Wednesday, July 21, 2010

The Shirley Sherrod Mess

There are many lessons to be learned from the Shirley Sherrod mess. Among these might be that we are indeed a "nation of cowards" when it comes to talking about race, as Attorney General Holder has said; that the right-wing bloggers have become even more hateful and despicable than ever, in posting an edited video which purports to show just the opposite of what Ms. Sherrod was actually saying; that FOX news is even more despicable than we thought, in disseminating the false video and calling for Ms. Sherrod's resignation or firing; that this then piggbybacks to the Obama administration and the NAACP in jumping on this phony bandwagon and castigating her, when the facts were easily ascertainable and showed just the opposite--that she was describing how it is poor people who need help, not just Blacks.

But, having just watched the Secretary of Agriculture two hours ago giving an abject apology for firing her without learning all the facts, I have to comment on this aspect of it, since I have special expertise here by virtue of doing literally hundreds of unemployment compensation hearings in my law practice. The issue in these hearings was always why the "separation from employment" occurred. That is, if it was a discharge, why was the emploiee discharged; if it was a quit, why did the employee quit. In the instance of a discharge, as we have here (quitting under threat of being fired is the same legally as a discharge), the issue was always, why was the employee fired? If because of misconduct connected with the work, then the employee does not get the benefits, and the employers account does not get charged.

I have seen many instances of employers messing up in the way a discharge is handled, as the Ag Sec did here. The one which sticks in my mind is that a nursing supervisor in a care home heard that a nurse's aide had slammed the door to a resident's room and left in anger, which is considered resident abuse and clearly misconduct. What the suprevisor did is call the aide into her office, and as she entered simply said, "You're outta here."

Well, at the hearing the aide denied slamming the door and presented a completely different picture of things. The employer witness who was there did not even back up the version which had reached the supervisor. The coup de grace for the employer's case was that the door had the standard gadget on it preventing it from being slammed, so it was not even possible it happened as reported.

The lessen here is that an employer should never act precipitously, as the Ag sec did. It costs nothing to first get the facts, deliberate on them, and then act. In my case, the supervisor should have asked the aide what happend and gotten her version of events. If the two versions differed, then other witnesses could be talked to and a proper investigation undertaken before any firing decision was made.

The larger lessen here is the proper relationship between an employer and employee. There has been, since the '60's, a lot of management training info about communication being a two-way street, about open-door policies by employers, about "theory X vs. theory Y", and so on. A lot of this has been talk and not much else. When I started at a law firm my boss said if I ever had a problem just come talk to him, his door was always open and he would help. When I did seek his help some months into my tenure, he said he didn't have time to deal with it and I should carry on the best I could. So much for the "open door policy". I think in many cases the open door policy is not a reality.

But I think the best approach goes further than just an open-door policy. The best employer develops a solid relationship with employees, in other words, is proactive in taking steps to develop a rapport. I think of Attorsney-General Robert F. Kennedy, who would pop into offices in the Justice Department and ask the person what he/she was working on. This sort of taking an interest in your people can't help but lead to an important rapport. And if you have this sort of rapport, how would you ever fire them based on some hearsay account of something they supposedly did? It would be inconceivable. Of course you would immediately get with your person and discuss it, ask for their version. The Ag Sec did not do this, to his eternal discredit, but he has acknowledged his mistake and I think he will be allowed to move on with the important business of his department.

Tuesday, July 20, 2010

Kagan Surmounts First Hurdle, or, A Tale of Two Lindsa(e)ys

I just found out from that Elena Kagan's confirmation vote in the Senate Judiciary Committee was 13-6 to confirm. All Democrats voted for her, and all Republicans against except for Lindsey Graham, who gave a passionate speech outlining reasons to vote yea and nay and concluded that she was qualified and that Obama has the right as the election winner to have his own nominee confirmed.

I was following this at the library on scotusblog this morning as they had a running account. I then went back to my apartment to watch the hearing live on TV. Much to my chagrin it was not on C-SPAN (apparently it was on C-SPAN2 which I don't get). So I turned to the other cable news channels, feeling certain one would have the hearings. You'll never guess what they had rather than the hearings. Give up? It was Lindsay Lohan being taken into custody to do her 90-day sentence for violating her probation! Nothing about the Judiciary Committee hearings, not even on NPR. So, I'm back at the library, even more depressed than ever at the quality of American "journalism".

