Tipped Workers Deserve To Be Paid Like Everyone Else

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900px-Busy_WaiterCould you live on $3.75 an hour? Would you be willing to demand that your boss pay you an additional $3.75 in tips to bring you to the state minimum wage of $7.50 an hour? What would you do if your boss didn’t make up the difference? Would you be willing to sue your employer? Could you even find an attorney who would take your case?

These are all questions that tipped workers—primarily but not only restaurant workers—already may have to face on a daily basis in Maine. And if the minimum wage in Portland goes to $10.10 an hour and the minimum tipped workers make is not increased at the same time, the questions get that much tougher for tipped workers. Would you demand that your boss pay you $6.35 per hour more?

I’ve spent a not inconsiderable amount of time these past few months working to get the minimum wage raised in Portland. I’ve met with City Councilors Hinck and Suslovic, attended several hearings that have lasted late into the evening, and carried signs calling for an increase in the minimum wage.

I’ve listened to representatives of the hospitality industry—including Steve DiMillo and Michelle Corry, both of whom own restaurants I frequent (DiMillo’s, 555, Petite Jacqueline)—testify repeatedly that their servers make $30-40 an hour and don’t need a raise. And I’ve listened to the lobbyist from the Chamber of Commerce contend that the sky is falling and don’t kill the goose that laid the golden egg.

Interestingly, there is one group that the Portland City Council really has not heard from—the workers who would be most affected by the raise in the minimum wage. Those would be the servers who work in our restaurants and diners—not just those who work in high end spots like those run by Michelle Corry, but also those who work in fast food franchises, in breakfast spots like BreaLu and (yes) Marcy’s, in the ethnic restaurants like Babylon and Seng Thai.

I am curious. Would the servers at DiMillo’s and 555 really testify that they earn $30-40 shift? Or is that only on a summer night when the restaurant is packed with tourists? What about in the dead of winter? And what would the folks who work at Dunkin Donuts, at Mickey D’s, at Dennys’, and at Portland’s diners and family restaurants have to say? Are they making $7.50 an hour?

Why haven’t these folks showed up to testify? Surely they must know that Portland is considering raising the minimum wage; the story has been all over the news for the last 18 months. Don’t they care? Are they afraid their employer would retaliate if they testified they weren’t really making the minimum wage? That they weren’t really making $30-40/hour?

I don’t know the answers to most of these questions. But I do know that workers are hesitant to challenge their bosses, to stand up for their rights. Virtually the first question out of the mouth of every worker who contacts me is “If my boss finds out I contacted you, can he retaliate?” Usually my response is, “It is illegal to retaliate, but I can’t guarantee that it won’t happen.” For many workers, that’s the end of the conversation.

And for those who still want to press forward, there is always the question whether it makes economic sense for me as a lawyer to accept their case. If someone hasn’t been paid at least $ 3.75 in tips on a given shift, how can she prove it? And if it happens every shift all the time, at most the worker is owed $7,500 (2,000 hours x 3.75/hour). But most restaurant workers don’t work 40 hours per week, so the number is going to be a lot less. That’s not a real attractive case to an attorney.

According to the Bureau of Labor Statistics, the average tipped restaurant worker in Portland-South Portland-Biddeford earns $9.80 an hour. So if the average is just $9.80 and so many servers are making $30-40/hour, there must be a hell of a lot less making minimum wage!

There is a way out of this. Eliminate the tipped worker exception altogether. Seven states (and the territory of Guam) currently require that tipped workers be paid the state minimum just like every other worker. A number of those states are among the fastest growing states in the country—California, Nevada, and Washington. Even in big sky country—Montana—the sky isn’t falling just because there is no tip credit.

As Greg Kesich recently pointed out in a column in this paper, the entire concept of tipped workers is an anachronism. Let’s get rid of the tipped credit altogether, set a fair minimum wage for everyone, and include the cost of service in the price of a meal at a restaurant.

Now that would be what I call Dirigo!

 

“Volunteer” Or Go To Solitary Confinement?

By Guest Blogger Andy Schmidt. Andy Schmidt is a workers’ rights attorney in Portland. He can be reached at andy@maineworkerjustice.com.

