Monta Vista High School students have been accused of creating a “kill list,” targeting African-American students, and some parents are claiming the school district tried to cover it up. Attorney Richard Richardson filed suit on behalf of one of the students who has since left the school. “They gave a specific and credible threat that they would kill her with bullets, and they talked about how many bullets it would take.” The hit list reportedly was not the only act of racism. Two months ago, a message that used the word lynch and the “N” word was posted on Instagram. Richardson says the students were not punished. See video: https://youtu.be/zhZtuyulyYE
I just returned from a one-month trip to Israel, where we celebrated the bat mitzvah of my eldest daughter, Maya. Israel is, in my opinion, the most incredible country on Earth. For someone like me who loves history, archaeology, spirituality, politics, good food, great weather, and spending time with family, there is no better place to be (apologies to the Grateful Dead’s “Tennessee Jed”). Yet my time in Israel did not afford me enough opportunity to delve into its depth. I could, and probably should, spend a lifetime there to explore and understand that depth.
Since we traveled as a family, I wanted to include lighter activities for our daughters, aged 12 and 8, such as plenty of beach and pool time, rafting on the Jordan river, and making chocolate at a kibbutz chocolate factory. The one activity I did not enjoy was shopping. But I live with three women. My wife graciously encouraged me to take off for Jerusalem on the days when she and our daughters went shopping in malls near her family village of Gedera. This allowed me plenty of time in Jerusalem, a city I really love.
For a Jew, Jerusalem is the center of the world. And at the center of that center is the Kotel, or Wailing Wall, the western remnant of the Temple Mount, destroyed by the Romans over two thousand years ago. The Kotel is where Jews have for generations gone to pray, as it is near to the sites of the First Temple and the Second Temple, where ancient Jews sought to be close to G-d.
I must admit that, as far as prayer goes, my ability to pray is much like my “prowess” in jogging and tennis. Without constant practice, I’ve lost my skills.
When I first approached the Kotel, I was in awe. I also realized my prayers felt dry and rehearsed. I had asked G-d for the usual stuff (i.e., good health for me and my family, a good living, etc.), except that it felt like I was eating at the best restaurant in the world but could not taste the food. I sensed I was in a spiritual block. Before consulting a rabbi (there are plenty hanging around the Kotel), I decided to try to work it through myself.
The next day my girls accompanied me to the Kotel. As we approached the wall, I told my daughters, Maya,12, and Nava, 8, some of its history, though they both knew a bit about it from their Jewish day school classes. I decided to add a mystical twist, suggesting they each approach the wall and seek out one of its embedded Herodian stones, set in place more than two thousand years ago. I advised them: “Find a stone that speaks to you. Then open your heart and pray to G-d.”
After about forty-five minutes of prayer, we reconvened at the plaza. I queried the girls on how it was for them. Maya, who had celebrated her bat mitzvah ten days prior on top of Masada, volunteered “It was good.” She confided that she was a little anxious about starting the sixth grade in the fall. She had heard that the math curriculum was harder than fifth-grade math, and she was worried about it — and whether all the kids in sixth grade would be as sweet and kind as they were in the fifth grade. She was also concerned about the California drought and asked G-d to deal with that. After sharing all this with me, she broke into a big smile and then told me that she felt her younger sister did not really understand the difference between praying and making a wish before blowing out candles on a birthday cake. She had listened in on Nava’s appeal at the Kotel: “if you get me a pony, I promise we will keep it in the back yard, and I’ll be responsible for feeding her.” Maya and I both chuckled. But later that night I reflected on both daughters’ prayers. I wondered if they were the spiritual teachers I needed for my own breakthrough on praying.
The following day I approached the Kotel with a new paradigm, and suddenly, I felt like an in-shape athlete. Instead of merely asking G-d for the things I wanted, I realized G-d and I were in a relationship, and like every relationship, there needs to be communication and love before asking for things. Instead of praying for stuff for me, I prayed for the ability to give more heart-based charity and to be less judgmental and more compassionate. In the ensuing days, I noticed my praying was more fluid and deeper. I noticed something else remarkable. During my first trip to the Kotel, I had been standing in prayer next to a fellow who wore shabby clothes and, frankly, smelled pretty bad. Even in this most holy of places, I could not avoid judgmental thoughts about the man. Yet, gradually, after my paradigm shift in prayer, my feelings about this fellow changed. No longer did I view him in a negative way. He was like everyone else here, a person who was reaching out to G-d.
