Reflection #5 in the Time of COVID-19 and the Betrayal of the Public Trust

By Patrick Cassidy, Esq.

20200613_131027These Reflections started as “Reflections on the Law” during the Covid-19 pandemic. They now conclude amidst global protests over George Floyd’s murder at the hands of unscrupulous members of the Minneapolis Police Force. They end despite the fact that the vast majority of Americans realize that the rule of law, and “accountability” for violations of it, are at risk like no time before. At the same time, it has become clear to most Americans that our own minority communities have yet to fully benefit from the “rule of law” protections proclaimed by our “Founders” as fundamental to the continuing existence of our democratic Republic.

We see the “Executive Branch” of this now wobbling Republic refusing to mitigate and manage the pandemic for his own personal political interests. We see that same Executive Branch “leadership” failing to support and protect “essential workers,” who have acted with selflessness and integrity during the pandemic. Instead, he promises his business friends that he will get them “immunity” from lawsuits from any employees lost to unsafe, non-distancing practices of their employers (in the name, no doubt, of further “tort reform”). You will recall that one of the few “safety” laws available to employees pre-pandemic, was our understanding of the law that employers had (at least) to provide their employees a safe place to work. (See Reflection No. 1).

As peaceful protestors turn out in the thousands and millions in this nation and around the globe because Black Lives Matter every bit as much as those of our white citizens, we see the President threatening the complete collapse of our constitutional “rule of law,” by threatening to call out the U.S. military to “dominate” the streets (See a “pre-reflection prediction” in “Killing the Lawyers,” Weelunk, 2016).

What we need, perhaps most of all, when it comes to reflecting on the future of the “rule of law” in this country, is to find a way to make public officials and public employees, at every level of government, “accountable” to the law.

Jobs First & The Accountability Amendment

The Jobs First Agenda suggests the implementation of a renewed Civilian Conservation Corps-type government initiative to re-hire (at a living wage) all of our currently unemployed and suffering citizens, whether victims of loss of jobs due to the pandemic, or unequal opportunities, or unjust hiring practices, to work on infrastructure (and national) rebuilding in the broadest sense, until federally-incentivized jobs in the private sector can bring back full private employment in our country (without socialism). But, we must also consider perhaps the most important and last amendment to be proposed as part of the Jobs First Agenda, which we call the “Accountability Amendment.”

Without it, nothing will even come of our proposals to guarantee a living-wage job as a right of all citizens, universal health care as a right of all citizens, and free education through college or vocational school as a right of all citizens. Without it, nothing can change in our country, in our Republic, for the “common good.”

None of the proposed constitutional amendments under the Jobs First Agenda, will ever work unless the people administering any such Agenda have the integrity to make it work; and unless we have a way to challenge self-seeking and corruption of our public officials and employees on the federal, state, and local levels.

Why should elective office be so widely considered now (but thankfully not by all of our politicians) as just a vehicle for the promotion of one’s private business interests? Why have so many positions of “public trust” been squandered by unscrupulous people on opportunities for self-promotion not available to regular citizens without privileged positions? Whether those unscrupulous “public” agents were able to amass that wealth or private benefit without “technically” violating laws against outright bribery, was not the breach of any trust by self-dealing or private interest by public officials or employees not the very conception of “corruption” held by the Founders of this Republic? (See “Wanted: A Self-Drainng Swamp.” See also Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United by Zephyr Teachout)

Ending Sovereign Immunity

People we hear criticize the government, or its bureaucracies on every level, are not reflecting a natural hate of the idea of government and what it is supposed to be doing. They are not generally anarchists. But what most troubles them is that government often fails to do the job it is supposed to be doing for them at every level because of its “lack of accountability” — most often by virtue of outdated notions of “Sovereign Immunity,” the idea that one cannot sue the state, as proclaimed by King George III during the American Revolution. Somehow we failed to throw out that quaint provision of the “King’s Law,” an unconscionable “oversight” by our Founders along the same lines of not abolishing slavery the first time they penned that “all men are created equal.” What we need now more than ever is accountability from all public officials, and all public employees. We have had endless discussions among our fellow citizens about it. We have heard it from our educators, our health care workers, our journalists, our children. “We need Accountability.”

Today, we are hearing it demanded from thousands of peaceful protestors around the country, and around the world.


Restoring the Public Trust

We know, but hesitate to confront the reality, that no Republic can survive if what’s left of its justice system is eroded by corruption–whether by outright bribe, private interest, or greed.

So here is the last of the Constitutional Amendments proposed as part of the Jobs First Agenda, which we refer to as the “Accountability Amendment,” and is necessary to hold public officials and employees from every level of government, as well as private persons or corporations engaging in “public service, accountable. Like the other proposed Amendments of the Jobs First Agenda, it too is adapted from the Universal Declaration of Human Rights of 1948.