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1200px-End_of_the_world_prisonU.S. Immigration and Customs Enforcement puts people in “detention centers” based on alleged immigration violations. A Federal judge in Colorado recently ruled in favor of my detainee clients in a case that highlights how these individuals may be exploited by the for-profit companies that run some of these centers.

I represent Maine workers in my private legal practice. But I am also “of counsel” at Towards Justice, an innovative nonprofit legal services provider in Colorado that I co-founded. We mostly represent immigrant workers suffering from wage theft. Some of those workers are undocumented, but we see it as our duty to help all people, both because we recognize our common humanity, and because we realize that if unscrupulous employers are permitted to steal from immigrant workers, those employers will be able to undercut employers that follow the law.

From time to time, Immigration and Customs Enforcement has detained my former clients in Colorado and housed them in a private jail run by a major for-profit company called the GEO Group. To me, detaining individuals based on their immigration status is an essential governmental function that should not be subcontracted to the lowest bidder. Unfortunately those low bidders are now major donors to both political parties, and the system of private incarceration for both convicted prisoners and these administrative detainees has become entrenched.

One huge problem is that these immigration detention centers are run by people from the corrections industry, which is designed to punish and rehabilitate wrongdoers who have significantly fewer rights than immigrant detainees. For example, convicted prisoners can be forced to work without violating the ban on slavery in the 13th Amendment to the U.S. Constitution. But immigration detainees, unlike convicted prisoners, by definition are held for administrative purposes while they either claim a right to stay in the United States or await removal.

Immigration detention is not punishment for a crime – in fact, many times, U.S. citizens are detained in other countries because of mistaken identity. I can imagine going to visit Canada and losing my passport. I might be sent to a detention center before I was sent on a bus across the border. I would expect to be treated with dignity and respect and with the assumption that I am not an intentional law-breaker. I would not expect to be forced to labor for a private company.

But that’s what our clients in Colorado say happened to them. The GEO Group, in order to save on the costs of hiring local workers, allegedly gave the detainees a false choice between “voluntary work” for $1 per day, cleaning up the common areas of the detention center for free, or going to solitary confinement. Unfortunately, we have become almost immune to the horrors of solitary confinement. But as any reader of Alexandre Dumas’s Count of Monte Cristo knows, solitary confinement can cause serious psychological damage very quickly.

Our clients allege that GEO not only avoided adequately compensating the detainees, but unjustly padded their profit margin on the back of a captive workforce while denying those jobs to workers in the local community.

A Federal Judge in Colorado recently refused to dismiss our clients’ claims that they were forced to work and that this constituted forced labor in violation of the Trafficking Victims Protection Act. We have a ways to go before our clients can tell their version of the facts to a jury, but the Court’s ruling is a big victory.

Even I, as a staunch immigrant rights advocate, recognize the need for a border and the need to remove some people who cross without permission. But we should respect the dignity of all people. Empathy or at least self-interest should make us recognize that if we were ever vacationing outside the U.S., we would decry being forced to labor for a private company while they sort out our status

New Overtime Rules: Work Less, Earn More

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$!A “notice of proposed rule-making” by the Department of Labor typically isn’t the kind of thing that gets people excited. (I hope I haven’t already lost you at “notice of proposed rulemaking” – trust me, this gets more interesting). This week, the Department of Labor proposed new rules that millions of workers should know about – and be cheering about.

As one former White House economist wrote, “I can’t think of any other rule change or executive order that would lift more middle-class workers.”

So what is this revolutionary change? In short, it’s a common-sense and much needed update on the rules for when employees are eligible for overtime pay.

Under current federal law, employers have to pay hourly employees overtime at time-and-a-half for every hour they work over forty in a week. But there are some huge exceptions to that rule. The biggest exception is that many executive, administrative, and professional workers are considered “exempt” if they earn a certain baseline salary. Those “exempt” workers don’t have any right to overtime pay – even if they’re working 50, 60, even 80 hours a week, they still just receive their base salary.

Right now, that minimum salary threshold is $455 a week, or $23,660 a year, and that figure hasn’t been updated for more than a decade. The proposed new rule would raise the minimum salary threshold to $970 a week, or just over $50,000 per year, and would index the salary level to inflation so that it’s not out-of-date again in a few years. That change would make about 5 million more workers eligible for overtime pay. And it could benefit an estimated 20,000 workers in Maine alone.

