Thoughtcrimes Now in Vogue at Air Force?

Here's a strange and disturbing story out of the Air Force Academy. It seems that in an effort to police what it believes are incidents of bullying, disinformation, or extremist commentary the AF leadership has set up a social media monitoring mechanism that reviews the personal, off-duty activities of cadets in places like Instagram, TikTok, Facebook, X and the like. 

Now, military members have significantly fewer protections under the Constitution than civilians. This has been clear since the founding of the Republic. Service members are prohibited by law from openly criticizing certain elected officials, for example. But airmen, soldiers and sailors don't forfeit all of their constitutional rights, and the open-ended nature of this monitoring program sounds a clear signal that Academy officials are not interested in just correcting incidents of illegality that might be revealed on social media. Those officials are interested in discovering people who have improper thoughts about, well, who knows? The originator and overseer of the project is quoted as saying, "The goal of monitoring social media is to educate cadets, prevent them from spreading harmful material online and respond when someone is posting content that academy leaders consider harmful to the base’s culture."  

Well. Nothing overreaching or potentially problematic about that. The Air Force cadet squadrons already contain what most of us familiar with the program refer to as political officers- cadets who have been stewed in the military's version of  DEI - to report their wrong-thinking peers for reeduca-, uh, counseling when they express opinions inconsistent with DEI theology. It's not much of an intellectual leap to see how monitoring off-duty and private social communications can greatly assist in ferreting out wrongthink.  

As you can see from the article, several constitutional and privacy law specialists who are real lawyers are raising 4th Amendment questions about this program. My hope is that the monitoring system gets cut before it provides Academy officials with information that their DEI programs aren't being taken seriously by the cadets. If that happens, the program will expand dramatically unless it's curtailed by legal challenge. 

COVID Vaccine Aviation Cases Continue to Lose

One of the major disappointments among the many arising out of the COVID vaccine mandates was the almost complete failure of the US legal system to adequately respond to this unprecedented breach of employment law. There were a couple of big wins- Biden was unable to force virtually the entire US workforce into getting a shot with an unlicensed vaccine against its will, for example- but for the most part employer vaccine mandates have been approved by state and federal courts. This notwithstanding the fact that almost every one of the mandates, and the questions being asked leading up to the mandates, were a clear violation of the Americans with Disabilities Act ("ADA") and Title VII in cases where religious exemptions were in play. 

Examples include cases involving pilots for United Airlines (the only airline that actually terminated employees for refusing to get vaccinated) and Kalitta Air, a cargo carrier. In both cases, pilots who refused the vaccine on religious grounds had their claims disposed of on procedural grounds before any meaningful litigation could take place. 

The story of COVID vaccine employer mandates is one that needs to be explored in much greater detail. Here's my summarized take: The US set up a legal regime under the ADA specifically designed to prevent precisely what happened with the COVID vaccine mandates, namely, a presumption by employers that their employees were disabled because they were contagious, accompanied by unauthorized inquiries into the vaccination status of the workforce. Because no judge wanted to be the one who authorized a shutdown of vaccine mandates in the face of a supposedly terrifying epidemic, these legal issues went basically unexamined. The irony, of course, is that as we learn more about the nature of the disease and the vaccine development itself, there is less reason to support these mandates. I'll hope at some point this story gets the coverage it deserves. 

The Next ERISA Litigation Frontier--Drug Plans and Fiduciary Duty

The Employee Retirement Income Security Act, better known as ERISA, was enacted to provide protections for employee benefit plans that companies were setting up as inducements for hiring and employee retention.  ERISA's requirements are highly technical and involved, part of ERISA's protection scheme against nefarious employers and plan administrators who just don't seem to be able to keep their mitts off the significant amounts of money controlled in these benefit plans. 

As an employment lawyer, my perception of ERISA is that it is a never-ending source of plaintiff's litigation as plan administrators seem to make one misstep after another in handling employee investments and returns. The latest round of endless ERISA litigation involves drug plans and the entities set up by employer health insurance plans to monitor drug costs. Most of this litigation involves an alleged failure by the plan administrators to ensure that drugs covered by employer health insurance plans are the cheapest, most effective, and most readily available. There's a very detailed and boring description of the litigation here-- it looks like the plaintiff's bar has discovered another relatively untapped source of money to exploit with huge class action claims. 

As with most litigation claims under the statute, this new variety should serve as a warning that employers cannot simply dump responsibility for the management of their benefit plans - health, retirement, etc. - to third parties without some type of oversight. Remember, the statute does not require that everything be done on the lowest cost basis, but rather that plan decisions are based on rational and justifiable reasons. It wouldn't hurt to sit down with plan administrators annually and get an explanation for the decisions they are making on your retirement and health insurance programs. 