The proposed language is a follows:

Public Accountability Amendment

Everyone is entitled to a social order in which the rights and freedoms set forth in this Constitution can be fully realized; and in the exercise of each and every citizen’s rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society. (Adapted from Articles 28 and 29 of the Universal Declaration of Human Rights of 1948).

Section 1. Such a limitation required solely for the purpose of securing due recognition and respect for the rights and freedoms of others includes the necessity of declaring all Public Employees, at the federal, state, and municipal level, including, but not limited to, all elected public officials, non-elected public employees, public police officers, and any private persons, corporations, or other entities that provide essential public services, shall be considered holders of positions of Public Trust; and shall have fiduciary duties of good faith and trust to all citizens in their respective jurisdictions, and shall be held to a high standard of honesty and full disclosure in regard to all citizens in their respective jurisdictions, and shall not obtain a personal benefit at the expense of any citizens in their respective jurisdictions, and shall be subject to personal liability at common law for violations of the public trust as herein defined. Such actions shall be brought under the common law, and for violations of this Amendment by Federal public officials, in any federal court of any state, on behalf of one or more citizens of The United States of America, and such actions against state or local public officials shall be brought in the courts of general jurisdiction of the appropriate state where the violation of Public Trust shall have occurred. Any actions at common law under this Amendment shall not be subject to a defense of “lack” of standing, so long as brought by any citizen of the United States or State as specified herein; nor shall the defense of “sovereign Immunity,” “absolute immunity,” or “qualified Immunity” be a defense to said action, or the creation of a “common-fund” for damages for said breach to the benefit of the citizens of the United States, or citizens of the appropriate state or local jurisdictions as defined herein. In all such actions, Trial by Jury shall be preserved, in accordance with the Seventh Amendment to the United States Constitution.

Please note, when you read section 2, that the “Accountability Amendment” also requires compensation for destruction to the environment and contribution to climate change, and serves as the mechanism to make the Jobs First Agenda a vehicle for a “non-socialistic” New Green Deal. It seeks reasonable and what we now realize is “necessary” accountability for actions being taken by any person or corporation to destroy our climate and environment, which would be expected to make the transition from fossil fuels to renewable energy nearly immediate, and based on economic feasibility, which the consensus of scientific evidence requires, if we are to save our way of life, and our climate, for ourselves and our posterity.

Section 2. Such a limitation required solely for the purpose of securing due recognition and respect for the rights and freedoms of others includes the necessity of declaring that no person, corporation, or other entity shall contribute to damage to the environment, including, but not limited to, unreasonable contribution to “global warming,” or in the alternative, shall pay an amount equal to the unavoidable damage they cause to ameliorate the effects of any such contribution; nor shall any person, corporation, or other entity otherwise cause harm or destruction to the “public commons” for private gain; including, but not limited to, the right of every citizen to affordable clean water; clean air, and an environment healthy and safe to our citizens and their posterity, without compensation equal to the harm or destruction caused. One or more citizens shall have standing in any appropriate state or federal court to bring actions at common law in their respective jurisdictions to remedy any damage to the environment, the public commons, or for unreasonable contribution to global warming, in the nature of creating a “common fund” for the benefit of all citizens, or citizens in their own jurisdiction, if such damage is confined thereto. In all such actions, Trial by Jury shall be preserved, in accordance with the Seventh Amendment to the United States Constitution.

Section 3. “Non-Preemption” Clause. Nothing herein shall be deemed to limit the right of any individuals or other person or citizen personally harmed by any breach of Public Trust, or personal harm to themselves or their property, under any other laws heretofore existing, or that may be enacted in the future; it being the purpose of this Amendment to afford “a more perfect Union” by requiring accountability to all citizens for harmful acts to our citizens and their posterity, without interfering with any existing laws with a more limited purpose.

A Parting Suggestion

20200604_123248This final Reflection on the Law during the time of Covid-19, which has come to include this Reflection on the State of the Rule of Law in general, comes with a parting suggestion. We must set the Agenda in motion. We must ask our current Representatives and Senators to introduce these amendments and shift the “priorities” of our country toward serving working Americans of all nationalities, races, classes, and creeds, to adopting a universal declaration of human rights, and a framework for challenging state actors to be accountable for the change. If they refuse, we need to vote them out of office, and elect someone who will.

“Show me what Democracy looks like?”

“This is what Democracy looks like.”



Reflection #4 in the Time of COVID-19

Reflection #4 in the Time of COVID-19
by Patrick Cassidy, JD

Here in the Heartland, spring seems delayed, as we hear constant bad news about more infections, more deaths, and inevitable economic devastation due to COVID-19.

But if that’s not enough to keep you up at night, you might read the recent Salon article by Chauncey Devega, who discusses the works of some well-known American “thinkers,” people like Pulitzer Prize Winning author Chris Hedges, whose new book, America: The Farewell Tour, and Atlantic Magazine writer and author George Packer, who sees the pandemic as hastening the decline of our country, whether or not your political ideology limits your reflections on the future to a multiple choice question:

Our country is: a) still great; b) formerly great; c) soon to be great again; d) all of the above.