As I mused over this radical change in my thinking, I recalled a Reb Shlomo Carlebach story about a student who, after encountering a gruff and course person, has a similar paradigm shift. The student realizes that the person whom he had harshly judged was in reality one of the hidden thirty-six righteous people in the world. I am not so enlightened to know if the man I encountered at the Kotel was at that level, but it did make me wonder. It demonstrates to me I still have a lot of spiritual work to do.
Another perspective on the fifty year farewell tour of the Grateful Dead
My intense and everlasting connection to the Grateful Dead is well known to those who know me – and to those who happened to have read my earlier blog post about my experiences with the Dead. While a high school and college student in New York, I attended over fifty Dead shows and considered myself a legitimate “head,” traveling to see the band at Harpur College, Cornell, Long Island, Knickerbocker Arena, and Madison Square Garden, amongst some of the many East Coast venues. By 1978 I found myself as a first year law student in San Diego California (having tired of New York winters). I happened to meet my neighbor, Bill Walton, who had just signed a contract to play with the then San Diego Clippers. Bill and I became instant friends. Shortly thereafter we attended the close of Winterland in San Francisco. And later that year the Dead came to San Diego to play shows in Golden Hall. There were parties and dinners at Bill’s house after the concerts. I met and became friends with Ramrod (legendary “president” of the Grateful Dead and head of the road crew) and was awed when he introduced me to Jerry, Bobbie, Mickey and Bill K. Within a few weeks Ramrod had given me a number of legal assignments and, while still a first-year law student at California Western School of Law in San Diego, I found myself doing legal work for the Grateful Dead. Talk about a long strange trip! Over the next twenty years I worked off and on for the Dead and attended over 300 shows, often backstage.
1995 was a tough year for me. Not only did Jerry Garcia leave this world but, by coincidence (if there is such a thing), my mother died that year too, along with my best friend, Arthur H. Hartfelt, a rather “famous” Deadhead. Jerry and my mother had met once. My mom was a unique and wonderful Jewish mother from a very tough neighborhood called Bensonhurst in Brooklyn, New York. In the early 1990s she came to San Francisco as a tourist and was mugged outside of the St. Francis Hotel. It was a big local news story, and KTVU sent a camera crew to the hospital to interview my mom, recovering from broken hips. I suppose the media angle was this: a sweet grandmother from a tough neighborhood in Brooklyn, who had never been assaulted there, gets assaulted in San Francisco. The owner of David’s Deli on Geary Street sent a package of matzah-ball soup and corned beef sandwiches to my mother’s hospital room daily. Jerry Garcia, too, had seen the TV coverage and was so moved he drove to St. Francis Memorial Hospital to visit my mom. I missed seeing Jerry, but when I arrived later that day my mother told me that Jerry had come to visit. She told me he was very pleasant. She also told me that she had told Jerry he was very handsome but would look better if he trimmed his beard. (My mother said that to all of my friends – to get haircuts.)
Suffice to say, the Dead have been an important part of my life. So when I first heard about the Grateful Dead reunion tour I became somewhat sad, knowing I would miss it. Earlier this year my wife and I were wrestling with the idea of how to celebrate our oldest daughter’s Bat Mitzvah. A Bat Mitzvah is a right of passage for a Jewish girl upon reaching the age of 12, becoming obliged to fulfill more of the rights and responsibilities of being an adult. Maya had come home from school one day and told us that she had learned of the history of Masada, the desert fortress on the shores of the Dead Sea. This story deeply affected Maya and she announced that she wanted to have her Bat Mitzvah on top of Masada!
For those of you who do not know the history, over two thousand years ago the imperial Roman army attacked and destroyed Jerusalem and other centers of Jewish life in the land of Israel. The Romans sacked the temple, the center of Jewish practice and culture, and cast all Jews out of the country. The exiled Jews were scattered across the globe. Israel was renamed Palestine. In resistance, a small group of Jewish revolutionaries (who weren’t about to take that shit) fled Jerusalem and set up camp in an abandoned mountain fortress called Masada in the desert. The Romans were not content to let these revolutionary zealots live there, so they invaded Masada. As a statement of ultimate protest – refusing to become Roman slaves – they took their own lives.
When Maya told us of her Bat Mitzvah wishes, I was inspired to take out a recording of Jerry Garcia singing with Merle Saunders The Harder They Come, a Bob Marley classic. “I would rather be a free man in my grave than living as a puppet or a slave.” The next thing I did was to begin planning a one-month trip to Israel to celebrate Maya’s Bat Mitzvah. Needles to say we selected the dates, and purchased airline tickets, long before the Grateful Dead announced their reunion farewell tour.