The old salary threshold was in desperate need of updating. In 1975, about 65 percent of full-time salaried workers had a right to overtime pay. In the decades since, that number has crashed to less than 8%. As the law has fallen further behind the times, it has meant that more and more salaried workers –from Burger King and Walmart store managers to administrative and executive assistants – work long hours and don’t get overtime.

And the new rules could have consequences beyond a higher paycheck. They could change the pervasive workplace pressure to work well beyond the 40-hour week.

Right now, many salaried workers are expected to work outside the standard workweek. As Nicholas Castillo, a bank branch manager who earns a $30,000 salary, explained, “My manager had told me, ‘You’re on salary pay.’ And she said, basically, ‘You are required to work more than the normal hours because you are on salaried pay.’” And so he complied, working 50-60 hours a week, checking email and working remotely on nights and weekends. The employer had no incentive to limit his hours, because no matter how many hours he worked, it still paid him the same $30,000.

But under the new rule, employers would have to pay Mr. Castillo and millions like him for the time they work beyond the standard workweek, including when they respond to work emails on vacation or over family dinner. And that could make many employers step back and rethink the expectation that their salaried workers stay plugged in at all times. In California, which for the last decade has had a rule similar to the new proposed federal rule, some companies have banned after-hours emailing or simply shut company email down on nights and weekends.

And really, wouldn’t we all be better off with a little less midnight emailing?

Award of unemployment benefits to FairPoint strikers just result

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Fairpoint-StrikeShould employees who go out on strike against their employer receive unemployment benefits? Wouldn’t an award of unemployment benefits prolong labor disputes and unfairly tip the scales of justice in favor of employees over employers? These questions—and more—were raised by claims filed by strikers who participated in the 18-week strike last fall and winter against FairPoint, Maine’s largest provider of landline telephone and internet service.

On June 5, a Hearing Officer employed by Maine’s Bureau of Unemployment Insurance determined that FairPoint employees involved in the long-term labor dispute with the utility giant were eligible for unemployment benefits. In doing so, Maine joined Vermont in awarding the FairPoint strikers unemployment benefits, but reached a different result from our neighbors in New Hampshire.

Why were employees who participated in the same strike eligible to receive benefits in Maine and Vermont but not in New Hampshire? The answer to that question is simple. Unlike some benefits, like Social Security, which are governed by federal law and thus are decided under the same law regardless of whether an employee lives in Maine or Hawaii, each state has its own rules regarding unemployment.

Thus, strikers who are involved in the very same dispute in two adjacent states can be eligible in one state for unemployment benefits but disqualified in the next state. That’s exactly what happened here; if you were a FairPoint employee who made the mistake of living in New Hampshire, you apparently were able to live for free (or otherwise die).

There is surprising uniformity across the nation with respect to the question whether employees who go out on strike should be eligible for unemployment benefits. While businesses argue that awarding benefits to employees who go on strike prolongs labor strikes and favors employees, the opposite is equally true; denying employees unemployment benefits favors employers and arguably forces employees to return to work sooner than they might.

For that reason, most states, including Maine, don’t automatically award or deny strikers unemployment benefits. Rather, as the Hearing Office noted in the FairPoint decision, they look to see if the strike has caused a “substantial curtailment” of the employer’s operations. That determination depends on the individual facts of each case. In the utility setting, that includes whether customers lost service, how long it took service to be fixed or restored, how long it took to get new service installed, the company’s revenues, and a multitude of other factors. After evaluating those factors, the Hearing Officer concluded that there was no substantial curtailment of services.

In Maine, unlike most states, however, that is not the end of the story. Maine makes its harder than most states to get unemployment benefits in the event of a labor dispute. In Maine, even where there has been no substantial curtailment of the employer’s operations, employees still are not eligible for unemployment benefits if the curtailment was avoided through the use of current and former employees. In practical terms, this means managers and retirees. On the other hand, if operations are substantially maintained through the use of scabs, or strike replacements, then strikers are eligible for unemployment benefits. This provision was added to our state law in 1985 to encourage employers to continue to operate during strikes, but not by hiring additional personnel.