According to these pundits, whichever your preference, your political affiliation, whether Republican or Democratic, is not going to stop the decline because leaders of both parties have been overseeing the same economic system that prioritizes “inequality, callousness, selfishness and profit motive.” For them, Republican and Democratic presidents have advanced that agenda for decades. Theirs is a profound, if gloomy, prognosis that we all should reflect upon in this time of crisis.

National Road, Wheeling. April 24, 2020. S. Duffy.

Before you start feeling “good” about the prospects of opening up the country
“economically,” please stop for a moment and consider all those essential and front-line workers, like health-care workers and other emergency responders, public employees, meat packers and food workers, grocery store employees and other service personnel, many of whom have suffered and died in lopsided numbers from the corona virus as compared to those who had the option, ability, or luxury, to stay at home. Those working from home benefit from and rely on the front-line workers to provide them with food and other living essentials during the pandemic; those same front-line workers whose new normal is the witnessing of wholesale sickness and death, without family support, or who themselves face increased risk of illness and death.

“Life and death” decisions have come to the American workplace in huge numbers, now more than at any time in our recent history. Both having a job during the pandemic, and not having a job, might kill you, or a loved one. While the narrative of opening up the economy projects the false notion that economic health and public health are locked in a zero-sum game in which one’s gain is another’s loss, we should well realize that those suffering—economically—and most importantly, physically, are those who are already marginalized and treated as expendable by the prevailing economic system, despite their current “essential” designation. It should be no surprise that Covid-related casualties and those at the most risk correlate along class, race, and gender lines as many “essential” workers are women, people of color, and the working poor.

The frustrating thing about “reflecting” on the “legal rights” for our workers during the time of Covid-19 is that what little legal protection American workers have, what little “rule of law” allowed them (and which have been the source of these Reflections) has been shown to be fragile, and subject to cancellation by the “whim” of our political leaders.

Last week, it took only a “claim” by the CEO of Tyson Foods that the “food chain” was in jeopardy to cause the President of the United States to issue an executive order for virus-threatened meat packing employees to keep working in the midst of danger. And all that law I mentioned in Reflection #1, about providing your employees a “safe place to work?” Forget about it. The President, backed by Senate majority leader, Republican Mitch McConnell, also announced that he will be seeking to give Tyson and all of Corporate America “legal immunity” for breaking the law (whichever) during the Covid-19 pandemic.

This intention completely ignores the contrary public pronouncements of Governors of most of the states that the present social-distancing policies are to ensure the “health and safety” of all residents, including workers. And in the case of “essential workers,” social-distancing polices require companies to take “precautions” to protect their employees’ health and safety, which used to be referenced legally as in, “providing a safe-place to work for your employees.” What is amazing is that the “rule of law” was so causally swept aside, and almost immediately, upon the unsubstantiated claim by a top CEO that the “food chain” may break down, when Tyson was having trouble getting its chicken to market. Not coincidentally, Tyson workers, like most meat-processing workers are African-American, Latino, and immigrants toiling at low-wage, high-risk jobs without adequate safety measures during (if not before) the pandemic.

Is what little “Rule of Law” we have for working Americans so fragile that we dispense of it whenever a CEO of a large Corporation complains about “risks” to his company’s bottom-line for getting its regular supply of “chicken” to the supermarket?

Is that why many working Americans are suffering from this pandemic, because their “chicken” purchases have been curtailed?

Shouldn’t we at least be getting unbiased reporting from our food and safety agencies before we declare a threat to the food supply is so great that forcing employees to work in unsafe conditions should be the new “Policy” of the government; or the reason why the Federal “Defense Production Act” should finally be implemented—to squelch employee protections instead of delivering needed medical supplies and protective gear to our health care providers?

Have we not “reflected” already, that through it all, that many (if not probably most) of these health care workers, these other essential workers, are not even guaranteed a “living wage,” in this country for their (now we realize) essential work for the common survival of our society? Whether an overworked nurse, or an orderly, or member of the hospital cleaning staff, grocery store worker, public employee or other emergency first-responders, most of these people are not unionized—let alone earning a “living wage.”
Well, what’s so unusual about that? A lot of other occupations, such as “teachers,” don’t make a “living wage” as well, and they are not complaining. Well, if you think that is true, you haven’t been listening.

There have been suicides and mental breakdowns in the health care sector during this pandemic. Some workers say they will “do their duty” during the crisis, but intend to leave their “health care” occupations long term. Many other employees, deemed “non-essential,” by our current “value system,” will not be going back to work at all, even if they were able to “shelter in place,” because their small businesses have shut down permanently, or their wages were so marginal to begin with that they will ride out their “increased” unemployment benefits until they run out, and then begin to look for equally marginal jobs to the ones they left during the crisis.