Oh well. So I write this essay from Israel, where I make a l’chaim ( a toast to Life). I make a l’chaim to those who will be attending the shows this weekend and next weekend. And to those like me who have other weekend obligations and responsibilities that are as meaningful and awesome as the Dead concerts.
If Jerry were here (or at my daughter’s Bat Mitzvah in Masada) I’m sure he would understand and say, l’chaim! – To Life!
The Law Offices of Joel H. Siegal has filed a federal civil rights lawsuit against the San Francisco Police Department and the City and County of San Francisco after uniformed and plainclothes police officers arrested and detained at gunpoint 19 innocent African-American men who were recording and performing a music video in the Bayview-Hunters Point section of San Francisco. The suit alleges that without probable cause or a search warrant, SFPD officers subjected each of the 19 African-American men to unreasonable search and seizure and humiliation at gunpoint. The 19 men were told to get on their knees and were then handcuffed, an act reminiscent of the most vile chapters of US history when government policies allowed whites to imprison any black person who failed to produce freedom papers or a certificate of freedom because it was assumed that African Americans were subhuman chattel, not fit to enjoy any civil rights. ￼
Below is an article featured in the San Francisco Chronicle today about an interesting case my office is involved in. This case addresses issues of safety on campus, specifically Title VI and Title IX of the Civil Rights Act of 1964:
The University of California is asking a judge to toss a federal lawsuit by parents who say UC is responsible for the death of their daughter and her young son, who were in a car driven by the daughter’s drunken boyfriend last year when he slammed it into a tree.
The suit, Lopez vs. UC Regents, is not focused on details of the crash of May 18, 2012, which happened six days after Milanca Lopez, 22, graduated from UC Berkeley with a bachelor’s degree in social welfare. The driver, Jose Lumbreras, is serving six years in prison for vehicular manslaughter while intoxicated.
Instead, the suit says UC failed to take legally required steps to investigate and protect Lopez after she reported to her housing director that Lumbreras was abusing her and her son, Xavier Chevez, 6. The three lived in Lopez’s apartment in University Village.
UC says the Lopez family hasn’t proved that the regents or Cephas John, a housing coordinator at UC Berkeley, knew about an abusive situation or, if they did, that they could have prevented the tragedy. Judge Edward Chen is scheduled to hear the dismissal arguments at 1:30 p.m. Nov. 14 at U.S. District Court in San Francisco.
Scrutiny of system
Regardless of its outcome, the case raises questions about how the university handles allegations of violence from students and whether UC complies with federal laws requiring swift, attentive responses to complaints.
The case comes as the state auditor is looking into how UC and California State University address students’ allegations of abuse. Lawmakers gave the audit priority status in August after UC students testified that they have been discouraged from reporting sexual abuse and that their claims are often met with skepticism. Nine UC Berkeley students and alumni have similar complaints against UC pending with the U.S. Office for Civil Rights.
Lopez’s parents, Margarita and Medardo Lopez, who live in Hawthorne (Los Angeles County), say their daughter and grandson would still be alive if John had properly followed up on a call Milanca Lopez made to John weeks before her death.
“This is a feminist case. It’s about the right to be safe on campus,” said Joel Siegal, the attorney representing the Lopez family. “It’s about the university following policies and procedures.”
UC takes a profoundly different view.
“Because a college or university has no special relationship with its students, its employees do not owe students a duty to protect them from injuries that other students cause,” UC says in court papers prepared by the law firm Lombardi, Loper & Conant in Oakland.
The family’s lawsuit rests heavily on an e-mail received by Lopez’s mother, Margarita Lopez, in March. It was from John, who oversaw Milanca’s housing at UC Berkeley from her arrival in 2007 until her death. At the time, Milanca was preparing for graduate school at UCLA, and John was helping arrange the move.
His e-mail, responding to a request from Margarita for recollections of her daughter, called Milanca “a truly exceptional person” and praised her success at overcoming the difficulties of being a single parent while earning a degree.
But John also said in the e-mail that Milanca phoned him sometime before May 7, 2012, “about a domestic violence incident” and that when he returned her call, she “assured me that everything’s OK.”
Mandate to report
The problem, according to the lawsuit that names John, the regents and Lumbreras as defendants, is that John was a ‘security authority’ mandated to report such matters to the police and to the Title IX officer of the campus.
Title IX is the federal law intended to protect students from sex discrimination.
“There’s an acknowledgement that college students don’t want to call the cops or authorities,” Siegal said. “So lots of people are mandated as security authorities. As a graduate teaching assistant, Lumbreras himself may have been a security authority.”