The Kansas Senate Race

National attention has been focused recently on the race for the Republican nomination for the Kansas Senate seat being vacated by Sam Brownback. C-SPAN carried a debate between the contestants, Representatives Todd Tiahrt and Jerry Moran, and CNN also has spotlighted the race.

This race illustrates just how low politics in this coutnry can sink. Each of the two candidates is doing nothing but trying to argue he is more conservative than his rival. And it is not true conservatism they are speaking of, but the anti-tax, anti-immigrant garbage which passes for conservatism these days. Tiahrt's latest attack ad accuses Moran of voting "to provide taxpayer-funded health care coverage for illegal immigrants", because he supported a children's health bill! This is the sort of nonsense Kansas votes have had to listen to. The story is at

This business of taking a few votes and damning your opponent for it is what ousted Senator Bob Bennett from the primary for his Utah Senate seat. He was damned for reaching across the aisle and working with a Democratic Senator on a piece of legislation. This should be what we want our elected officials to do, but in the eyes of the ultra right-wing tea party folks this is a no-no. As a result, the Republicans have lost a long-time Senator who was one of the good guys.

The irony of the Kansas race is that both candidates are conservatives, and this splitting of hairs is just ludicrous. In the debate all either one did was make accusations that his opponent wasn't conservative enough, and each talked about specific votes--who voted to raise taxes most often, etc. Neither presented any sort of vision of where he wanted his country or his party to go in the future.

Baseball Is Baseball Again

A recent item in the paper about the Cincinnati Reds caught my eye. The story said the Reds led the league in going first to third, referring to a runner on first getting to third on a single to the outfield, rather than stopping at second. This is something the Reds pride themselves on doing, and it illustrates just how far baseball has come in getting past the steroids era.

In the steroids era baseball became too much like a slow pitch softball game, with runners waiting on bases for a batter to hit a home run, and everybody trying to hit a home run every time at bat. It was very dull and uninteresting, and so much of the beauty of the game was lost in the process.

Sunday there were two inside-the-park home runs, and listening to the excitement of the announcers it was obvious this was much more exciting than a blast over the fence. Another recent morsel was David Ortiz getting thrown out in the 9th inning of the All-Star game, thereby virtually ruining the AL's chance to come back agint the NL. A single to the right fielder was fielded and Ortiz was forced at second by the right fielder! Ortiz had to wait to see if the ball would be caught, and he just didn't have the speed to get to the base after that. The AL manager would, of course, have liked to have pinch run for him, but the only position player left on the bench had to be kept back in case he was needed in the field. (The All-Star game does count these days, as we are continually reminded, but the managers still manage too much like they are trying to get everybody into the game instead of to win.) Again, this example shows the importance of speed.

The stats are quite clear on home runs. The last two years in the American League the home run leader has had less than 40. The last time this happened in the AL was 1982-83. In the interim period Babe Ruth's long-standing standard of 60 was exceeded six times--three times by Sosa, twice by McGwire, and once by Bonds. To put it another way, prior to 1995 a player had hit 50 homers in a season only 16 times. From 1995 on, this has happened 25 times. Thankfully, we seem to be getting back to baseball as it's meant to be played and enjoyed.

Wednesday, July 7, 2010

Finally A Real Conservative

The 4th of July holiday was hot, but the morning paper contained a breath of fresh air. A column on our eroding freedoms was actually written by a real conservative! What a welcome development to find one, after these past decades of listening to the right-wing crap that passes for conservatism these days.

His name is Thomas J. Lucente, Jr., and here are some of his observations: 1) We are waging illegal wars around the globe and here at home; 2) The greatest threat to our national security today is not terrorism, Islamic extremism or some other nation. The greatest security threat is our national debt; 3) The Congress, in cahoots with the Supreme Court, have destroyed the idea of federalism and states' rights by reinterpreting the Constitution in such a fashion that gives the federal government unlimited power; 4) Perhaps more than any other sign of the decay of American liberty is the fact that the United States imprisons a larger percentage of its population than any other country in the world. Nearly 1 percent of the American population is in a prison or jail; 5) Beyond that, the government has imprisoned hundreds, possibly thousands, of people here and abroad without criminal charges being filed. You can find these prisoners in immigration jails and our concentration camp in Cuba.

Kudos to Mr. Lucente!