Abusive Federal Agency Practices

November 19, 2014

I have been dealing with the Department of Labor, which selected an immigrant-owned small business to audit for compliance with minimum wage and overtime laws.  After the audit these unfortunate people were told that they were subject to a fine of over $100,000.  The Department of Labor refused to disclose the basis of this finding but the responsible agent did give us a brief summary of the conclusions.  Great pressure was then put on the owners to respond within a couple of days.  This of course would give no meaningful opportunity to go over the daily time records for the 16 month period of the audit, in order to verify the Department’s conclusions.

The reason for this demand of a hasty response seems to have been that the Department of Labor’s accusations and conclusions were not supported the records of the little business.  The time records, many of which the Department of Labor had not even looked at, refuted the claims against the small business.  We scoured the time records to see how they might have been interpreted to support the allegations of the Department and could not imagine how it justified its claims.

I sent a letter explaining what the time records said.  I couple of weeks later I got an email from the agent who made the assessment, saying she’d get back to me next week with a response.  That was over two months ago.  Still waiting.

At first blush it looks like the agent was trying to make her bones at the Department by abusing a vulnerable business in which the owners, because of language and culture issues, were unlikely to be able to defend themselves and might be daunted by the possibility of this the affecting their immigration status.  My guess though is that the agent was relying on accusations of disgruntled former employees, putting greater reliance on that than a careful examination of the records.

Small businesses have enough difficulties in the roiling seas of commerce without being subject to this kind of abuse.  The risks here are best limited by accurate and well organized record keeping and by having the employees sign a form at the time of their departure from the job that includes reference to such matters.

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Computing Overtime

November 17, 2014

Every business owner must be aware of the Department of Labor’s method of computing overtime.  Some businesses are paying the correct amount of money and being assessed substantial penalties.  A common example of this is an employer who employs someone six days a week.  The employer give a fixed amount for the six days.  This amount may include time and a half for the hours worked over forty hours each week.  This meets the Washington State and federal requirements for payment of overtime, but not the recordkeeping requirements of the federal enforcement agency, the Department of Labor.  The DOL will take the position that the pay check does not include overtime and treat the check as payment for six days at the regular hourly rate, then make as assessment equal to the number of overtime hours times fifty percent of the hourly rate which it has computed.  This amounts to a payment  for overtime more than twice the amount due the employee.  The DOL can assess double the amount that it deems underpaid and is authorized to recommend criminal action.

There is no legitimate argument that businesses should not be paying overtime but the means of enforcing the law creates a trap for vulnerable businesses which are paying overtime.


We’ve seen Crashes

October 23, 2008

Please forgive the sports fans in Washington State if they are less shaken by recent Wall Street events than people elsewhere.  This is the epi-center of disaster as announced by Mount St. Helens twenty some years ago.  The only good news a sports fan has had in the men’s sport arena is that Clay Bennett left town with the Sonics.  (The Seattle Storm stands alone as local fun and exciting team.)

Sports fans here are familiar with the feeling of the bottom dropping out of things.  The way we look at it the stock market still has 60% of its former value, what’s to complain about? That’s not a crash, more like fender bender. Heck, the Huskies football team has not won a single game since mid season last year. If you combine all of the wins of the football teams of Washington, Washington State and the Seahawks you get two, both of which occurred it seems like months ago.  That and one of those wins was against an intramural team.

In some ways the Mariner season was a foreshadowing of the Market crash.  The ownership spent extravagantly on players with no intrinsic value.  Our general manager speculated that our single power hitter, Richie Sexon, was going to come back after a miserable season to the form he showed the first year of his contract. The general manager believed that Richie’s performance continue to improve, failing to recognize that all cycles must end and Richie was closer to receiving social security than a home run crown.

Some teams have a retro game where the players wear uniforms from a by-gone age.  The Mariners had a retro season where we got to relive the pleasures of watching the team during its expansion phase.

The Mariners announced there new general manager in the newspaper today.  The announcement began with the most dreaded words in the team’s forlorn history:  “Howard Lincoln and Chuck Armstrong decided.”  I couldn’t read on.

There is a rule that a team may not make announcements during the world series.  This is viewed as a distraction from the game apparently.  There are two exceptions to the ban on announcements: (1) the league gives its approval; or (2) the announcement is not significant. It is not clear which of the two exceptions applied to the Mariner announcement. Maybe both.

This proclamation did not rate coverage by the New York Times, and you have to hunt for it on the sports web sites.  In terms of substance and understanding the reasons for the selection, these announcements are a lot like reading the transcript of a presidential debate.