The university argues that there is no connection between the fatal car crash and whether John reported the alleged abuse.
“Ms. Lopez’s and Xavier’s deaths from Lumbreras’ drunk driving were not reasonably related to any failure by Mr. John to protect her from domestic violence by him,” UC argues. And “even if the drunk-driving accident was a foreseeable consequence of his purported failure to protect her,” the court papers say that “Mr. John did not owe a duty to protect Ms. Lopez from Lumbreras’ domestic violence.”
‘Cry for help’
The family says UC has it wrong.
If Lopez’s “cry for help” had been reported, UC would have begun an investigation and intervention that might have altered events so that she wouldn’t have gotten in the car with Lumbreras on May 18, Siegal said.
The suit also cites an array of domestic violence incidents: neighbors who said they had to protect Lopez and her child when Lumbreras was drunk. That he forced the child to witness sex. And that he went on a drunken rampage in her apartment as she and Xavier took refuge with neighbors.
“We’re not just talking about a 22-year-old woman. We’re talking about a 6-year-old,” Siegal said. “The university invited the 6-year-old to live on campus, then failed in their obligation to protect him.”
The suit, which also accuses Lumbreras of wrongful deaths, seeks unspecified financial damages.
The Lopez case is only the most extreme example of a climate of mistrust about sexual violence that exists across the UC system.
Title IX and the federal Clery Act specify how universities must respond to allegations of sexual violence and other gender-related crimes.
The state audit will look at how UC and CSU report sexual assaults, whether students are discouraged from reporting them, what prevention efforts exist, and at other areas of compliance.
Meanwhile, posters have been appearing across the UC Berkeley campus featuring students in revealing clothing with such captions as “My dress is not a yes.”
The Cal Consent Campaign by the student government features men as well as women.
Last month, my office filed an appeal with the Department of Education Office of Civil Rights (OCR) regarding Anti-Semitism on the campus of the University of California, Berkeley.
As the Daily Cal reports:
Two San Francisco-based lawyers have filed an appeal asking the U.S. Department of Education to revisit a previously dismissed complaint alleging that UC Berkeley administrators failed to respond to a hostile campus environment for Jewish students.
Lawyers Joel Siegal and Neal Sher filed the appeal Oct. 4 with the Department of Education’s Office for Civil Rights, asking the office to reinvestigate its initial complaint against UC Berkeley that was dismissed in late August.
Like the prior complaint, the appeal alleges that Jewish students at UC Berkeley faced intimidation, violence and offensive comments during various events on campus, including what the lawyers claim to be derogatory language directed at Jewish students by the student group Students for Justice in Palestine during Israeli Apartheid Week.
In their appeal, Siegal and Sher claim the OCR failed to fairly investigate various incidents of intimidation and violence on campus.
Siegal and Sher allege the OCR is practicing a double standard by condemning a “ghetto-themed” party hosted by a fraternity at UC San Diego but failing to address offensive events during Israeli Apartheid Week at UC Berkeley in 2010. They add that the events during Israeli Apartheid Week were “equally offensive and odious to Jewish students.”
“In some ways, Apartheid Week is more offensive,” Siegal said. “It is a full week on-campus, (and) it portrayed Jews as blood-thirsty barbarians.”
After investigating Siegal’s initial complaint, the OCR dismissed the allegations, saying events such as Israeli Apartheid Week did not violate Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color or national origin.
UC Berkeley spokesperson Dan Mogulof said the appeal is without merit in light of the OCR’s past ruling on the issue.
“Given the extent to which the university’s position has been fully supported to date, we see the appeal as an unfortunate, quixotic endeavor,” Mogulof said in an email.
Sophomore Michaela Fried, a vice president of Tikvah, a campus organization that advocates self-determination for Jewish people in Israel, said she has at times felt uncomfortable as a Jewish student at UC Berkeley.
“There have been multiple instances since I’ve arrived at Cal of swastikas being drawn in bathrooms and classrooms on campus and in the dorms,” she said in an email.
Some students, such as Elon Rov, a senior and co-chair of UC Berkeley’s chapter of J Street U, a Jewish student political advocacy group, did not experience a hostile campus climate.
“This school has been extremely welcoming and accepting of Jewish practices,” he said. “I feel like I have all the resources I need.”
The OCR also dismissed similar complaints filed by separate individuals against UC Irvine and UC Santa Cruz. Tammi Rossman-Benjamin, a lecturer at UCSC, has appealed the dismissal of her initial complaint that the campus allows a hostile environment for Jewish students by supporting anti-Semitic events on campus.
