How the Boycott Divestment and Sanctions Movement (BDS) Exposes Universities to Title VI and Trustee Liability.

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.

  1. 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.
  2. 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

Employers and Managers: Red Light or Green Light?

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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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.


  • 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

Sports Injuries – How to defeat a waiver of liability.

Most of my clients love to participate in sports. Some are weekend golfers, tennis players, horse back riders, skiers, bicyclist, runners, hunters, backpackers. Others participate in organized leagues of basketball, baseball or football. Regardless of the sport, most of us love to be active and compete! Personally, I love that adrenaline high that comes with athletic activity.

Have you noticed that more and more often these days, when you participate in an event, you are asked to sign a document often entitled “waiver of liability.” Why does the organizer of the event or activity ask you to sign such a document? Chances are, they are doing it at the instruction or suggestion of their insurance company or of the suggestion of a business organization.

sports injury photo

Two questions that I am often asked by clients is, 1) Am I required to sign such a waiver in order to participate in the activity? and 2) What if anything is the affect of my signing the waiver?

Let’s start the discussion with some simple definitions. A waiver of liability is a document that attempts to relieve an organization or person of liability or responsibility for another person’s injury. In theory, a waiver of liability will preclude injured parties from collecting damages for medical expenses, wage losses, and pain and suffering for injuries that they have sustained. For example if you participate in a bicycle race, you may be asked to sign a waiver of liability against the organizers of the race for injuries that you sustain during the race.

So let me do my best to answer the posed questions. First, should you sign the waiver. If you are able to participate in the event without signing the waiver, by all means, I suggest that option. If the organizers or owners require your signature before participation and you want to participate, I suppose you will need to sign the document. However, if an injury occurs, don’t think that the waiver is an iron-clad defense in your being able to recover damages for your medical bills, lost wages and pain and suffering due to someone else’s negligence.

Let me give you an example of a recent case that I handled. My client was a participant in “dressage”, i.e., horse jumping. Having grown up in Brooklyn, New York, I do not know a lot about horse jumping. But having read about Christopher Reaves (aka Superman) and his terrible horse-jumping accident that caused paralysis, I can imagine that being on the back of a horse jumping over fences has some inherent risk.

My client suffered serious personal injury when the horse that she was on fell on top of her. As I interviewed her at our first meeting in her hospital room, I asked her how the accident occurred. She told me that she wasn’t exactly sure but she was unable to control the horse. In that meeting I learned an interesting fact which helped us defeat the waiver and win the case. The waiver was clear and was one of the most comprehensive that I have seen in my thirty-plus years legal career. It acknowledged that dressage (i.e., horse-jumping) is a dangerous sport and that the stable would under no circumstances be responsible for injury as a result of participating in that sport.

But as I filed a law suit on behalf of my client I had a strategy which I knew would defeat the waiver. The facts of the case revealed that the stable had been notified that a neighbor was doing recycling on certain days. We tracked down the facts and found that the recycling occurred on the very day of the accident. What happens on recycling day? Well, there is often the sound of crashing bottles. That is what happened on the day of the accident. The crashing bottles had spooked the horses and caused the fall. The waiver was therefore deemed useless, and I was able to assist my client in recovering significant damages to cover her medical bills, lost wages and money for her pain and suffering.

Whether a waiver of liability is an iron-clad document, or not even worth the paper it is written on, depends on the facts. That said, go out and enjoy sports!

Nursing Home Liability

Many years ago when my father was in his late eighties and suffering from advanced Parkinson’s disease, my mother confided in her children, myself included, that she was no longer able to care for my dad at home. She asked us for permission to have Dad sent to a nursing home. Neither my brothers nor I felt we had the power to say no to my Mom since we no longer lived at home.

And so began the task that many of my generation are now facing, we searched to find an appropriate nursing home for a parent. However, in our case, the old expression “while man plans God laughs” came to bear. On the first weekend we explored nursing home options, our Dad passed away quietly in his own bed, surrounded by his wife and four sons.

Despite missing my dad and feeling terrible about his death, I felt blessed about the manner of his death. Let’s face it, many people do end up spending months or years in nursing homes. The type of these facilities span a broad spectrum. Some of the ones I have visited resembled exclusive resorts, while others fell far short of those standards.

I am often called by relatives about a family member who has suffered serious personal injury or an untimely death at a nursing home. Those of us who do this sort of litigation know there is a body of federal regulations – the Omnibus Budget Reconciliation Act of 1987 (OBRA) – and substantial case law and literature establishing rules and standards that nursing homes need to follow. While not determinative of liability, these standards help me determine whether the nursing home deviated (breached) standards of care, and proximately caused injury to a loved one.
Some aspects of the standard of care are outlined as follows:

Assessment: Everyone admitted or readmitted to the nursing home must undergo a thorough assessment to identify the resident’s needs and risk factors. That assesment is a document that we will obtain in the discovery phase of the case.

Planning: The assessment’s findings are used to develop a care plan specific to the resident’s needs. Again, after obtaining the assessment we can analyze whether or not the plan specifically was followed. If it was not, our case is strengthened.

Implementation: As with many plans, a plan is only useful if it is communicated to the staff and if the staff follows it. We often find that the plan, while written by administrators and initial social workers, is never communicated or implemented by the “line staff” (i.e., the staff who are involved in the day to day care of your loved one).

Reevaluation: Especially with elders, plans need to change and be reevaluated as medical conditions change. We often discover that some nursing homes sit idly by and never reevaluate patients or change treatment or care plans.

Communication: The staff and administration must be in constant communication with the nursing home resident, his/her physicians and the family, to continually evaluate needs or changing needs.

You might be surprised at the number of times we see that communication in a nursing home facility has not followed these standards of care. If you suspect there is a case of nursing home abuse, give us a call. We take abuse of elders very seriously.