The Jobs First Agenda (JFA) believes all American workers, as a matter of right, should be paid a “living wage” whether considered “essential” during any particular emergency or not. (Reflection No. 3 discussed how mine workers were considered essential to the National Defense during WW II, only to have that status forgotten afterward).

Read: the Top Ten Features of The Jobs First Agenda.

But why are the wages of American workers generally so low to begin with that it can be true that nearly half of Americans live pay check to pay check, and could not come up with an extra $2,000 for an emergency. Those statistics came from a widely-reported 2015 study, with more recent surveys indicating that, for the majority of Americans, the threshold number is often lower. No matter the amount, the point is that economic instability, if not the immanent threat of economic ruin, is a fact of life for too many working Americans—even prior to the pandemic.

Yes, we agree with the pundits above that “inequality, callousness, selfishness, and profit motive” has been as inbred into our culture since at least the 1980’s as a substitute national “policy” of our economic system; but The Jobs First Agenda also recognizes that it has not always been this way in our country.

As a result of an earlier national crisis, The Great Depression, our country in 1935 declared that it was the “public policy” of the United States to determine wages by “collective bargaining” as the best way to keep “commerce” unimpeded and for all American Workers to be treated fairly. And you might not know it, but that policy is still in the law books, although an unobserved relic of another failed “rule of law.”

But don’t think this is a matter of “personal opinion.” Here is the “pertinent part” from the official United States Code, which codified the National labor Relations Act of 1935, at the height of the Great Depression:

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. (NLRA, 29 U.S. Code §151).

How is it, you may ask, that if collective bargaining has been this country’s public policy for making these kinds of wage determinations since 1935, still only about 10% of all Americans are covered by a collective bargaining agreement, that is, a “union-negotiated agreement”?

The answer is that partisan politics, starting with Richard Nixon in the 1970’s, turned the National Labor Relations Board from pursuing the announced policy of the law, into just one more bureaucracy of swinging doors between regulators and the regulated, and ultimately a “tool” for setting the rules for how far a company could go to use red tape, propaganda, force, and intimidation to thwart employees trying to form a union. The Answer—Pretty Far.

Notwithstanding these partisan changes, The Jobs First Agenda asserts that true collective bargaining can be brought back by simply returning to the longstanding, fundamental policy of the United States. This can be implemented by a substantial modification to the existing NLRA, or its complete replacement with an Act more in accord with the “policy” supposedly reflected in its language.

Under the JFA, employees would choose a “bargaining representative” as a matter of right when they become employed (in accordance with the long existing PUBLIC POLICY of this country), so that any determinations about the “terms and conditions of their employment,” would thereafter be determined solely by “collective bargaining.” Upon reaching an agreement with the workers’ collective bargaining representative in any particular workplace, or occupation, that agreement would need to be certified by the Department of Labor to be free of coercion with full and free collective bargaining—before the employer would be entitled to get the “incentivized” tax treatment for employing individuals at the “living wage”—what we call the “secret sauce” of the Jobs First Agenda, that both makes it non-socialistic, and able to be paid for by a massive reform of the tax code to prioritize human capital–over fossil fuels, big corporations, and lobbying groups–to prioritize our American Workers over “inequality, callousness, selfishness and profit motive.”

We believe that our government, to ensure an economically sustainable way out of this pandemic, need not wait until the Jobs First Agenda recommended amendments to the Untied States Constitution are ratified.

Instead, the government could start to hire back unemployed and permanently displaced employees in the Infrastructure Sector, prioritizing “moving towards a Green economy,” as discussed in the last Reflection.

Consistent with its recognition of its own long-existing policy, each and every employee hired by the government would be automatically signed up with the appropriate collective bargaining representative for the work site, or public employment sector. Employees would still have the right not to join a union; but this will not serve as an excuse for all employees not to reap the benefits of collective bargaining, which will in any event be mandatory for both public and private employers.

As a new Agency, the new Civilian Conservation Corp (CCC #2) would presumably contract with the largest government union, to engage in collective bargaining; and it would be from “collective bargaining” that a “living wage” would be determined for all new government hires. While the government would be truly functioning as the employer of last resort to decrease unemployment during a time of crisis, it would retain that function on a much more limited scale after the pandemic, assuming reforms to the NLRA are made to allow for mandatory collective bargaining in the private sector. We believe The Jobs First Agenda will lead to “full” or near “full” employment in the private sector because of every employee’s right to a “living wage job,” paid for by incentivized subsidies (multiple tax deductions or the like) inuring to the benefit of private employers in return for paying “living wages” to their employees.

Whatever the economic future of Working Americans, we have also learned over the last decade that both corruption of our politicians and our institutions, has to be stopped and government accountability assured before the American Worker can believe in any system of reform, even if it is “old values,” or “old priorities,” re-introduced into our economic system. It will not be enough to talk about changing priorities if our politicians remain corrupt and if our government remains “unaccountable” to the partisans of “inequality, callousness, and selfishness and profit motive.”