“The biggest issue is that they misunderstood my complaint,” Rossman-Benjamin said. “It wasn’t that there was anti-Israel speech or events. My complaint was that those events were sponsored by the university.”
According to the OCR, the appeals are under review.
Jessica Felber v. Regents of the University of California
First, I would like to express Kudos to my legal colleague, Ken Marcus, for the honor recently bestowed upon him by The Forward newspaper, as being one of the fifty most influential policy makers in the country. Ken is the founder and director of The Brandeis Center. www.Brandeiscenter.com Two years ago, Ken asked me to serve on the legal advisory board of the Center, a position which I still proudly hold. The Center is directed to protect the civil rights of students throughout the United States. Ken recognized my work representing Plaintiffs in the case filed in the United States District Court, for the Northern District of California, Jessica Felber v. Regents of the University of California.
The issue of protecting students’ rights on campus and in schools throughout America is an important issue and one that is dear to my heart. As a parent of two young children in school, I recognize the importance of having active and engaged school administrators who work effectively to stop school bullying, bigotry, harassment and discrimination, be it discrimination based on race, sex, religion or sexual orientation discrimination.
In this Blog, let me give one example of how an effective school dealt with the problem. We have all heard of Yale University, and we know that it is a world class institution. My oldest bother actually received his PhD in sociology from Yale, and I was fortunate enough to visit the Campus often during his tenure.
Yale, like many universities, has an active ‘Greek’ presence on campus featuring many Fraternities and Sororities. One of the Fraternities had a rather obnoxious (and illegal) practice. It seems that new pledges to the Fraternity, were required to chant, “No means yes, and yes means …”. One does not have to have a PhD in sociology or law to understand the offensive and dangerous quality of requiring male students to chant this on campus. Such an action, in my view, is violative of Title IX of the Civil Rights Act, is offensive and obnoxious to women students and is illegal. Fortunately, Yale, as a world class institution recognized that the actions of this Fraternity were offensive and violative of the law. The Fraternity was censored and punished.
Recently, The Office of Civil Rights of the Department of Education, entered into a “voluntary resolution agreement” to end the investigation of claims of discrimination against Yale on behalf of students complaining against that offensive Fraternity. The OCR worked their mandate to assure that an educational instution has an environment and culture in which all students feel safe and well supported.
Many people have asked me whether the court can be an effective tool in stopping school bullying and bigotry in the classroom, whether that bigotry arises from discrimination based on race, sex, national origin or sexual orientation.
Recent decisions of the Ninth Circuit and other Federal courts clearly confirm that students who complain about hostile environments at their schools based on race, sex, or sexual orientation in that their school administration demonstrates “deliberate indifference” under Title IX and Title VI have actions available to them Montiero v. The Tempe Union H.S. Dist. (9th cir 1998) 158 F. 3d 1022, 1032- 1035; Flores v. Morgan Hill USD (9th Circuit 2003) 324 F. 3d 1130; Vance v. Spencer County Pub. School dist. (6th Cir. 200) 231 F. 3d. 253, 262 and Jones v. Indiana Area School district (W.D. Pa. 2005) 397 F. Supp 2nd. 628, 644-46. This line of cases followed the Supreme Court decision of Davis v. Monroe County Bd. of Education (1999) U.S. 629 649 which defined a “reasonable standard for the test of deliberate indifference” At least one Federal court has expressed that deliberate indifference is a fact-laden question for which bright lines are ill suited. Tesoria v. Syosset Central Sch. district (E.D.N.Y.) 2005) 382 F. Supp 2d 387 399.
In the case of Jessica Felber v. The Regents of the University of California, I argued at the Federal court that,
“…It is not denied that the content of the “checkpoint” demonstrations is hate speech equal in legal odiousness to use of the “N” word, or similar racist and sexist expressions. The Defendant does not deny that the entire MSA/SJP checkpoint presentation is a racist “passion play” of the worst sort which, like the notorious anti-Semitic performances of Oberammergau, Bavaria, portray Jews as blood thirsty and treacherous villains….” Oberammergau, James Shapiro (2000) at page ix.
However, unlike Oberammergau Passion Play, which is performed in a traditional stage setting, The Regents have allowed the MSA/SJP to present their racist performance in the middle of an important campus cross road, Sproul Plaza, and to include interaction confrontation and violence against students who, like these Plaintiffs, did not choose to buy a ticket in order to experience the performance.