In the FairPoint strike, the utility did not hide the fact that it contracted with numerous companies to provide services normally accomplished by the striking employees. Not only did FairPoint hire contractors to provide linemen, to set new and remove old phone poles, and to provide clerical support, but it also routed service calls and complaints to contracted call centers outside of Maine.

Indeed, when the strike ended, there was no backlog. FairPoint’s President even boasted to shareholders when the strike ended that “I believe if not for the unprecedented and unexpected series of severe winter storms, we would have been able to achieve our objective much earlier.” (Who can forget last winter?)

So, was the Hearing Officer right to award the FairPoint strikers unemployment benefits? To be fair, I’m more than a little biased; I represented the strikers at the unemployment hearing. But, given the Hearing Officer’s conclusion that there was no substantial curtailment of operations, and the undeniable fact that FairPoint used a host of contract employees—exactly what the 1985 amendments expressly were enacted to discourage—then the conclusion was inevitable.

But, this just in; FairPoint has appealed the decision. Stay tuned. In the mean time, happy Independence Day.

“Workcationland”?

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Marina_egypt_haddaraFirst, there was the vacation. Then, with the great recession came lots of talk of the “staycation.” Take the kids to that local museum you’re always vowing to go to, set up the beach chairs and tent in the backyard, or dive into a binge session of Netflix. Not quite the same as an old-fashioned family “vacation,” but way better than nothing (and way less expensive).

But now, there’s a new frontier: the “workcation.”

What the heck is a workcation?! You might ask. Isn’t that a contradiction in terms? The whole point of a vacation, whether it’s local or faraway, relaxed or adventurous, is that you’re not working.

The new “workcation” trend is just what it sounds like: an attempt to blend work and vacation. Employees intent on “workcationing” take their work on the road, traveling to, say, a beach resort while working remotely and not using up precious vacation days.

The Wall Street Journal recently reported that workcations are on the rise, pointing to statistics that regular vacation time has fallen dramatically in recent years. The average American worker took 20.9 days of vacation in 2000, but took only 16 days in 2013.

The whole idea of a “workcation” is, no surprise, polarizing. To some, it may seem like it misses the point of a vacation completely. Vacations are meant for unplugging, spending real face-to-face time (not just Facetime) with friends and family, getting re-energized and refreshed.

To others, a workcation may seem like the best scheme ever. During a cold January in Maine, convince your boss to let you work remotely for a week from Puerto Rico or Palm Beach, and not even use up your vacation days? Sign me up. Some websites even give detailed instructions on just how to pitch the still-somewhat-unorthodox idea to your boss.

But alongside this debate is the polarizing (and often not acknowledged) truth underlying the whole idea of a “workcation”: this is not an option available to every worker. Higher-income, white-collar professionals may have the chance to take a workcation, but that just isn’t a possibility for many lower-paid workers. Just try getting your boss at a Walmart or paper mill to agree to a “workcation.”

This inequity is particularly harsh because workers in lower-paid positions also typically have less (or no) paid vacation or leave time and less flexibility around scheduling. A recent government report revealed the vast disparities in access to paid vacation across occupations. Over 95% of employees in management, business and the financial sector get paid vacation, whereas only about 55% of employees in the service industry get any paid vacation at all.

I’m all for a workcation for those who can get it – as long as those workcation days take the place of regular workdays, not vacation days. But let’s not forget that it’s a privileged few who will have this option. For the rest of the workforce, what we really need is good old-fashioned paid vacation.

Changes to Abercrombie’s “Look”

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1280px-Abercrombie_Kids_Willow_Grove_Park_MallJustice Scalia has not always been the most stalwart supporter of workers’ civil rights in his years on the Supreme Court. But on June 1 he delivered a nearly unanimous (8-1) opinion ruling in favor of a young Muslim woman who was denied a position at Abercrombie because her head scarf did not comply with the retailer’s “Look Policy.” (Just in case you’re not familiar with the store, it’s the preppy retailer whose former longtime CEO Michael Jeffries said only “cool, good-looking people” should wear his clothes.”)

In announcing his opinion from the bench, Justice Scalia said, “This is really easy.” I agree, and I think most people sitting on a jury in this case would too.

