The Minutia of Record Keeping?


This snippet below is from the Guardian –

In a conversation with NBC journalist Chuck Todd on a range of criminal justice issues, Lynch said on Thursday that she does not support a federal mandate to report people killed by police.

“One of the things we are focusing on at the Department of Justice is not trying to reach down from Washington and dictate to every local department how they should handle the minutia of record keeping, but we are stressing to them that these records must be kept,” she said at the Washington Ideas Forum, hosted by AtlanticLIVE and the Aspen Institute.


Here’s what I think.

Whether or not a police department kills someone is not a part of the “minutia of record keeping.” 

If we as a people acting through the federal government cannot demand that law enforcement agencies tell us when they kill people, what powers do we have? Are we somehow getting into their “business” when we ask law enforcement to tell us about the minutia of record keeping concerning police shootings?

The only good source for shootings by law enforcement in the United States is the Guardian. Look at it here.  I shouldn’t have to go to a private web site to find criminal justice statistics.

Okay, I’m not a neophyte. I understand the drill. If we actually collect the data, it isn’t going to look good. I already know part of the story from previous research. Some law enforcement agencies have a lot of shootings while many agencies never kill anyone at all. And if that isn’t bad enough, who gets shot and why also varies dramatically from place to place. If you’ve been following the news, once again, you know who I am talking about, the mentally ill. They get shot by law enforcement regularly and under widely varying circumstances.

If the feds require law enforcement agencies to disclose their killings, the world of policing will come under a lot of scrutiny. It is in the interest of many departments not to have their shootings publicized. Why?

In the United States, policing varies dramatically. Some police departments do it right. They don’t get much publicity because competent, professional police departments tend to have fewer PR disasters. But there are “rogue” police departments where there are a lot of shootings, a lot of excessive force and regular charges of corruption. I suspect that a culture that encourages shootings has a downside in other parts of policing.

If the numbers are publicized – if every police shooting is scrutinized, there are going to be changes. As long as police departments are measured only by local or state standards, change is slow and haphazard but if every department is held up to national standards, many people will be surprised at how poorly many of these agencies stack up.

And that is why the feds should require mandatory reporting of law enforcement shootings, to bring national scrutiny to a national problem. This isn’t some book keeping issue. It is a vital issue of what kind of justice we believe in. When law enforcement kills, there is no trial, no peaceful resolution. These kinds of shootings should always be matters of necessity.

James Pilant

The GM Settlement

The GM Settlement

This is what it comes down to. After 124 deaths, General Motors in a deferred prosecution agreement pays the government 900 million dollars. GM has also set aside 575 million to cover private complaints.

The GM Settlement

If GM complies with the agreement, all criminal charges will be dropped in three years. The government says that pursuing criminal charges would have been difficult –

Bharara hinted that criminal charges would be difficult to bring in the GM case. This rationale pervades the White House. President Barack Obama, who for years taught Constitutional law at the University of Chicago, made the same weak excuse, telling 60 Minutes in 2011 that “some of the most damaging behavior on Wall Street, in some cases some of the least ethical behavior on Wall Street, wasn’t illegal. That’s why we had to change the laws.”

Wrong. Fraud is always a crime. Filing false statements under oath, transferring money by wire and mailing documents signed under penalty of perjury constitutes fraud.

David Cay Johnston writing for Al Jazeera is exactly right. What GM did was a series of crimes and they could have been successfully prosecuted. President Obama’s claim that “some of the least ethical behavior … wasn’t illegal” is simple nonsense. I’m an attorney. I can see massive fraud from a considerable distance. The level of deception here is massive. GM sold a defective product that had an often lethal problem to millions of American without warning when it knew the scope of the problem. They did it for years, and the trail of memos and other communications would have added up to a staggering case in which I have no doubt the defendants would have been forced to plead because there was no hope of acquittal.

Justice is supposed to be served by a 900 million dollar fine. How much money did GM make off of concealing this defect? Is there any relationship between the money made and the penalty collected?

In the Old Testament, it is said that blood cries for justice from the ground.

Will that blood be silenced by 900 million dollars? Will the families be made whole by GM’s funds? And is justice served by a fine? Or is this more similar to a medieval knight cutting down a mere serf and paying a small fine for the inconvenience?