The moral of this is that we must be vigilant to have schools which are free of bullying, and racism. And yes, the courts can be effective in stopping that bullying.
As described in the history/bio section of my web site http://www.litigateforjustice.com/ I have been blessed to know and work with a number of really special people. While I was in law school, Bill Walton and I were neighbors in San Diego, and to this day, we are still good friends. Bill introduced me to Lawrence “Ramrod” Shurtliff, the legendary chief Roadie, and President of the Grateful Dead organization. Ramrod was really the heart and soul of the Grateful Dead.
In 1978, during a dinner at Bill’s house, I described to members of the Grateful Dead, including Jerry Garcia, Bobby Weir, Mickey Hart, and Ramrod, how impacted California public school music programs would become due to budget cuts connected to Proposition 13. A few days later, unsolicited, an envelope came for me from the Grateful Dead office with a note from Ramrod. He wrote,” ….Everyone was touched by what you spoke about the other night, let’s do something about it…”. To my amazement, there was also a check for $10,000.00 in the envelope. When I called Ramrod to ask about the check, he simply said, “There is a problem, go fix it.” I was a young law student. I now suddenly had a client, a problem, and a way to address the problem. I had my marching orders from the Grateful Dead, and a check from the Rex Foundation, the Grateful Dead’s charitable arm. Over the next few weeks, I was able to coordinate the purchase and distribution of hundreds of musical instruments which were distributed to public schools.
This episode began my friendship with Ramrod, which lasted over twenty five years until his death. At one point in our friendship, after I had already been practicing law for about twenty years, Ramrod asked me to prepare trust and estate documents (i.e., wills and trust) for him and his wife Frances. Since that is not an area of the law that is my specialty, I referred the matter to a colleague of mine. Ramrod asked me to attend the meeting with the estate planning lawyer. When the lawyer asked Ramrod who he wanted to serve as executor of his and his wife Frances’ estate, I was surprised and honored that I was asked to serve.
As these things often happen, just several months after preparing his estate plan, sadly, my good friend Ramrod was diagnosed with an aggressive cancer. A number of colleagues and friends were summoned to the Northern California Hospital. There, in the lounge, Bob Weir, Mickey Hart, Steve Parrish (another legendary roadie of the Dead), Bill Walton and I gathered to hear the very bad prognosis from the physician. As the doctor told us about the various conditions and their consequences to our friend’s prognosis, I could not help but think about the lyric from the Grateful Dead song “The Wheel” that Mickey Hart, Bobbie Weir and Jerry Garcia had sung thousands of times. As the doctor continued his descriptions about the cancer and its ravages on various organs of the body, I couldn’t help but think of the lyrics from “The Wheel,” “…If the thunder don’t get you then the lightning will…”
Ramrod passed within a few days of that meeting.
I miss Ramrod and his wife Frances. They were the embodiment of the values of friendship, kindness, compassion and consciousness that were part of the Grateful Dead scene. Ramrod was fearless and straight up.
I sometimes think of the lyrics of “The Wheel” during my legal practice. My clients often come to me during a “thunder and lightning” storm of their lives. Sometimes, the thunder or lightning has already stricken them (i.e., they have been hurt, injured, ripped off, fired, or victimized). In cases like that, I try to bring them back to where they were before the storm. Sometimes, clients come to me during a storm, and I help them navigate their way through the thunder and lightning.
Sometimes as a lawyer, it is important to remember as well, the incredible mystery and consciousness of our universe. The lyrics of “The Wheel” help.
By: Joel H. Siegal, Attorney at Law, and Neal M. Sher, Attorney at Law
On March 13, 2013, the student council at U.C. San Diego passed a nonbinding resolution calling for boycotting firms with business ties to Israel. The resolution proposed by a Registered Student Organization (RSO) called Students for Justice in Palestine, (SJP) was similar to resolutions previously passed at U.C. Riverside and U.C. Irvine. The resolution names Boeing, General Dynamics, Hewlett Packard, Ingersoll Rand, Caterpillar and Raytheon among those companies that “profit from Israel’s occupation and violence against Palestinians ….” Eyes are now turning toward U.C. Berkeley to see if another BDS resolution is on the horizon there. A divestment measure was passed in 2010, but subsequently vetoed.
As the furor of BDS hits campuses throughout California and the United States, the fundamental question of whether or not these BDS campaigns could expose the University to liability needs to be addressed. University administrators, faced with shrinking budgets to implement fundamental educational programs, need to be mindful of the financial implications of these BDS campaigns.