Reflection #5, due next week, will discuss just how The Jobs First Agenda hopes to change the present narrative about corruption and governmental accountability, to complement the new priorities (or renewed old priorities) of our economic system. In the meantime, stay safe, and keep “Reflecting.”

Reflection #3 in the Time of COVID-19

Reflection #3 in the Time of COVID-19
by Patrick Cassidy, JD

Reports are unrelenting that whenever the country gets back to work from the Covid-19 pandemic, resumption will not be “business-as-usual.” Many department stores have announced they are at risk of bankruptcy, if not already preparing to file. The airline industry is at a standstill, for how long is anyone’s guess. Many shuttered businesses in the restaurant and hospitality industry are not expected to return to pre-pandemic levels any time soon, and the current “glut” of oil has put the fossil fuel industry into a tail spin.
While many pundits are actually calling on the federal government to continue to extend, and re-extend, federally subsidized higher–than-usual unemployment benefits, WALS believes that most of these employees now “stuck” with no option of returning to gainful employment any time soon would be happy to transfer to a new “infrastructure job,” along the lines of a new Civilian Conservation Corps (CCC), such as was so successfully instituted under President Franklin D. Roosevelt during the Great Depression.

This new CCC, assuming it paid a “living wage” (certainly more than they would be collecting in unemployment insurance, however extended), could not only tackle the many infrastructure repairs urgently needed on the federal, state, and local levels (like the long-overdue I-70 bridge project now underway in Wheeling), but could also make fighting climate change a priority. Promoting and utilizing renewable energy sources and starting to convert the economic infrastructure of the nation into an economy that is not marching the country and world to the brink of destruction is as urgent an economic and public health task as any. Even the present pandemic (the emergence of yet one more new deadly virus) may be linked to the growing risks of climate change and environmental destruction to the biosphere. (See Chapter 7, “The Biosphere: Eat and Be Eaten” in J.R. McNeil, Something New Under the Sun: An Environmental History of the Twentieth Century, 205-211).

Not only would such a program provide “productive’ work to unemployed Americans (who in my experience prefer meaningful work to collecting unemployment benefits), but it would give the country an opportunity to finally acknowledge the full risks of climate change, assess how that heretofore “abstract” threat may itself affect the many new strains of viruses in the world, and start a systematic re-building of the infrastructure on a “green-model” to start in earnest mitigating climate change and further biosphere destruction—which other “invisible enemy,” the Corona virus, has not displaced, but highlighted.

We naively hope that the “glut of oil” problem will cure itself when people return to driving their gas-guzzling SUV’s around our cities. But the consequences for West Virginia, and the economy at large, will go deeper than that. Economic damage as a result of the Corona virus is apparent already, and presumably will affect the rest of the fossil fuels industry on a long-term basis. Coal production in West Virginia will be down, not just because Murray Energy is in bankruptcy, but because a nation glutted with oil will not only have less demand for coal (and possibly natural gas), but be less able to rebound. And that, of course, does not bode well for the state’s energy industry or its workers.

The Jobs First Agenda provides for employment at a living-wage as a right (hopefully by Constitutional Amendment, as discussed in Reflections on the Covid Pandemic, #2.) WALS believes that making the federal government the employer of last resort in this time of serious infrastructure depletion would not constitute “socialism” (as the term is generally misconstrued and weaponized by opponents of sustainable energy and labor rights). As the economy improves, and individuals are re-employed in the private sector, (pursuant to an employer incentivized “living wage,” also discussed in Reflections #2), the presumption would be that we would have full or near full employment in the private sector, and the government’s role as employer of last resort would not be a continuing burden and it would also be a boon to a new, greener economy. Until the private sector gets back to “full-employment,” we would direct needed “green” infrastructure renewal to not only mitigate the current effects of climate change, but to transition to a green economy less dependent on fossil fuels, which has the potential for millions of new jobs in a new “green” economy.

Coal Miners are a special case, because as a society we owe much of our country’s economic progress and ability to defend itself from foreign enemies to their dedicated, and sometimes life-threatening work; and it should be recalled that during our country’s last great emergency– WWII—miners were considered not just essential workers as they are during the pandemic, but Essential To the National Defense, being exempt, by law, from military service. (Though, many found ways to ignore that exemption to fight the fascist enemy). Our country in general, and West Virginia in particular, still owes a great debt to our state’s and our nation’s coal miners. Yet all we have done with our laws over the last century is to make it easier for our nation’s coal operators to shed (in bankruptcy), their long-term pension and health-care commitments to our miners. But a great opportunity to pay back that debt we owe them would be to allow those presently unemployed during the pandemic to transfer to a government-paid, infrastructure works project based along the lines of the CCC model and at the same wages they were making in the fossil fuels industry.