When did giant corporations gain immunity for their crimes? When did justice become a routine profit and loss calculation in the accounting departments of these great multinationals?

Today 124 people lay dead at the hands of a major company. Tomorrow, it could be you or your spouse or your child or a parent because why shouldn’t they do it again and again and again?

They made money. I have no reason to believe that GM lost a dime on this transaction. I’m sure they profited. So, why not kill again?

Haven’t you read Milton Friedman? A CEO’s duty is to maximize shareholder value? Here’s a quote –

In a free-enterprise, private-property sys­tem, a corporate executive is an employee of the owners of the business. He has direct re­sponsibility to his employers. That responsi­bility is to conduct the business in accordance with their desires, which generally will be to make as much money as possible while con­forming to the basic rules of the society, both those embodied in law and those embodied in ethical custom.

It can be said that Friedman called for ethical behavior. I’ve never thought so. The word, conforming, is not obedience and “basic rules” are subject to interpretation. It could be argued that GM violated the basic rules of society. You can claim they violated the law and “ethical custom.” But do you really believe that? The law, embodied by the Obama Administration, says that fines are adequate and GM will go on making cars and huge profits in spite of ethical custom.  The “basic rules of society” appear to be little more than tissue paper to be discarded when used.

Our current administration talks a good game –

In a recent speech about efforts to focus on individuals responsible for corporate misconduct, Sally Q. Yates, the deputy attorney general, said that “Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation.”

But with this settlement, the administration has told the corporate world that this bold statement is nothing but PR, nothing but empty words.

We Americans, we who build and sustain this nation, we who follow the law deserve better.

James Pilant


Cool Ones and Lame Ones

Cool Ones and Lame Ones

There is a town where a boycott has been launched at a coffee shop. 

It’s not surprising that the West Asheville community is protesting and boycotting the coffee shop — especially the female members of it, who learned on Twitter that they’re not human beings so much as “an endless supply of hot young pussy,” or that “there are no ‘special’ girls,” merely “cool ones and lame ones.” The lames ones, according to the Holistic Game blog, “could help themselves immensely by reading a few classic novels and working out a little [but] they get attention regardless, so the motivation to better themselves isn’t present.”

Cool Ones and Lame Ones

So, let me get this straight. Two men create a successful business selling coffee but at the same time take to the internet to brag about how they use their business to pick up women for casual sex. 

This is a failure of business ethics. But bragging about picking up women wasn’t enough for these two entrepreneurs they also had to explain that what’s important about women are some of their component parts and whether or not the “experience” they provided was good enough to be chalked up as another story to be told online. 

Just wonderful. 

Maybe this is one of the grey areas I hear so much about? I am told that business ethics is full of morally ambiguous situations where educated minds can differ. That is just nonsense. Most business ethics problems are simple and straightforward tales of good vs. evil. 

Do you find much moral ambiguity in this one? Two entrepreneurs build a business, use business to get sex, post online about the women in a thoroughly disgusting and denigrating manner – business suffers. Where’s the moral complexity here? 

How about the other stories today? 

We’ve got a former hedge fund manager increasing the price of a lifesaving drug by a mind numbing amount, a food distributor sent to prison for 28 years for shipping contaminated food for years and we have an automobile manufacturer evading air pollution standards for millions of its cars by manipulating the software. Does any of that strike you as morally ambiguous? 

James Pilant

P.S. If you go to the Salon article in full, they have links to the web sites the men posted on. I don’t recommend it. The phrase, “degrading to women,” does not capture the full flavor of their writings. These are not gentlemen.

The Business Ethics Classic, Metropolis

The Business Ethics Classic, Metropolis

As an extra credit project my students can watch the silent film classic, Metropolis, and write a brief essay. They are to tell me in this writing whether or not the film would a useful teaching tool in my Business Ethics class.

There are never more than a few essays written. For this is not the hour and half American version. This is the two and half hour restored version. You might call it the director’s cut.

Here’s the link:

Metropolis (1927) Fritz Lang – Rescore by The New Pollutants – YouTube

An American film company paid for the film to be made but were deeply disconcerted by the powerful social message of the film and had it edited as a sort of halfway monster movie. Thus, the American public was denied the full impact, the power of this amazing motion picture.

