual was clearly deplorable, but did not quite rise to the level of criminal conduct under a state’s existing criminal laws.

Additionally, these laws send a message that hazing of any type, even “harmless” hazing, is not something that society should tolerate anymore. After all, many hazing incidents that ended in death or serious injury probably did not start out with that as the intended result. But when you get a bunch of (usually) young men together, and mix in alcohol, machismo, and an atmosphere that at least tacitly encourages the group to violently gang up on an individual, you’ve got a recipe for disaster.

This type of conduct goes far beyond “boys being boys.” Some might say that hazing is simply part of human nature, and that attempting to suppress it is pointless. It may be true that conduct such as hazing is a manifestation of the darkest, basest aspects of human nature, but part of it nonetheless. But the same can be said for crimes like rape and murder, and nobody will seriously argue that the law shouldn’t try to curb such behavior.

After all, one of the main reasons for the existence of a legal system is to elevate society above the baser impulses of its individual members. Laws against hazing, I think, are an example of one of the positive steps we can take to that end.

Obviously, these laws need to be sensible, and should probably only apply when a hazing incident actually results in somebody being harmed. I’m not advocating a “zero-tolerance” policy, in the traditional sense of the term. After all, we’ve all heard stories where laws that are intended to “get tough” on a given problem, whether it’s illegal drugs, weapons in schools, sex crime, etc. have been stretched to absurd lengths, sometimes ruining the lives of people that the laws could not possibly have been intended to affect.

I don’t want to see a situation where people are going to jail for drawing things on the face of a passed-out fraternity pledge, for example. But, if anti-hazing laws make it a little bit easier to prosecute the people involved in incidents that result in death or serious injury, I think they’re a good idea, on balance.

States that have not done so already should begin adopting anti-hazing laws as soon as possible.

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Government Lawyer Convicted of Hate Crime in Harassment Case

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In a classic case of “he should have known better,” a lawyer (or, more likely, a soon-to-be-former lawyer) in New York has been convicted of a felony for making harassing phone calls to his African-American neighbors, which included threats and the use of racial slurs. He tried to make it look like members of the Ku Klux Klan were responsible for the calls, and routed the calls through an Internet service that prevented the source of the calls from being identified through caller I.D. However, the police were able to track the calls back to him.

This lawyer also happened to work for the government of the state of New York. The calls were made in 2010, and after being charged, he resigned from his $104,000/year job in Albany.

And now, finding new employment in a job market that’s notoriously bad for legal professionals is the least of his worries: the defendant has been sentenced to 1-3 years in state prison for criminal harassment, with a felony hate crime enhancement. The prison term is the maximum allowed for the crimes he was convicted of.

I predict that, on some quarters of the Internet, there will be the predictable howling about how this case is another example of “political correctness” run amok, and how hate-crime laws are chipping away at free speech, they give racial minorities special protection, etc., etc.

I should make a few things clear at the outset: hate crimes laws do not give any particular racial group “special” protection. Hate crime laws do not actually create any new crimes. They do not enhance punishments because of the race of the victim. Rather, they enhance punishments for crimes that were motivated by the victim’s race (or other classification, such as religion, gender, or sexual orientation). So, in theory, a white person who robs, assaults, murders, or commits any other crime against another white person specifically because of the victim’s race, could be charged with a hate crime.

Furthermore, hate crime laws do not have any impact of free speech. They don’t make it illegal to express racist, sexist, or homophobic sentiments, if one is so inclined. However, the First Amendment right to free speech has never been interpreted to allow harassment or credible threats of violence against individuals. So, this man’s conduct would have been a crime even without the racial element.

And the fact that he made racist statements in the phone calls was not, in itself, a source of criminal liability. Rather, it was simply used to prove the fact that his actions were motivated by the race of his victims, therefore warranting the hate crime enhancement.

Reasonable minds can differ on whether or not hate crime laws are a good idea. However, there’s a lot of confusion around about what these laws actually do. And when any high-profile hate crime case enters the public discussion, these misconceptions are often repeated by pundits as if they’re fact, which further increases the public’s misunderstanding of the nature and purpose of these laws.

For example, in 2009, Congress passed, and President Obama signed, a law that extended federal hate crimes laws to apply to crimes committed against individuals based on their sexual orientation.

Conservatives in Congress opposed this, because they claimed it might end up being applied in ways that limit free speech and freedom of religion. Presumably, they were concerned that it could be used against religious leaders who speak out against homosexuality.