IDF Pictures and Free Speech in Illinois

One of the first issues I ever dealt with as an employment lawyer involved a personal photograph in a private office. A manager had a picture of his wife in a very skimpy bathing suit displayed on his desk. My recollection is that this was an 8 by 10 photo, large enough for the details to be obvious to anyone who stuck their head in the door. There were the usual complaints from several women in the office who objected to having to look at a mostly uncovered female form every time they had business with this manager. 

We dealt with the problem by telling the manager that the company really didn't want pictures of scantily clad women prominently displayed in the office as a matter of professionalism. That seemed to quell the issue. 

The latest round in the office photo wars is taking place in Illinois, where a female public defender prominently displayed a picture of herself holding an M16 in front of the Israeli flag, taken when she was serving as a volunteer reservist in the Israeli army. 

Apparently, the picture had been in her personal office for some time but after the events of October 7, 2023, she moved the photo to a public area where people in the office displayed personal photos and awards. This drew an immediate and ignorant response from office management who were offended by the Israeli flag as much as they were by the automatic rifle. They initially ordered her to remove the photo from the public display, and then without permission entered her office and removed the photo from there. All of this was done under the guise of some kind of anti-violence policy because the photo could be perceived as “threatening.” Or perhaps it was the Star of David. As is typical with these decisions, the actual rationale gets murkier when people are asked to explain it. 

Because this involves a public employee, the 1st Amendment is implicated, and the lawsuit the former soldier filed reflects this. But for private sector employers, there are additional issues immediately apparent, starting with the potential religious discrimination issue, as well as potential claims involving political discrimination under Illinois law.  I also suspect that there were lots of other potentially objectionable photos on display in that office that were not singled out for attention and didn't happen to involve Jewish artifacts.  

This is a lousy situation for an office that likely has some exposure.  Based on the allegations in the Complaint, I'm hoping that the case doesn't go away and that all of the biases get revealed over the course of discovery.

The Song Remains the Same-SCOTUS Decision Reminds Employers to Keep Better Records

 

A fundamental piece of advice that I give to my clients is to, “keep sufficient documentary records of an employment decision so that we can recreate the analysis that led to the decision several years later.”  In virtually every employment case that ends up in some kind of agency or court setting, the key to prevailing is the ability to convincingly show what transpired between employer and employee that led to the decision at issue. 

This is always crucial in discrimination cases where an employer is usually aware of the employee's protected factor (you can't credibly testify that you didn't know you were dealing with a black female, or a Hispanic male, for example) and is asked to demonstrate that the protected factor did not play a role in the ultimate decision. 

This type of analysis is also crucial in retaliation claims, where the employer has to argue, for example,  that it wasn't the fact that the employee was a gadfly/whistleblower but rather it was her poor performance that caused the company to fire her. Again, an employer must keep solid records of its thought process and the basis for termination, because while most jurors might have difficulty believing that race was a factor in an employment decision, very few of them will have difficulty believing that the company was motivated to strike back at an employee who was causing significant cost and or embarrassment by outing some problematic business practice. 

The Sarbanes-Oxley Act was designed to provide significant whistleblower protections for employees of publicly traded companies to report corporate fraud or securities violations. The SCOTUS recently handed down a decision that should provide plenty of incentive for employers terminating whistleblowers to make sure that they can demonstrate that they are cleaner than Caesar's wife's hound's tooth. 

Sorry for the mixed metaphor but you get the picture. 

The SCOTUS reversed a Second Circuit finding that the SOX Act required an employee to show so-called “retaliatory intent” on the part of an employer to sustain a SOX violation. Instead, SCOTUS unanimously held that all a whistleblower has to show is that the protected activity- in this case, a claim that supervisors at UBS Securities were attempting to pressure an employee to alter his independent reporting- was a contributing factor to the employer's adverse personnel action. In essence, SCOTUS stated that if the employer was aware of the whistleblowing activity, it would have to produce convincing evidence that it would have made the same decision absent its knowledge that the affected employee was a rat, er, whistleblower, to escape liability. 

As noted above, this is a very high bar for the employer. To overcome the perfectly understandable inference that an aggrieved employer would act by retaliating against a problematic employee, a company is going to have to provide substantial evidence that either the aggrieved employee was already almost out the door because of her conduct and that the decision was effectively made before the company became aware of the whistleblowing, or that the conduct for which the employee was terminated was so egregious that his whistleblowing was not even a blip on the employer's radar when it made the call. 