The facts are simple. The plaintiff, Samantha Elauf, applied for a job at an Abercrombie store in Tulsa, Oklahoma. She is a practicing Muslim who wears a headscarf as part of her religious practice. She did well during her interview with Abercrombie, earning a rating sufficient to get the position. However, the store manager who interviewed her was concerned that her headscarf would violate the store’s “Look Policy.” The store manager talked to her district manager, who told her that Ms. Elauf’s headscarf would violate the Look Policy, as would any headwear, whether it was religious or not. He instructed the store manager not to hire Ms. Elauf.

So, did Abercrombie refuse to hire Ms. Elauf because of her religion? As Justice Scalia said, that seems like a pretty easy answer: YES. If it hadn’t been for Ms. Elauf’s headscarf, which she wore as part of her religious practice, then she would have been hired. So how did this case even end up at the Supreme Court? They aren’t usually in the business of deciding “easy” cases.

Well, in this case, the Tenth Circuit Court of Appeals did not find the question that easy. It actually dismissed Ms. Elauf’s claim, concluding that Abercrombie could only be held responsible if it had “actual knowledge” that Ms. Elauf needed a religious-based exemption to its general work policies. The appeals court reasoned that Abercrombie didn’t actually know she needed a religious exemption (even if it strongly suspected it). In other words, because Ms. Elauf didn’t explicitly tell her interviewer that she wore the headscarf as part of her religious practice or expressly ask for a religion-based exemption, Abercrombie couldn’t possibly have discriminated against her because of her religion.

Luckily, the Supreme Court intervened and overturned the Tenth Circuit’s nonsensical ruling. The Court held that as long as the employer has a suspicion (even an “unsubstantiated suspicion”) that the employee would need a religious exemption to a general work rule, the employer could not refuse to hire a job applicant based on that suspicion. Here, Abercrombie strongly suspected that Ms. Elauf wore the headscarf as part of her religious practice and yet it refused to hire her because of the headscarf. That’s religious discrimination, even if Ms. Elauf didn’t expressly ask for a religious accommodation in her interview.

And what now for Abercrombie? Interestingly, Abercrombie actually modified its “Look Policy” in 2013, so it now specifically acknowledges that headscarves can be accommodated in the workplace. But the Supreme Court’s decision ensures that this policy change will stay in effect.

As one commentator said, Abercrombie “is known for its shirtless male models, but it might have to get used to women in headscarves.”

You can be what you are: Caitlyn Jenner

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Bruce_Jenner_greets_Gerald_Ford_and_William_Tolbert_in_1976Is anyone talking about anything other than the Caitlyn Jenner cover of Vanity Fair? For months it had been rumored that Bruce Jenner, 1976 Olympic decathlon gold medal winner and arguably the greatest athlete of the modern era , was going to come out as a woman. Transgender people, while increasingly in the public eye, are still unfamiliar to many of us. Perhaps because of Bruce Jenner’s status as a champion record-setting athlete—and perhaps even more so because of his membership in the publicity mongering Kardashian family— this transition seems to have grabbed everyone’s attention.

And what a cover it is! Who can deny that Caitlyn Jenner looks awfully sexy in her lingerie? “Sexy” is not the first word that comes to mind for most people when they think about a transgender person. So in that sense, the Annie Leibovitz cover photo is liberating; it helps destroy our preconceived stereotypes about these members of our society.

And maybe the sexy picture could explain the otherwise obnoxious comment by former Arkansas governor and three-time Republican presidential candidate, Mike Huckabee, that he wishes he could have identified as a female in high school gym class. But I don’t think Huckabee was really saying that he found Caitlyn attractive—rather, I think he was really resorting to that shopworn stereotype that all transgender people really want to do is get into the bathroom or locker room of the opposite sex so that they can see them naked. Perverts!

I’ve had the privilege of representing transgender people on several occasions. On one occasion, my client wanted to use the women’s room at a restaurant. In the second case, my client wanted to use a women’s locker room. On both occasions, these transgender women were denied the ability to do so—although the Maine Human Rights Act gave them the right to do so—because employees thought that other patrons or customers would be offended or, even more baseless, because they supposedly might assault “real” women in the bathroom or changing room.