This is not so much a motion picture as a prophecy. For today’s one percent closely mirror Fritz Lang’s pampered upper class besotted with their luxuries and unconcerned with the misery inflicted on their brothers buried deep in the earth sentenced by their birth in a lower social class to never ending toil for little benefit.

Not only does the film directly address the unfairness of economic exploitation, it is laden with Biblical symbolism from its references to Molag Bal to Maria’s transformation into the Whore of Babylon, one of the best segments in the film.

This is one of the greatest films of all time, well worth your while and a savage commentary on the perverse cruelty of an economic system where so many labor for so little.

Hidden Dangers!

Hidden Dangers

At the bottom of the page are four documentaries. They are listed not in the order in which they appeared on television (BBC) but chronologically by era – Tudor, Victorian and Edwardian. Please note there several hundred years between the Tudor and the Victorian but, you know, “television.”

006-1These documentaries are significant in terms of business law. For one thing, they demonstrate social change. If you watch the films you will note that while women were treated badly during the Victorian era, the sufferings of women in the Tudor period are appalling.

For another, these are largely pre-regulation societies, and I’m referring directly to business regulation. You’re going to see electric companies simply making up the rules as to proper voltage, insulation and wiring as they go along. You’re going to see food adulteration; sour milk made to taste okay but still sour and bread that appears nourishing but is actually full of inert filler. You’re going to see beauty products that kill, maim and disfigure women. It would not be incorrect to say that the idea of regulating business developed because of all these deaths over many years.

These documentaries are also windows into the past. If you have been in one of my classes, you know that I am a fierce critic of television portrayals of American history. Often overly dramatic, these television shows portray women very much as they live and act today, not to mention having an incredible focus on beautiful outfits. Women did not act in the past as they do now. They were very limited in how much participation in any form of social activity they were allowed and they were certainly almost always placed at a safe distance from power. That some women were able to be influential should not be considered as proof that women were influential but as amazing exceptions to the general rules. For almost all women through almost all of American history, they were relegated to the “women’s” sphere. And as to the glamorous clothing portrayed in these TV shows and movies, a lot of women’s clothing styles in the past were ugly and bizarre. It takes tremendous effort on the part of clothing designers to make this stuff look good. And this is because imposing ridiculous, nonsensical and cruel standards of beauty on women has never gone out of style.

I hate these portrayals because when there is a strong implication that women were always vital, respected members of society, this implies that no action was really necessary to give women a fuller role in society and belittles the terrible trials suffered by women who advocated for a more equal and better world. And I don’t like the emphasis on fashion and clothes because it implies a level of sophistication and beauty for past eras of crass stupidity, rampant disease, and moral degradation as well as high levels of illiteracy and superstition.

So, have a look at several bygone ages and see how other people have lived and suffered.

James Pilant


Hidden Killers of the Tudor Home BBC Documentary 2015 – YouTube

Hidden Killers of the Victorian Home – YouTube

New Hidden Killers of the Victorian Home – YouTube

Hidden Killers of the Edwardian Home – YouTube


The Problem with Re-training

The Problem with Re-training

It is almost a drumbeat, what American workers need is more education, more technical and skill based education to fill the jobs coming open today. 

The Problem with Re-training
The Problem with Re-training

There is undoubtedly a certain amount of truth to this. But there are other factors in American jobs, in American hiring, to call much of this re-training into question. I have serious doubts that re-training can be successful without some necessary policy changes at the national level.  

The policies that made it easy and profitable to move American jobs overseas are still in place and, in fact, with the new TPP (Trans Pacific Partnership), it will be even easier to move jobs overseas. 

Picture yourself as a corporate executive. You’re a CEO and you have built a company with highly skilled workforce. You get a salary of about 250K a year and you have directly owned stock worth about a half million and an option to buy about two million more. Your company pays around fifteen million a year and has profits of around thirty five million. 

You have 120 workers who were trained to do these technical tasks at a local college under the auspice of a state mandate to train workers in direct response to local needs. You and your investors asked for the college to focus on the kind of training you needed and the college responded. You received grants from the state and the federal government to start and develop your business of around seven million dollars and they required you to operate in the state and in this country. However, this requirement was for five years and that time has expired. 