Predictably, these fears proved to be groundless. Of course, anyone who knew about how hate crime laws actually work could have told them this, because criticizing homosexuality is not, never has been, and never will be, a crime.

After all, hate crime laws that cover crimes motivated by race have been around, in various forms, for decades. Yet groups such as the KKK and neo-Nazi organizations are still around (and, sadly, have shown signs of growing in recent years). I don’t like those groups, nor do I like homophobia. I do, however, love the fact that such groups are allowed to freely express their views, no matter how repugnant I find them.

And I would strongly oppose hate-crime laws if I believed, even for a second, that they would have any impact on our constitutional right to free speech.

However, I believe that crimes motivated by something as irrational as hatred are particularly egregious, and should be subject to heightened punishment. And it’s not as if there isn’t precedent for enhancing the punishment for certain crimes based on their motivation. For example, in every state, murder is illegal (obviously). However, many states have heightened penalties for certain types of murder. For example, in states that have capital punishment, a murder committed primarily for financial gain (such as contract-killing) is often one of the aggravating factors that can make a homicide eligible for the death penalty.

Now, some would say that we shouldn’t care why a particular crime was committed. Rather, we should simply focus on the result of the criminal’s actions when considering a punishment. This, in my view, is a terribly shallow view of culpability and justice. If criminal punishment is, at least in part, about casting moral blame onto the perpetrators of criminal acts, we should look at their actual culpability. And a person’s mental state when committing a crime is obviously an element of that.

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Is There a Right to Use Marijuana for Religious Purposes?

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The current federal policy on marijuana is, to say the least, confusing. When President Obama took office, his Department of Justice said that it would not make prosecutions for the possession of marijuana a major priority, and that medical marijuana operations that are legal under state law will not be a target for federal prosecution.

Supporters of marijuana legalization or decriminalization were pretty excited, believing that, after years of federal crackdowns, a president was finally taking (in their view) a more sensible approach to marijuana.

However, over the last year or so, the federal government seems to have taken a harder line on marijuana. While there’s no question that the drug is illegal under federal law, and that federal law trumps state law (so the federal government can still prosecute people who use medical marijuana, even if they’re complying with the laws of their state), the federal government does have a good deal of discretion in deciding which cases it wants to prosecute, and under what circumstances to do so.

This controversy usually comes up in the context of medical marijuana. After all, there is mounting evidence that marijuana, while certainly not a cure-all, has a wide range of medical uses that are, at the very least, worth exploring. For example, it is one of the most powerful anti-nausea drugs known, which makes it a very effective treatment for some of the side effects of chemotherapy, greatly improving the quality of life for some cancer patients. And there is some evidence (though it’s far from conclusive) suggesting that it may even be able to prevent or treat some forms of cancer.

So, it’s not surprising that a lot of people get a little riled up when the federal government starts shutting down medical marijuana dispensaries.

However, there’s another non-recreational use of marijuana: religious rituals. Many indigenous religions treat marijuana as an entheogen (a substance that triggers what its user believes to be a religious experience), and use it ritualistically.

And as you probably know, the First Amendment enshrines the right of all Americans to freely exercise whatever religion they like.

So, a Native American group that uses marijuana for religious purposes should be exempt from laws against marijuana use, right? Not exactly. The Supreme Court has long ago held that laws of general application (i.e., laws that apply to everyone) that happen to place a burden on some religious practices are generally valid, though they do still warrant some scrutiny under the Constitution.

These generally-applicable laws are typically subject to “rational basis” review, meaning the government only needs to show that the law is related to a valid government interest. And whether you agree with them or not, most courts have held that preventing illegal drug use is definitely a valid governmental interest.

The Native American group sued the DEA in federal court after it seized a FedEx box containing marijuana, with a member of the group as its intended recipient. A federal district court dismissed the case. However, the 9th Circuit Court of Appeals just ruled that the case can continue. The appeals court is not handing the plaintiffs a victory – it’s just saying that their lawsuit should be allowed to proceed.

The court largely relied on the Religious Freedom Restoration Act, which requires federal courts to examine laws that burden religious practices under a more stringent “strict scrutiny” standard, requiring that the government prove that any law that substantially burdens religious practices be justified by a compelling government interest, and that the law is narrowly tailored to advance that interest.

