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FEAR OF PETITIONING
Ever since the Supreme Court ruled it improper to prohibit payment to people for gathering signatures on initiatives and referendums, countless citizens have earned extra cash by circulating petitions ["Out of Circulation?" WW, Dec. 10, 1997]. Sponsors of the petitions often compensate circulators as "independent contractors," those who willingly work for payment-by-the-signature. Now, as you reported, comes the Oregon Employment Department, which ruled that people who are compensated for signature gathering must be treated as "employees" rather than independent contractors. This is more than a fatuous decision by some overweening bureaucrats. It's really a disguised attack on the petition process by the state and OED's tax section manager, Donna Hunter, no doubt cheered on by Phil Keisling. Their ruling is intended to burden petition sponsors with extra costs, including the requirement that circulators are entitled to unemployment benefits after a campaign. Of course, the gracious Ms. Hunter did allow that she may not have to enforce the ruling: "If you find your circulators through a Yellow Pages ad, and they have their own business cards...you're probably all right." If that's Donna's standard, then she should next go after Safeway and Fred Meyer. Think of it, these employers are brazenly paying hundreds of people, who are not listed in the Yellow Pages, for each bottle and can collected! In CASH! If these people did not pay the original bottle deposit, then the cash received is taxable income. Based on her interpretation of employee vs. independent contractor, then she must find that these people are employees of the grocery stores. (That is, unless they can produce a business card to show that they are "in the business.") Heck, they should even be allowed to demand minimum wage. For example, whenever a five-hour dumpster-diving foray nets only a couple of bottles, shouldn't that person be compensated for his or her time? That question begs the real question: "Why are our Salem autocrats so afraid of the petition process?" Paul Bleeg, Northeast 37th Avenue
CRYING WOLF
Josh Feit's "Stop Your Sobbing" article in the Dec. 10, 1997, issue makes for interesting reading. However, the article leaves the impression that the pain and cost being inflicted on employers by virtue of the new discrimination laws is insignificant when compared to the benefits that have accrued to the employees since 1991. This simply is incorrect. First, a significant portion of these discrimination lawsuits are dismissed at the summary judgment level and never make it through to a trial. By their very nature, many of these cases are weak, frivolous or fraudulent and should never have been filed in the first place. (Had Mr. Feit interviewed Oregon's federal judiciary, he would have heard about many of the weak and frivolous discrimination cases that are simply overwhelming the federal courts nationally.) Nonetheless, employers, some of whom are small and have no insurance to defend these charges, are forced to pay upwards of $30,000 or $40,000 simply to have a judge tell the employee that "you have no case." Where is the fairness here? Second, over the past four years, federal courts of appeals have decided 261 disability-related discrimination cases, according to the latest issue of the National Disability Law Reporter; yet employees have only prevailed on 20 percent of the cases. Employers prevailed in 209 cases! While it may be of some consolation for employers to know that the judiciary is siding with them in four out of five cases, the employers are still forced to pay huge legal fees, with no contribution or offset from the losing employee. Is this fair? Overall, what this all boils down to is the fact that employers and employees are not playing on a level playing field. Employees are allowed to sue employers for virtually any grievance at the workplace with little or no risk of being held financially responsible for the ramifications of the lawsuit. Plaintiff attorneys take these cases on a contingent fee and rarely, if ever, pass the risk of financial loss on [to] the client. The same is not true for the employer, who must spend hundreds of hours investigating and defending the claim, and who must also either pay for insurance or pay thousands of dollars in legal defense costs with no hope of obtaining financial redress if the claim is shown to be meritless, frivolous or incapable of passing muster at summary judgment. Plaintiffs' lawyers respond: "Ask for sanctions if the case is frivolous." Absurd, I say. In some 2,000 disability-related cases that have been litigated over the past few years, sanctions were only ordered by the judge in a mere handful of cases. Sanctions are a mirage and afford no effective relief to employers. Let's "level the playing field" a little bit. Let's impose some risk on employees who choose to bring non-meritorious lawsuits. Let's start by adopting a law that requires employees to post a bond and/or pay a percentage of the employer's fees/costs if the claim can't get by summary judgment. If anyone is sitting around wondering why there has been such an explosion of "temporary worker" employment agencies around this country over the past five years, they need look no further than the "chill" that the discrimination litigation has put over the entire employment sector. E. Kimbark MacColl Jr., Southwest Columbia Street
TO EACH HIS OWN
Josh Feit supports the protection of Melanie Casebolt's religious freedom in the concluding paragraph of "Mark of the Devil" (WW, Dec. 23, 1997) on the grounds that her religious "beliefs aren't harmful to those around her and that she is paying taxes and Social Security." Casebolt's beliefs are not the issue here; she is free to believe whatever she wishes. But when she challenges the belief-action distinction and acts according to her beliefs in such a way that violates federal law then her actions, not her beliefs, are harmful. Feit is right; "those around her" aren't subjected to harm. Rather, it is the neutrality of the law that becomes damaged in her refusal to comply with a federal mandate. Freedom to exercise religious beliefs [is] only granted when 1) there is no law in question (Board of Education vs. Barnette, 1943, school children are exempt from saluting the flag because it is not a legal duty) and 2) the neutrality of the law unduly burdens the free exercise of religion (Wisconsin vs. Yoder, 1972). For Casebolt, the law is neutral and Chief Justice Waite's ruling in the 1878 case of Reynolds vs. United States is just as plausible today: "To permit [the refusal of having a Social Security card in the face of a Social Security law] would be to make the professed doctrines of religious beliefs superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Ben Seigel, Southeast Morrison Street |