Recent offers to “retrain” our coal miners for other occupations, for example, in the “digital economy,” though well intentioned, are doomed to failure. Miners I have known in my life (like my father) were never going to become “computer programmers,” but they all had the rare talents to tackle the most difficult, even life-threatening jobs for the sake of their own, their families, and the community’s well being. Their talents would be easily transferrable to infrastructure renewal and repair, as would the talents of our many out of work steelworkers, transportation workers, and building trades workers, and many other working Americans.

Then too, an infrastructure program envisioned by WALS would not only tackle “road projects,” but also offer opportunities in other fields and endeavors necessary for the future “infrastructure” success of our county, such as providing child care workers, teachers and educators, and even medical care to our uninsured and vulnerable. A provision for health care to the currently un-insured as a public-health infrastructure program, while we transition to a universal health care system, would be an economical way of handling, in the beginning, implementation of each citizen’s right to universal health care (also discussed in “Reflection #2”). Defined this way, “infrastructure repair” becomes more than a bricks and mortar proposition, helps re-build society, re-energize our economy and in the long term, our nation, toward its long-sought, but never achieved, goals of The Universal Declaration of Rights of 1948.

So, although continuing bad news about the pandemic, and its lasting effects on the economy are in everyone’s thoughts, it’s worth “reflecting” that although the current Covid-19 pandemic started in China, the Chinese language has always had the same character for “crisis” and “opportunity.” Let’s hope our current crisis is not just one heartbreak after another, both for the people we have lost, and the lost economic opportunities of much of our fellow-citizens, but an opportunity to “re-consider” some fundamental ways of “re-doing” business in the United States. But it will take some bold action at the top of our government, in conjunction with all 50 states, to not only plan for the “day-after” the pandemic, but the lingering economic destruction that everyone knows will be left in its path. And that is the question…..Are our leaders up to the challenge?

If you are interested in learning more about the WALS Foundation’s Jobs first Agenda, contact us at, visit our website at, or visit our Facebook page.

Reflection #2 on the Law during the COVID-19 Pandemic

Part 2: A Living Wage & Universal Health Care
by Patrick S. Cassidy, Esq. President, the WALS Foundation

The Wheeling Academy of Law & Science – WALS Foundation -brings informative educational programs on issues of law and other public concerns (such as climate change) to our community, including continuing legal education to area lawyers and other interested individuals.

Since this is not the best time to be holding public programs, WALS intends to provide a series of “Reflections on the Law during the COVID-19 Pandemic,” for educational purposes only. These are not intended to constitute “legal advice” to any person or group in any particular situation. Rather, in this time of pandemic, these offerings are intended to stimulate thought and refection before decisions are made by lawyers, HR personnel, employees, small businesses and others, in trying to do the “right thing” by their employees.

Accordingly, no employee, business owner, lawyer, or anyone else should rely on these “reflections” with respect to any particular planned employment decision, but should consult with their own attorney or legal adviser before making any decision of legal consequence. Read more

Reflections on the Law during the COVID-19 Pandemic

Part 1: Employment Rights
by Patrick S. Cassidy, Esq. President, the WALS Foundation

The Wheeling Academy of Law & Science – WALS Foundation -brings informative educational programs on issues of law and other public concerns (such as climate change) to our community, including continuing legal education to area lawyers and other interested individuals.

Since this is not the best time to be holding public programs, WALS intends to provide a series of “Reflections on the Law during the COVID-19 Pandemic,” for educational purposes only. These are not intended to constitute “legal advice” to any person or group in any particular situation. Rather, in this time of pandemic, these offerings are intended to stimulate thought and refection before decisions are made by lawyers, HR personnel, employees, small businesses and others, in trying to do the “right thing” by their employees.

Accordingly, no employee, business owner, lawyer, or anyone else should rely on these “reflections” with respect to any particular planned employment decision, but should consult with their own attorney or legal adviser before making any decision of legal consequence.

Today’s question to consider is:

“Can an employer force an employee to come to work when the employee is fearful about ‘face-to-face’ interaction and wants to work remotely to ensure social distancing?”

The answer:

Maybe. Maybe not. But here are some pertinent reflections that may be relevant to the determination.

Employee safety laws, such as OSHA, do not appear to have any clear COVID-19 or other infectious-disease rules (except in the area of necessitating health care protective-gear) requiring any particular “non-health care employer” actions. However, most state statutes require an employer to offer a “safe place” of employment to its workers, and intentional subjection of an employee to an unsafe workplace may be actionable over and above the usual workers’ compensation protections for work-acquired illnesses (which, in any event, would have to be proven to have been acquired at work).

Thus, at first blush, the question would be whether any particular employer at the present time, in requiring employees to “come in to work,” would be offering employees a “safe-place” to work. The general rule is that an employee is required to follow a generally accepted work rule, so the broad answer is that an employee may be subject to discipline, up to discharge, for not following an order to “come in to work,” which rule would be considered, in the usual situation, a “prerogative” of management.

However, if there is a union at the company, this may be a matter for pre-determination, resolution, or challenge to any particular disciplinary action through the grievance-procedure route.