The government argued that the religious group did not have a right to bring the lawsuit, because the Department of Justice had no plans to prosecute any of its members for transporting or using marijuana. In its ruling, the appeals court disagreed, holding that the threat of prosecution is not required to give the religious group standing to sue, because the government had already seized their marijuana, raising a legitimate issue over whether or not it had a right to do so.

The lower court will now have to rule on the merits of the case, deciding whether there is a constitutional and/or statutory right to use marijuana for religious purposes, laws generally prohibiting its use notwithstanding.

This is an interesting issue. Instinctively, I’m inclined to believe that there should be an exception to marijuana laws for religious use, since many different religions have used it in their rituals for thousands of years. However, this view is largely informed by my strong belief that marijuana should be decriminalized altogether.

Obviously, when the court is making its decision, the judge’s view on whether or not marijuana should be legal generally should not enter into his or her decision-making process. Of course, not being a judge, I have the luxury of letting my views on these issues be informed by whatever factors I see fit.

But taking a more detached view, I still don’t see why the First Amendment and the Religious Freedom Restoration Act wouldn’t protect the rights of people to use marijuana, or most other drugs that are otherwise illegal, for bona fide religious purposes, provided that the drugs are used in moderation, and possibly under the supervision of people who will remain sober, to ensure that the drug use poses absolutely no threat to anyone who is not directly involved in it (to make sure that nobody drives under the influence, for example). I don’t think the overall goals of anti-drug laws would be seriously impaired by carving out a narrow exception.

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Telling Your Employees to “Look Younger” Is Probably Age Discrimination

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Under U.S. law, and the laws of most states, it is illegal for employers to discriminate against employees on the basis of age. These laws are meant to protect older workers, applying only to workers over the age of 40.

It’s pretty rare these days for employers to deliberately engage in unlawful discrimination. However, there are still employers who implement policies that have a discriminatory effect on some groups. In some cases, this can also be grounds for a discrimination lawsuit.

One interesting case (also seen here) has appeared out of Texas: a woman is suing her former employer because she claims that she was fired after she refused to dye her gray hair a darker color, and wear “younger fancy suits.”

Her argument is that this effectively amounts to age discrimination. And if her allegations are true (and she’s able to prove it), she probably has a good case. In general, employers are allowed to regulate the appearance of their employees: obviously, requiring employees to be presentable on the job is a perfectly reasonable policy. Likewise, if the employer requires employees to wear some kind of uniform, that’s generally fine, and does not run afoul of any discrimination laws.

However, there are times when requirements related to appearance can have a disproportionate effect on certain groups of people, and may unduly exclude them from their jobs. For example, suppose a company prohibits its employees from wearing any type of hats on the job. On its face, this rule doesn’t appear to discriminate against anyone. However, some religions (e.g. Sikhism and some denominations of Judaism) require adherents to don certain types of headwear, for religious purposes.

So, such a rule, although it does not appear to target any particular protected class, would have the practical effect of excluding some qualified employees solely because of their religion. This would be grounds for a lawsuit against the employer for religious discrimination, and it’s also why the vast majority of employers that have “no hats” policies also have an exception to the policy for religious headwear.

If the allegations in this case are true, the reasoning for finding that unlawful discrimination has occurred would be similar, though if an employer actually had a policy against gray hair and “old-looking” clothes, the fact that this could result in an age discrimination lawsuit is far more obvious than the example above.

And that’s why I have to wonder what an employer would have to be thinking in order to come to the conclusion that having such a policy is a good idea. After all, it’s plainly obvious how such a rule could disproportionately exclude employees based on their age.

The employee also alleges that, after she was fired, she was replaced by another female employee who was 10 years younger. While none of this is proof-positive that the employer intended to discriminate against older employees, none of it exactly bodes well for them. On top of that, the employer had not given her any warnings about her performance, and it did not contest her application for unemployment benefits. But again, it all depends on whether or not these allegations are actually true.

After all, it’s not exactly unheard of for a disgruntled employee to file a discrimination lawsuit against their employer, simply for the purpose of making the employer’s life more difficult. However, these cases are pretty rare, since an unsuccessful lawsuit might also be very costly and time consuming for the plaintiff.

Age discrimination in employment tends to get far less public attention than race, gender, and religious discrimination. Because of this, cases of age discrimination often fly under the radar.