- BDS potentially violates Title Six of the Civil Rights Act. Often times, the debate at Student Senate hearings on BDS resolutions, digress to one sided Israel bashing festivals. Title Six of the Civil Rights Act protects students from a hostile and intimidating environment on Campus. The University needs to be mindful of the vitriol expressed in the BDS campaign. As eloquently stated by Natan Sharansky there is a “three D” test for anti-Semitism. First, double standards singling out Israel for criticism while ignoring the more egregious behavior of major human rights abusers in the world; Second, demonization of Israel and distorting the Jewish state’s action by means of false comparisons with Nazis or South African Apartheid; Third, delegitimization i.e. denying the fundamental right of the existence of a Jewish state. These are example of anti-Semitism, and when these arguments are expressed are parts of BDS resolution debate, hostile environments to Jewish students have been created. As Thomas Friedman wrote in the New York Times, “singling out Israel for opprobrium and international sanction- out of all proportion to any other party in the Middle East is anti-Semitic and not saying so is dishonest. University officials should recognize that violation of Title Six has significant consequences such as the possible loss of Federal Funds.
- Passage of a BDS resolution could expose university urustees to liability under ERISA. Support of a BDS resolution may well expose the University and its trustees to Liability under the Employee Retirement Income and Securities Act (ERISA) Sec. 404 (a) (1) (A) (B). ERISA is the Federal law that governs many universities Pension and Trust funds. The law provides that fiduciaries, including trustees, must discharge their duties, “solely in the interest of the participants and beneficiaries for the exclusive purpose of providing benefits to the participants and their beneficiaries. The Department of Labor is in concurrence that investment decisions not based upon a portfolio’s ability to provide benefits for beneficiaries may be imprudent and violates of ERISA. It is hard to imagine that a beneficiary, who questioned a Funds decision to divest from a stock that was providing good return, yet did business with Israel, was improper. Such a decision would no doubt expose university trustees to fiduciary liability.
It is clear, that there are potentially huge legal liabilities for Universities’ who support and fail to effectively monitor BDS campaigns. This article has just scratched the surface of potential University liability for support of these resolutions.
Neal M. Sher is a New York Attorney and former Director of the Office of Special Investigations in the U.S. Department of Justice.
Joel H. Siegal is a San Francisco attorney who specializes in civil rights, and labor litigation
As an employer and manager should you stop, go, or proceed with caution?
Last week I took my seven-year old daughter to a birthday party. I enjoyed watching her and her friends play a game that I had played as a child back on the streets of New York City, many years ago. The game, “Red Light, Green Light, 1, 2, 3,” gave the kids the opportunity to run quickly at the “Green Lights,” stop at the “Red Lights,” and proceed with caution at the “Yellow Lights.”
As I watched the game, I thought that our professional lives, particularly when it comes to making decisions about Human Resources and Employment is much like the game, “Red Light, Green Light.” So sit back, relax and let’s play. As an employer and manager should you 1) stop, 2) go, or 3) proceed with caution?
This week’s question: You are the owner of a 20-person enterprise software firm based in Silicon Valley. You have four software designers who are based in Eastern Europe. You have a sales force of three people. You have other administrative and executive personnel. Claire, your bookkeeper is taking family leave due to the sudden illness of her elderly father. You have met Janet, an experienced bookkeeper who you knew from your last startup firm. You allow Janet to work from home, but require that she spends the first three weeks at your office receiving training in your preferred methods. You wish to hire Janet as a 1099 Contract Laborer rather than an employee.
Red Light? Green Light? Yellow Light?
As with most employment and human resource issues like this one, and likely the ones that you confront in business are “fact based.” You may be tempted to think that if the sales force and the engineers are 1099 contractors, then the bookkeeper could also be a 1099 bookkeeper. But, slow down, and proceed with caution. This is a Yellow Light.
1099 Contract Labor or Employee?
Under the common law test, a worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done. Control need not actually be exercised; rather, if the service recipient has the right to control, employment may be shown. Depending upon the type of business and the services performed, not all of the twenty common law factors may apply. In addition, the weight assigned to a specific factor may vary depending upon the facts of the case. If an employment relationship exists, it does not matter that the employee is called something different, such as: agent, contract labor, subcontractor, or independent contractor.
The following are questions to ask, a comparative approach, to test for Employment Status:
- An Employee receives instructions about when, where and how the work is performed.
- An Independent Contractor does the job his or her own way with few, if any, instructions as to the details or methods of the work.
- Employees are often trained by a more experienced employee or are required to attend meetings or take training courses.
- An Independent Contractor uses his or her own methods and thus need not receive training from the purchaser of those services.