In a NON-Union work place, any challenge by an employee (who, for example, was fired for failing to “come in” to work as required by the company) that may be allowed by alleging violation of general law requiring a “safe place to work,” are probably going to be “fact specific” as to whether the particular employer involved was in fact taking precautions to deal with the virus threat. In this sense, finding whether or not the employer provided a “safe place” to work may implicate factors such as the “reasonableness of the employer’s decision.”

For example, if an employer has an office that reasonably assures general “social distancing,” it may be found to have been more reasonable to require employees to come in to work. Similarly, it may be found to be unreasonable not to allow employees to stay home when their work does NOT have to be done in a central office. Then too, an employer who is requiring everyone to come in to work better have made sure they have taken extra precautions with respect to any questionable routine close-quarter work practices, cleaning services, etc., in keeping with the recommendations of the scientific community and federal and state guidelines—like “social distancing.”

The point is, however, that there is no black and white standard that would make such a rule “to continue coming into work” ipso facto illegal, unless of course an order of the Governor or SOME OTHER LAWFUL AUTHORITY requires it. In that case, while there are many issues not covered here, as to lawful or constitutional scope of any such order or directive, the “reasonable” employer would be well informed to heed such order or directive.

Then too, other existing laws may be relevant, for example, COVID-19, will probably be found to be a “disability” under state and federal law when actually decided (See Benjamin R. v. Orkin Exterminating Co., 182 W. Va. 615, 390 S.E.2d 814 (1990), where Justice McHugh based the decision of the Court on the important “major life function of socialization”), which means that it would almost certainly be illegal NOT to accommodate any employee who the employer knew was or reasonably believed to be “in quarantine” because of COVID-19, or because they actually had it, by allowing them NOT to come to work for a reasonable time, and probably until a doctor can certify they were no longer a threat, etc. Remember, too, that mandatory paid sick-leave is being legislatively enacted at the present time, which will affect this question (see last paragraph).

So whatever the work rules your place of employment makes, employers can’t discriminate against people who have or are believed to have the virus AND MUST accommodate their condition. Also, age discrimination statutes would probably disallow any differing mandatory treatment of older, more vulnerable, employees that would actually cause them economic harm, although an employer allowing older employees as a group the option of voluntarily working from home without loss of pay is probably o.k., as it causes no harm to the older worker, and can be a reasonable factor in assuring those older workers have a safe place to work.

Finally, you may have heard that Congress has just passed a new law beefing up financing for states to pay unemployment benefits for employees laid off during the crisis, and which will require a certain amount of “paid” leave by companies employing under 500 employees for people in quarantine or suffering from the virus, OR for required child-care of an employee either suffering from the virus or caring for another family member, etc. These are all new regulations, as yet to be implemented, and any business should rely on their own lawyer or HR department to determine as to how and when to start to implementation.

Check back next week for Part 2 of Reflections on the Law during the COVID-19 Pandemic, by Patrick Cassidy.

A Labor of Love: The Reuther-Wheeling Labor History Archive

“There is no greater calling than to serve your fellow men. There is no greater contribution than to help the weak. There is no greater satisfaction than to have done it well.” –Walter P. Reuther

The Reuther-Wheeling Library was founded as a research and study center on the life, times, and thought of Wheeling, West Virginia native Walter Reuther. An important part of the library’s mission is to promote the literary works of local authors about the heritage, history, and culture of the city of Wheeling. The library also contains numerous titles related to economics, politics, labor history, social justice, human rights, education, and the environment. The library is maintained by the Wheeling Academy of Law & Science (WALS) Foundation and is located, fittingly, in the “State Cellar” of the First State Capitol Building, where West Virginia’s first governor, Arthur I. Boreman had his offices and where West Virginia’s ratification of the 13th Amendment to the U.S. Constitution, abolishing slavery, as well as the 14th and 15th amendments, occurred.

The Reuther-Wheeling Library contains several volumes on the life of Walter Reuther.

The Reuther-Wheeling Labor History Archive was added in May, 2017, and is dedicated to collecting, maintaining, preserving, digitizing, and making accessible to educators and researchers, photographs, documents, books, ephemera, media, and other artifacts related to the life and work of Wheeling’s native son, labor leader and human rights activist, Walter Reuther, and the Reuther family, as well as such material related to the history of organized labor, unions, and the working class in Wheeling and the Upper Ohio Valley region.

But why does Wheeling deserve to be the home of a labor history archive? And why Walter Reuther?
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Podcast: Jobs First Agenda Discussion of a New Energy Economy

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Transitioning to the New Energy Economy

On Thursday, October 5, 2017, the Wheeling Academy of Law and Science (WALS) Foundation invited all members of the community to participate in the discussion program, “Transitioning to the New Energy Economy.”

Forty people gathered at the First State Capitol to hear a program focused on the growth of jobs and opportunity in energy efficiency and renewable energy for our region and our coal mining communities.  A panel of experts in the New Energy Economy provided an overview of where we are now, and where we are headed, followed by an audience and panel discussion session.