The first argument at least has some merit to it. Yes, some individuals are and will be uncomfortable by the presence of people with genitalia that don’t conform to their expectations of what it means to be male or female (although research increasingly shows that we are not so binary as we tend to believe). But the same argument was used to exclude blacks, women, Jews, people with disabilities—they’re just not “like” us. And we have long since rejected the argument that because we are uncomfortable with someone else’s protected characteristic, therefore we should be able to discriminate against them.

The second argument, the fear of assault, is just plain ridiculous. If anyone has good reason to be fearful of assault, it is the transgender person. Dressed in the garb of his or her new identity, but forced to use the facilities of the sex she was assigned at birth, she is far more likely to be assaulted than to assault someone. Indeed, statistics show that over 50% of transgender individuals suffer assault at some time. So the idea that someone would pass himself or herself off as a member of the opposite sex to assault a member of that sex is absurd. People don’t “choose” to be transgender anymore than they choose to be gay.

Growing up, the Temptations had a hit song, “Cloud Nine.” In the lyrics, members debated the merits of life on earth (a “dog-eat-dog world”) versus life on cloud nine, where “you can be what you wanna be” and live in “a world of love and harmony.” I doubt Caitlyn Jenner is on cloud nine, but I for one am glad that she is finally free to be herself.

Will robots take YOUR job?

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Senator_John_Heinz_History_Center_-_IMG_7802For decades, there have been stories – both real and imagined – about human workers being replaced by machines. You only have to Google “humans replaced by robots” to see scores of headlines about what will happen when robots take our jobs. Articles report that “Robots are replacing us faster than we expected,” predict that “Robots will take over 30% of our jobs by 2025,” and suggest that “When robots take our jobs, humans will be the new 1%.

These headlines are nothing new. Since at least the time of the Jetsons’ Rosey the Robot (which first aired more than 50 years ago), we have been wondering and worrying about what will happen when machines can do the work that people do. The robot man and dog pictured here were constructed for the 1939 World’s Fair.

And in some ways, that future is already here. Just recently, a new “humanoid” was unveiled in a Toyko department store. The amazingly lifelike robot, named Aiko, is working in customer service at the store and is often mistaken for a human being.

And sometimes, robots are performing human jobs completely without our knowledge. Last year, the Associated Press began using an automated computer system to do some of its reporting, such as coverage of businesses’ quarterly earnings reports. The AP’s robot journalists now “write” about 3,000 of these stories each quarter.

All this talk of whether robots will take (or are already taking) our jobs made me especially interested in a story about the opposite phenomenon – humans taking a computer’s job.

If I search for a “red shirt” on Amazon, I’d always assumed that the search was being done completely by computer algorithm, with no human involvement. But I was wrong. In fact, that kind of search is incredibly hard for a computer to figure out, because there are so many different ways of describing the color red (crimson? pink? scarlet?). Figuring this out requires human judgment. And, Amazon discovered that this wasn’t the only thing computer software couldn’t do well – Amazon had millions of tiny jobs that required a little bit of human input. So Amazon started advertising these tiny jobs for people to do online, and other companies followed.

Today, there’s an army of people, referred to as “Mechanical Turk” workers, who do these mini-jobs for thousands of businesses all over the world. Each task usually takes a few seconds or a few minutes, and pays a few pennies or dollars. The Mechanical Turkers usually do this work on the side – it can’t pay the bills – but it’s interesting and varied work. All this made me want to start doing some Mechanical Turk tasks. For once, I’d like the computer to be worried about whether its job is secure.

The thrill is gone; did Deflategate taint Pats Super Bowl victory?

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Tom BradyFor the last week, we’ve been inundated with coverage about Deflategate and the NFL’s decision to suspend golden boy quarterback Tom Brady for four games, fine the Patriots $1 million, and take away two top draft picks. In case you somehow missed it (and if you did, you must be still stuck in a snowbank left over from last winter), last week the NFL announced the results of an investigation conducted by attorney Ted Wells into allegations that the Patriots and Brady deliberately had the air pressure reduced in game balls prior to the AFC championship game last January. Apparently the game ball is easier to grip and throw (at least for Brady) when it is not inflated to NFL standards.