Both of these scenarios require very credible testimony, backed up by credible documentation to show that the whistleblowing was not a factor. 

So, if you find yourself in a situation where you have identified a whistleblower in a SOX environment, your notes, memoranda, and testimony had better be recorded and validated. Otherwise, your next documentation is likely to take the form of a check to the plaintiff.  

Back to the future--Are college athletes employees? Of What, and When?

I wrote about this story back in 2014 when the NLRB first tried to shoehorn college athletes into employee status with a poorly reasoned regional attorney memo out of Chicago. The issue has arisen once again, this time at Dartmouth where an NLRB office director now claims that men's college basketball players are employees of the university. 

I won't reiterate all the arguments I made eight years ago, but the short answer is this is an idiotic characterization and completely misses the unique status that collegiate athletes have with respect to their coaches and their schools. Specifically, college coaches exercise far more control over athletes than any employer does or would ever want to. Coaches dictate what players eat, where they live, when they go to bed, when they get up, and when they do any number of activities that extend beyond basic practice time and game time. A better characterization of a coach's status then that of an employer is one of a parent. 

If the NLRB ruling survives the inevitable court challenge, it will result in massive confusion and unintended consequences in the form of things like wage and hour claims for film study, training room time, weight training, study time, and the like. A determination that these kids are actually employees would technically expand their workday to 24/7, with all the associated liability, because that's when they are under the control of their coaches and the athletic staffs. 

This determination makes no more sense now than it did eight years ago. I hope the courts will reject this director's characterization. 

Service Academy Admissions and Race: The Next Affirmative Action Challenge

In its landmark decision essentially voiding race-based affirmative action admission programs at colleges, the Supreme Court in a footnote made a notable distinction for America's service academies. The court held that its affirmative action ruling did not apply to those unique academic institutions, implying that race considerations weigh differently because of the issues involved in the construction of an effective fighting force. 

Within several months of the court's ruling, a challenge to the use of race in admissions at the United States Military Academy (West Point) emerged (the Naval Academy, USNA, is also being sued). The plaintiffs, white applicants to USMA, are alleging through their counsel that West Point's use of race as a determining factor in admissions is unconstitutional, particularly in light of the SCOTUS holding regarding Harvard and the University of North Carolina. 

The usual legal skirmishing over a preliminary injunction demand from the plaintiffs reveals at least the outlines of the arguments to be raised by USMA and the other service academies.  Fundamentally, the service academies claim that it's essential to have an officer corps that racially mirrors the overall racial percentages of the force because that makes for a more motivated and therefore more effective military. The academies claim that this claim is unassailable because US courts traditionally defer to something called "military judgment" about the management of the Armed Forces in the context of national defense. USMA also claims that race is a minimal factor in its admissions determinations, something that I think is completely incompatible with its professed goal of establishing a perfectly race-harmonized officer corps. 

There's lots more data and argument to be developed on this topic, but as a service academy graduate myself, I raise the following objections to USMA's position: 1 ) there is very little credible evidence supporting a claim that people need to be commanded by people who look like them to be effective in combat. If anything, the primary attribute service members worry about in their commanders is job competence. There's absolutely no comfort in the thought that you are going to get killed as a result of the orders from someone who shares your genetic heritage. 2 ) the service academies provide approximately 20% of the officer cadre in the military. Given that 80% of the officer candidates are coming from civilian universities through the ROTC program, you would think the “we need a racially diverse officer corps for effective command” argument would have resonated much more significantly in the SCOTUS FFFA opinion. The argument was raised but apparently found unconvincing. Why would it be more convincing for a school that provides much fewer officer candidates? 3 ) There's a very strong argument for making the service academies the producers of the top officer candidates in all services.  The government invests hundreds of thousands of dollars in USMA, USNA, and USAFA graduates, training them not just in academic specialties but military culture and warfighting skills. The goal is to produce career officers capable of performing at the very highest level in the most serious undertaking a government performs- the defense of the country. Why would you not want the very best people in these programs, regardless of their genetic propensities? 

In fact, much of the argument in favor of affirmative action for the service academies seems to be motivated by the same credential-seeking mentality present in the affirmative action movements at elite colleges, namely, that the credential somehow guarantees upward mobility into the elite classes. However, this has not been the case for the military because of its relatively ruthless performance requirements. And in any event, discounting merit in support of questionable social engineering seems a guaranteed way to degrade the value of the certificate across the board. 

This case will likely be the subject of other blog entries but, at the outset, I think USMA and the others are going to be facing an uphill push.