Our panelists included:

Dan Conant, founder of Solar Holler. He has an MS in Energy Policy from Johns Hopkins and is a former advisor to the US Department of Energy’s SunShot Initiative. Dan partners with Coalfield Development, to provide WV coal workers access to education and work opportunities, and Rewire Appalachia enterprise, specializing in renewable energy training and jobs.

Evan Hansen founder and president of Downstream Strategies. Downstream Strategies offers consulting services to help build resilient communities, promote economic development, and protect the environment. Hansen received a B.S. in Computer Science and Engineering from M.I.T. and an M.S. in Energy and Resources from U.C.- Berkeley.

James Van Nostrand, Professor and Director of the Center for Energy and Sustainable Development at WVU College of Law. He received his LL.M. in Environmental Law from Pace Law School, his J.D. from the University of Iowa College of Law, his master’s degree in economics from SUNY at Albany, and a B.S. in economics from the University of Northern Iowa.

Sean O’Leary, Senior Policy Analyst with the West Virginia Center on Budget and Policy. He has authored numerous reports on working family issues, economic development, and state and federal budget and tax policy. Sean holds a B.A. in political science and economics and a Master of Public Administration from West Virginia University.

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Feature image courtesy Rosemary Ketchum


What is a Jobs First Agenda? Exploring a New Narrative and the Legal Framework to Effectuate It

What follows is a transcription of the Jobs First Agenda program presented on September 7, 2017 by WALS President Patrick Cassidy.
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Click here to listen to a podcast of the same program.

“My dad was a hard working coal miner as a young man, and a hard working steel worker for most of his life, and I’m sorry, but I will never believe what I heard from the titans of industry in my early years of practicing law, as to who was responsible for the loss of the steel industry, was my father.” -Pat Cassidy

Thank you all for coming tonight.

I know this is not great timing. Seven o’clock on a Thursday evening. But I appreciate your response. This is really the kickoff of a discussion series but I’m a little sorry to say that my presentation tonight will largely be in a lecture format, because I don’t know how to introduce this idea of the jobs first agenda without doing it this way. And those of you who know me know that my other career choice, up that road I did not go down, was a desire to be a philosophy professor. And so I still feel I’m somewhat of a frustrated old philosopher at heart. And I’m not going to read to you. But I do have to follow my notes closely because, unlike some other people you might see on TV who are able to speak without teleprompters, I don’t want to get into that kind of trouble. And so I have to refer to my notes from time to time.

But I do want to leave a little time at the end for some questions comments and I promise, along with our executive director Sean Duffy, that the rest of the series will not be in a lecture format, it will be more of a discussion group with the panelists. One of the moderators representing WALS will introduce the panelists and briefly pose some questions and then we’ll ask the panelists and you know we want input from the community. And we hope you’ll stay with us throughout the series or at least attend as many as you can because we want and need your feedback.

The jobs first agenda is an experimental idea we have been studying at our foundation for a number of years and are still studying. We want to know if it can work. If it can help solve or lessen the myriad problems and maybe even some crises facing our community and our nation today. And I don’t expect everyone to agree with what we are calling a Jobs First Agenda. That’s OK too. But we want to hear from you as we go along in this series, especially if you think our ideas are based on observed and experienced facts and not just opinions. So you may have some alternatives to our ideas that might be either incorporated in the agenda or even cause us to scrap it in favor of your ideas. And we want our discussions to be engaged in in a civil manner, which I know all of you people will do. And we do want to set one standard, and that is, I will quote Daniel Patrick Moynihan, our late great senator from New York, who said that, and you’ve heard this, I’m sure, before: “everyone is entitled to their own opinion but not their own facts.” So we hope to have a discussion based on facts, not political reasons, not political ideology, either from the left or the right, because we want this to be a non-partisan thing. We think that we can incorporate the best ideas from the left and from the right, and still come up with a workable solution — really a revolutionary solution–revolutionary, but a quiet revolution, one without guns, one without discord necessarily pitting people against each other. In any event the ideas underpinning our jobs first agenda have been plucked and borrowed from many sources: people — historical personages, institutions. Read more

Top Ten Features of A Jobs First Agenda

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Introducing WALS Commentaries Online

Welcome to the new online version of WALS Commentaries, published by the WALS Foundation.

The Wheeling Academy of Law and Science Foundation (WALS Foundation) is a non-profit community organization established in 2004 to promote educational programming and consulting in the areas of labor, local history and preservation, and equitable energy choices; and, in doing so, to promote local economic opportunity, employment, and job creation in the city of Wheeling and state of West Virginia.

Please visit our primary web site and our Facebook page.

The new WALS Commentaries is a web log produced by the WALS Foundation in the tradition of the printed newsletter published from 2006-2012. It will feature articles and stories that support the mission of the WALS Foundation. Our first post is coming soon. Please bookmark this page and check back regularly.