However, age discrimination remains an issue. And while new college graduates who are strapped for jobs may be a little irked that older employees who don’t want to (or can’t afford to) retire appear to have their positions protected by law, the aims of laws against age discrimination are noble ones, and, in general, I think that they should be vigorously enforced.

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Wage and Hour Lawsuits are on the Rise

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It looks like plaintiffs’ lawyers have their work cut out for them in a new breed of lawsuit that’s quickly grabbing hold of the nation.  “Wage and Hour” litigation is getting bigger, especially in federal court.  Wage and Hour claims typically involve situations where an employer fails to pay an employee minimum wage or overtime pay according to the standards set out in the Fair Labor Standards Act (FLSA).

Wage and hour claims are different from your usual employment lawsuits involving harassment or discrimination- those tend to involve only one employee in a somewhat isolated incident.  In comparison, these newer wage and hour claims we’re seeing can involve an entire class of employees- sometimes hundreds or even thousands working for the same company.  These class action suits can create huge chunks of losses for the employer, with many of them ending in settlements of anywhere from $10 to $90 million dollars.

Federal Judicial Caseload Statistics reports that well over 6,000 wage and hour lawsuits were filed in each of the years 2011 and 2010.  Overall, the federal courts have seen a 325% increase in these types of claims since 2001.  For anyone familiar with legal trends, this represents just an absolutely massive increase in labor cases.  These figures actually should raise some concern, especially for major employers who might be negatively affected by this new trend.  Why the sudden spike in wage and hour claims?

For starters, legal analysts suspect two distinct factors that may be linked to the increase in wage and hour claims, both of which have to do with exemption laws (if an employee is classified as “exempt” they may not be entitled to overtime pay).  First, it’s possible that many employers have been intentionally misclassifying employees as exempt in efforts to cut company costs.  Though this is illegal, with today’s economy, some outfits have been desperate enough to engage in this type of conduct.

The second, more complicated factor is that employers might be lacking a thorough understanding of wage and hour laws.  Exemption laws are difficult to navigate already; combine this with the many changes in the workforce that we’ve seen in the past decade, and it starts to become clear why so many employees may have been misclassified.  For example, wage-hour laws are not at all clear on many new developments like:

  • Alternative Work Weeks:  A good chunk of the working sector doesn’t follow a rigid, 9-5, M-F schedule anymore.  More and more people are working odd weeks, like M-Thu, and Sat., or weeks involving 10 hour days.  Nurses and other care providers are especially known for working non-standard shifts.  Exemption laws also don’t specifically define what a “working day” is and so it’s getting more difficult to monitor employee hours.
  • Odd Management Structures:  Exemptions apply especially to persons working in executive, administrative, or professional positions.  In practice, more and more businesses are actually being run by persons with titles like assistant managers rather than actual managers.  This makes it difficult to classify managers, since exemption eligibility is based on duties performed and not generic job descriptions.
  • Interns:  Full-time unpaid internships are particularly prone to employment abuse, as we’ve blogged about in the past.  Many have debated about whether interns should be paid minimum wage, and some employers may be engaging in FLSA violations with regards to their interns.
  • Work-related Technological Advancements:  Technology always seems to throw a wrench in the legal system.  Here we’re talking specifically about mobile devices that allow a person to put in work while away from the office.  It makes it much more difficult to determine exemption status if a worker is constantly performing work tasks while away from the office.

At first I thought this was just another case of the frivolous lawsuit craze that is (sadly) characteristic of our so-called “litigious society”.  But upon closer examination, to me it looks like something more serious is going on here.  I mean, there are literally thousands of these cases being filed, all of them having to do with FLSA and exemptions.

Yes, these people need to be compensated for lost pay, but I don’t think this is a case of bandwagon litigation.  Something seriously needs to be done on the employers’ parts, such as getting a better grasp of wage and hour laws.  Part the danger here is that one employer’s mistake or intentional disregard of the law can affect entire classes of workers.  And also the law itself needs to be updated in this area.  The Fair Labor Standards Act is well over 70 years old, which makes it a dinosaur by legislative standards.  No one has done anything in a long while in terms of incorporating information-age changes into FLSA.

If you actually think about it, business owners and managers need to start protecting themselves against wage and hour claims, because they can be deadly to a company, especially class action lawsuits.  We’re talking major, major losses for corporations, not to mention the time and frustration involved for laborers.  If these trends continue (which it looks like they will), more and more lawyers might be billing for overtime pay as well.

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