Being as how this guy is from Milwaukee it’s a little like the Pilots or a small piece of them is returning to Seattle.  But who wanted the Pilots back?


McKenna’s Suits Against the Republican Party and BIAW

October 7, 2008

Yesterday’s entry about the lawsuit against the Republican Party drew a comment that warrants notice. James Tierney of Columbia Law School’s National State Attorney General Program saluted Rob McKenna’s decision to bring the lawsuit against the Republican Party. I perhaps did not call attention to my recognition of this decision as a commendable action. Earlier I praised McKenna for suing the B.I.A.W., a major Republican contributor.

Mr. Tierney says that it was appropriate for the Attorney General’s office to bring the action instead of having an independent law firm pursue it. This is certainly something beyond my expertise, but the decision does at least raise a question of a conflict of interest. Given the wide ranging responsibility of the Attorney General’s Office, I am sure that this comes up with some frequency and that it has been adequately resolved in terms of professional responsibility.

My question is that given the appearance of what might commonly, not professionally, be viewed as a conflict of interest, the A.G.’s decision not to pursue immediate action, as is sought in the lawsuit by the two former state supreme court justices, is politically questionable. The citizen suit makes it appear that the A.G.’s office might be going lightly on the case by not seeking immediate remedies.

I should emphasize that there probably is a perfectly sound basis for not seeking the relief sought in the citizen’s suit. In fact the citizen’s suit asks the court for emergency permission to gather evidence so the matter can be decided shortly. The A.G.’s office may very well have determined that there was no such evidence or that the search for such evidence was inappropriate in light of the immanence of the election.

Much of this speculation, however, might have been avoided by hiring outside counsel to pursue the lawsuit. There is certainly nothing impermissible about the Attorney General’s office handling the case, but in the emotional charged context of this election, it may have been prudent to avoid the faintest question about the role of politics in the decisions regarding the litigation.


Washington Republicans in Legal Quagmire

October 6, 2008

The plot thickens. Last week I discussed the Public Disclosure Commission’s decision that the Washington State Republican Party was illegally financing attack ads against Christine Gregoire. The P.I. last week reported that there was evidence that Dino Rossi was complicit in this endeavor. The finding about the Republican Party was handed by the Public Disclosure Commission to the Republican State Attorney General for enforcement procedures. At the end of the week nothing had been done, at least as far a I could tell.

I also reported earlier last month that the Attorney General had refused requests that he recuse himself, and had filed a lawsuit against B.I.A.W., the notorious Republican attack machine, for violating campaign financing laws. I provided a copy of the Attorney General’s complaint which by its terms would not even require a hearing until long after the election.

Apparently a couple of citizens had had enough of political games involving illegal campaign practices. These two citizens happened to be retired state Supreme Court justices, Utter and Ireland. They filed a lawsuit against the B.I.A.W. that required immediate action instead of waiting until after the election.

The lawsuit calls for an immediate temporary restraining order prohibiting B.I.A.W. from further campaign activity and mandates court hearings in a couple of weeks. The complaint alleges that, counting all the illegal campaign funds, the B.I.A.W. has already exceeded lawful financing limits.

The lawsuit filed today is an extraordinary move, apparently necessitated by the Attorney General’s refusal to take any immediate action. The suit is actually filed by citizens on the Attorney General’s behalf, something that is rarely done and ordinarily would not be done unless the Attorney General refused to, or could not, perform a duty of his office, i.e. the enforcement of campaign financing laws.

But the story does not end there. Today the Attorney General announced that on Friday he had sued the Republican Party for campaign violations. The complaint, which was rather brief, by its terms sought no pre-election relief with the trial set in 2010.

This whole series of events reflects poorly on the Attorney General’s Office and if it turns out that the citizen suit is meritorious, the Attorney General’s Office will look very bad indeed. The fact of the suit suggests a lack of confidence in Republican Rob McKenna’s nonpartisanship.


Twyla Tharp

October 4, 2008

I attend dance performances about as frequently as I go to roller derby.  Last night I attended the Twyla Tharp performance at Pacific Northwest Ballet with some friends who truly enjoy dance and would attend dance performances as frequently as I go to Mariners games if the opportunity were here.