- Services of an Employee are usually merged into the firm’s overall operation; the firm’s success depends on those Employee services.
- An Independent Contractor’s services are usually separate from the client’s business and are not integrated or merged into it.
4. SERVICES RENDERED PERSONALLY
- An Employee’s services must be rendered personally; Employees do not hire their own substitutes or delegate work to them.
- A true Independent Contractor is able to assign another to do the job in his or her place and need not perform services personally.
5. HIRING, SUPERVISING & PAYING HELPERS
- An Employee may act as a foreman for the employer but, if so, helpers are paid with the employer’s funds.
- Independent Contractors select, hire, pay, and supervise any helpers used and are responsible for the results of the helpers’ labor.
6. CONTINUING RELATIONSHIP
- An Employee often continues to work for the same employer month after month or year after year.
- An Independent Contractor is usually hired to do one job of limited or indefinite duration and has no expectation of continuing work.
7. SET HOURS OF WORK
- An Employee may work “on call” or during hours and days as set by the employer.
- A true Independent Contractor is the master of his or her own time and works the days and hours he or she chooses.
8. FULL TIME REQUIRED
- An Employee ordinarily devotes full-time service to the employer, or the employer may have a priority on the Employee’s time.
- A true Independent Contractor cannot be required to devote full-time service to one firm exclusively.
9. LOCATION WHERE SERVICES PERFORMED
- Employment is indicated if the employer has the right to mandate where services are performed.
- Independent Contractors ordinarily work where they choose. The workplace may be away from the client’s premises.
10. ORDER OR SEQUENCE SET
- An Employee performs services in the order or sequence set by the employer. This shows control by the employer.
- A true Independent Contractor is concerned only with the finished product and sets his or her own order or sequence of work.
11. ORAL OR WRITTEN REPORT
- An Employee may be required to submit regular oral or written reports about the work in progress.
- An Independent Contractor is usually not required to submit regular oral or written reports about the work in progress.
12. PAYMENT BY THE HOUR, WEEK OR MONTH
- An Employee is typically paid by the employer in regular amounts at stated intervals, such as by the hour or week.
- An Independent Contractor is normally paid by the job, either a negotiated flat rate or upon submission of a bid.
13. PAYMENT OF BUSINESS & TRAVEL EQUIPMENT
- An Employee’s business and travel expenses are either paid directly or reimbursed by the employer.
- Independent Contractors normally pay all of their own business and travel expenses without reimbursement.
14. FURNISHING TOOLS & EQUIPMENT
- Employees are furnished all necessary tools, materials, and equipment by their employer.
- An Independent Contractor ordinarily provides all of the tools and equipment necessary to complete the job.
15. SIGNIFICANT INVESTMENT
- An Employee generally has little or no investment in the business. Instead, an Employee is economically dependent on the employer.
- True Independent Contractors usually have a substantial financial investment in their independent business.
16. REALIZE PROFIT OR LOSS
- An Employee does not ordinarily realize a profit or loss in the business. Rather, Employees are paid for services rendered.
- An Independent Contractor can either realize a profit or suffer a loss depending on the management of expenses and revenues.
17. WORKING FOR MORE THAN ONE FIRM AT A TIME
- An Employee ordinarily works for one employer at a time and may be prohibited from joining a competitor.
- An Independent Contractor often works for more than one client or firm at the same time and is not subject to a noncompetition rule.
18. MAKING SERVICE AVAILABLE TO THE PUBLIC
- An Employee does not make his or her services available to the public except through the employer’s company.
- An Independent Contractor may advertise, carry business cards, hang out a shingle, or hold a separate business license.
19. RIGHT TO DISCHARGE WITHOUT LIABILITY
- An Employee can be discharged at any time without liability on the employer’s part.
- If the work meets the contract terms, an Independent Contractor cannot be fired without liability for breach of contract.
20. RIGHT TO QUIT WITHOUT LIABILITY
- An Employee may quit work at any time without liability on the Employee’s part.
- An Independent Contractor is legally responsible for job completion and, upon quitting, becomes liable for breach of contract.
In Summary: “Red Light, Green Light, 1, 2, 3,”is a fun game, for kids. But for adults conducting business and faced with employment and human resource issues, beware. Know the facts. And proceed with caution. It is no fun being audited or sued.
This blog is prepared by San Francisco attorney Joel H. Siegal. Mr. Siegal’s primary practice is representing individuals in personal injury cases, and also represents employees and small businesses in labor matters. To learn more about Joel and his practice, please visit www.LitigateForJustice.com