If you move the jobs overseas, you will be allowed to deduct all of the moving expenses. So, the actual move will cost you little or nothing.

The company’s stock may well double in value as the move will be fully publicized in the financial press. Speculators will buy up the stock and the value will probably rise as much at least as much as 50%. That means that your half million in stock will become worth three quarters of a million and do I need to talk about the stock options? – The potential profits are enormous. 

If that isn’t enough there are enormous tax advantages in moving your business outside the United States. Here’s a quote from the web site – Sovereign Man: 

However, the real tax advantage from running an offshore company as a US citizen doesn’t come from direct tax savings. It comes from tax deferment, meaning you postpone the payment of taxes into the future. If you run a business overseas and reinvest profits within the company you can defer taxes indefinitely. Let’s say you have a profitable company overseas. Now imagine that instead of paying taxes on your profits every year you can reinvest that capital in your offshore company every year for 30 years, and only pay taxes if you decide to sell the company after 30 years. Being able to reinvest your capital tax-free combined with the power of compound interest makes this a truly exceptional opportunity.

So the government subsidizes on an enormous scale the movement of businesses overseas and for those businesses to stay there. 

It is very difficult to move a business overseas and not make a profit. You can be fairly incompetent and still make a lot of money. In fact, financially the move may not make any financial sense at all. You may not be able to find the kind of skilled labor you need. You may not even be able to generate a profit with the limitations of the foreign supply chain. But for those quarters of the year that you were moving and during that period of stock speculation, a lot of money was made and business people in America are not trained to look at the long term but the next quarter. 

How will our re-training of American workers make a long term difference in their lives when the CEO, the Board of Directors and the Stockholder have a strong financial interest in moving the company once it is established? And there is the additional factor that any company remaining in the United States is in competition with American companies that have already moves overseas and are now largely relieved of their tax burden. How will they be able to compete without pushing down wages or, perhaps, even moving overseas themselves? 

And if those who have undertaken the arduous task of being trained and re-educated do find a company that offers them good jobs, what kind of salary and benefits can they expect when they are subject to the downward wage pressure that this international job movement creates? What kind of job security will that be? 

James Pilant

the Fighting T

For My Students, The Poisoner’s Handbook

The Poisoner’s Handbook – The Standards for The Rest of The America – YouTube

I had the wonderful pleasure of seeing this film last night. It’s an amazing exploration of the history of poisons and poisoning in New York from the period of the 1920’s to the 1950’s.

p0075-imageAnyone, with any interest in Business Ethics or more simply, Business Law, will find this documentary utterly fascinating.

Watching this film will help you develop an understanding of how it came about that the federal government regulates food, cosmetics, industrial chemicals and medicine. Modern economic regulation was not inevitable. There were people and events that shaped the thinking of those generations. Understanding this and getting a grip on the history of those times enable one to understand what would happen with the abandonment of these regulations today.

For my students reading this post –

Now, you don’t have to watch it. There is no extra credit. Watching documentaries, reading and thinking are part of the pathway to becoming an educated and full human being. If your education only takes place in the classroom or when you are doing homework, then once you leave school, it stops. The quest to be a powerful and understanding individual should not stop with a diploma and the willingness to take time and effort to continue that quest is one of the ways, you can set yourself apart from those who look at the world of the philosophy, art, music, the sciences, etc. as just work, an unfortunate labor they must do to get a diploma and a job.

You are member of a new and vibrant generation upon whose shoulders the responsibility for future of this nation rests. Working to be exceptional, putting for the effort to be the best at what you do, will be good preparation for the challenges ahead of you.

James Pilant

The End of Subcontracting as We Know It?

The End of Subcontracting as We Know It?

This afternoon the National Labor Relations Board ruled that in many cases an employee of a sub-contractor is joint employee of both the sub-contractor and the contracting company.

The End of Subcontracting as We Know It?

How do you determine who is joint employee? It would appear that the board is going to use some of the same standards used to determine whether someone is an employee or an independent contractor.

It’s about time.