I was prepared to have a nice evening, but was nearly awestruck by the performance of the three Tharp pieces, two of which were world premiers and the third a familiar favorite to dance buffs.  Each piece was a highly evocative fusion of elements, some of which were even discernible by me, seamlessly blended to create in me a sense of anticipation throughout the performance.  Elegant balletic movement, folk dance, Chaplinesque  near slapstick,  ballroom dance, gymnastic athleticism, sweeping Romantic gesture, then the abject collapse of all movement.  Not only were all these dance and movement elements merged into the work but the pieces themselves seemed a blend of dance and theater, silent movies, and the images of memory and imagination.

I won’t stray too far into a territory unknown to me.  But great art awakens something in the viewer, an awareness of the richness and possibility of life.  I had that kind of aesthetic experience last night.

Of the three pieces, I was most drawn to the second, called “Afternoon Ball.”  Before I get into that I should say that the first piece was performed to a Brahms quartet, Opus 111. I was struck by the synchrony between the movement and the music, each accenting and complimenting the other.  It was easy to imagine the dancers as the imaginary figures you sometimes see when you close your eyes to listen to music.  The dark underlayment of Brahms contributed to a sense of profundity.

The music for the second piece, the one that particularly struck me, was  composed by a contemporary Russian, Vladimir Martynov, “Autumn Ball of the Elves” (1994).  The first movement was the stark minimalist sound that for me might accompany work by Beckett.   The music builds to attain in the later stages of the work almost an echo of the Brahms piece.

In a very interesting, but slow starting, interview by an overwhelmed reporter from the Stranger Tharp called the piece “existentialist theater . . . the end of the world.”  It conveys a sense of alienation and despair but at its conclusion a brief but strong sense of hope or redemption.  I think this piece resonated for me because I’ve recently been preoccupied with King Lear, the utterly nihilistic work that according to Harold Bloom marked the beginning of western consciousness.

That Stranger interview is one in which you vividly feel the interviewer’s pain and discomfort, as Tharp protects her private mental and emotional life from intrusion.  The interviewer is not prepared to discuss with her her work, so is forced to ask rather broad questions and virtually begs her to jump in and participate, which she grudgingly does.

Toward the end she comments that the decline of art critics in the published media is a very good thing.  She views critics, not as intermediaries promoting quality art to the population, but as obstacles between the artist and the audience.

She then starts interviewing the interviewer and asks him why he does it.  He responds by saying that there is something profound in art that makes it the province of philosophers, citing Aristotle, Nietzsche and Heidegger, among others.  Tharp then says that she thinks of her work as pre-Socratic.  After some brief discussion back and forth she says “turn that thing off so we can have a serious talk” and the tape is instantly over.

Tharp thinking of herself as pre-Socratic fascinates me.  (What I would give to have heard the ensuing talk.)  She likes to think of herself as coming form a time before Plato had inflicted a sense of rigid and perfect system of ideal “things,” which became the gnostic notion that the ideal, true reality, is someplace else and our lives a spent with shadows within a cave.  Aristotle of course was able to lay a rigid system of taxonomy and categorization on this dim world of shadows so that everything had a place.  Then he imposed a system of logic to enable us to trudge among the categories.  Tharp sees herself as before all that when the world was full of mystery, explained by myth and metaphor.


Selling Short: What You Need to Know

September 10, 2008

A “short sale” in Washington State real estate agent parlance is selling during the pendency of a foreclosure. It involves convincing the foreclosing lender to accept less than the full amount owed.

One of the things to watch out for here is a fairly subtle manipulation by the real estate agent to profit by the situation. The case I’m familiar with involved a home owned by a very unsophisticated woman. The real estate agent disclosed that a relation was the buyer and that the sale was “a short sale.” The owner did not understand what this meant and signed the papers offered to her, again relying on her agent and not understanding the terminology of the contract.

She was next told to come down to sign the papers for closing and that there would be no money for her. When she objected, the agent gave her verbal promises that she would receive three thousand dollars after closing but declined to put it in writing.

It turns out that she would have received over ten thousand dollars except that the addenda to the contract provided that she would pay all the buyers’ costs of the loan and settlement charges. It also provided that almost $6000 would go to the Nehemiah Down Payment Assistance Program, which according to the closing agent is a program to refund the buyer’s down payment.

This lady had no understanding that, while she got the price she wanted, over ten thousand dollars of the money was going directly for the buyer’s benefit.

In this way the buyer gets the home for absolutely no money out of pocket and the owner gets nothing. The real estate agent gets the commission. The buyer though is left in the same position as if there had been a foreclosure, except that her credit report will contain reference to a “short sale” rather than foreclosure. What the seller has lost is time that might have been spent trying to make a sale that would give the buyer some money to at least move.