Prior to the release of the Wells report, all sorts of folks, from scientists at MIT and Bill Nye the science guy, to retired players, to doctors and lawyers, to everyday fans, had weighed in with explanations and theories about why the championship pigskins had (or had not) lost pressure and if it had affected the outcome of the game. Patriot-haters pointed to the Pats history of bending the rules (see spygate in 2007), while Patriot backers pointed out that both teams were using the same football and in fact Brady had not had a good first half but when the properly inflated balls were used in the second half, he had thrown 4 touchdown passes.

The Wells Report concluded that it was “more probable than not” that Brady and two assistants knew about and/or participated in the scheme. One would have thought (hoped?) that the Wells report would have put this matter once and for all to rest, but instead it has just fired up the NFL base (which seems to consist of the entire country, save some granolaheads and leftover hippies). Patriot lovers emphasize that Wells refused to interview an employee who supposedly would have exonerated Brady and the team; they further raise the old canard that there is a conspiracy out to get the team (forgetting that owner Bob Kraft and Commissioner Roger Goodell are buddy buddy. Patriot detractors point out that Brady returned to turn over his cell phone (rather incriminating, don’t you think) and that one of the principals referred to himself in emails as “the Deflator” (which he now incredibly claims was a reference to his diet!”).

So, the battle rages on. Last night Kraft said he would not appeal the penalty, perhaps leaving Brady out to dry. As one columnist wrote this week, quarterbacks come and go, but the NFL ownership club is most exclusive—and lucrative. Don’t want to bite the hand that feeds you.

What does all this have to do with employment law? It has to do with criticism of the fairness of the Wells investigation. A number of commentators have questioned the fairness of the investigation, asking how can Wells be impartial if he is being paid by the NFL? Still others ask how it can be fair that Commissioner Goodell decides Tom Brady’s appeal of his four-game suspension.

Press Herald columnist (an apparent Patriot fan) Alan Caron put it this way in his column May 14:

The NFL, which is a billion-dollar private corporate entity, has just served as the accuser, investigator, prosecutor, judge and executioner in this case…

Imagine the conversation we’d all be having if this case wasn’t about the NFL and the handsome millionaire Tom Brady but about Wal-Mart or Home Depot and a woman stocking the shelf.

Let’s say that Wal-Mart suspected the woman of stealing things, before it had any direct evidence, and recklessly caused her embarrassment and damaged her reputation…[T]he company appointed its own law firm, which handles all lawsuits brought by employees, to undertake an ‘independent’ investigation….

The investigation not surprisingly sustained the company’s claims…by asserting that it was ‘more probable than not’ that the employee stole something…

When Wal-Mart fired the employee…a salivating press rushed to report the findings, as though they’re actually the work of an independent reviewer. The ‘defendant[]’had no day in court, Nor rules of procedure. No independent judge. And no jury of [her] peers to turn to.

If that had actually happened, the country would be shocked and…attorneys would be trampling each other to take the case against Wal-Mart.

Well, let me tell you something, Mr. Caron. This is exactly the world we live in, and no, attorneys are not lining up to take these cases; the employee would be lucky to find a good attorney willing to do so. Because every day in America, what happened to Tom Brady is exactly what happens to non-union workers. Workers are accused of wrongdoing; the company investigates (and usually not be an outsider); and if the employer concludes that the employee likely engaged in the misconduct, it can impose whatever penalty it deems appropriate, up to and including discharge.

And guess what, Mr. Caron? Contrary to your belief, the employee has no right to a day in court. Or to an independent judge, let alone to a jury. Because in America, without a contract of employment or a collective bargaining agreement, an employee is considered to be an at will employee. Which means she can be fired for good reason, bad reason, or no reason at all, so long as the decision is not based on characteristics like race, age, sex, religion, national origin, disability, or (in Maine but not everywhere) sexual orientation.

I wish Mr. Caron were right. I wish that Americans were trampling over each other to assure that they are treated fairly in the workplace. But for now, that is not the law of the land. What happened to Tom Brady could happen to any worker.

One big difference; most of us don’t have millions in our bank accounts to go home to, let alone Gisele Bundchen.