The practice of sub-contracting janitorial services, etc. has long been a cover for labor abuses. Companies have been using sub-contracting to evade labor laws and avoid the consequences of poor working conditions and sub-standard pay.

Can I document this kind of abuse? How about hereherehere or here?

We’re talking about using sub-contractors to commit fraud in non-profits, government contracts and Medicare. We’re talking about using sub-contracting to create sweat shop conditions while providing deniability to the principal company.

This was long overdue and it is of critical important because this kind of subcontracting is almost an endemic practice by American businesses. It’s about time that an employee of a company employed through what is essentially a shell company is considered an employee of the main company.

James Pilant

From the NLRB web site:

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so. 

From The Hill:

The National Labor Relations Board on Thursday handed down one of the biggest decisions of the Obama presidency, ruling that companies can be held equally responsible for labor violations committed by their contractors.

At issue is whether waste management firm Browning-Ferris is responsible for the treatment of its contractor’s employees. The Houston-based company hired Leadpoint Business Services to staff a recycling facility in California. 

The labor board determined Browning-Ferris should be considered a joint employer with the Phoenix-based staffing agency. As a result, the company could be pulled into collective bargaining negotiations with those employees and held liable for any labor violations committed against them.

This is a sharp departure from previous labor laws that hold companies responsible only for employees who are under their direct control by setting their hours, wages, or job responsibilities. Companies could avoid those requirements by hiring staffing agencies and subcontractors that deal more closely with the workers.

Work Hard or Go to the Right School?

Work Hard or Go to the Right School?

Many Americans, probably most, belief in merit. They believe that if you work hard, do the right thing and achieve that they will be rewarded and that reward will be in some relation to the effort put out.

But is merit actually rewarded?

29There is strong evidence that we live in a two tiered society. Two groups of people, one a group of the very well off are able to afford the finest private schools for their children as well as many other advantages. The other, those whose children are relegated to the public or charter school systems will almost never rival the success or income of the first group.

Currently there is a Ivy League Prep School under a moral cloud for the male student’s custom of scoring points by having sex with the a certain of co-eds. I am unhappy that this is apparently taking place. But there was more upsetting news in the article. What I then read is quoted at the bottom of the page but let me pull a section out.  –

Secretary of State John Kerry graduated from St Paul’s in 1962, alongside former FBI director Robert Mueller. Doonesbury creator Garry Trudeau is an alumnus as are 13 US ambassadors, three Pulitzer Prize winners, two World Series of Poker winners, actor Judd Nelson and sons of the Astor and Kennedy families, according to the school’s website.

This is where the one percent go. This is where the connections that lead to wealth, influence and power are made. This is the difference between struggling to make a living and a golden road of unending triumph.

Perhaps this doesn’t disturb you. Maybe you believe that you have earned your station in life?

But I am a teacher. I have college students who I am very proud of. And I have every reason to be proud of them. Every day I teach I see their obvious intelligence, their willingness to do more than necessary and an understanding that there are things that are very wrong in our society and that they will be called upon as a duty to remedy these failings.

And not for one moment at any time, do I consider my students to be less talented, less motivated and lesser people that the privileged few who have the opportunity to attend St. Pauls.

Nevertheless, I am aware of the tragedy clearly expressed here. Merit is not being rewarded. Parental income is being rewarded. Can there be anything clearer thatn that success in this society is only partially based on merit if it carries any weight at all?

Not one of my students, no matter how talented, no matter how kind, how genuine, how hardworking or intelligent is likely attain the success of the worst student at this prep school.

That’s wrong.

The very idea of business ethics implies merit. It implies that you hire based on capability. It implies fairness and square dealing, honesty in negotiation and a desire for mutual benefit.

I have met business people who roll their eyes when I say these things and look at me with the contempt one would have for a foolish child.

I welcome their contempt. I welcome their disdain. There is some justice in this world and a final justice in the next. I have faith in the necessity of the one and the inevitability of the other.

My students should have the same chance as those that go to elite prep schools. In fact, we should all be judged by our individual merits rather than who are parents are and what school we went to.

And when businesses hire on any other basis than merit, they have failed a fundamental test of business ethics.

James Pilant


Rape case puts focus on elite prep school’s alleged sexual tradition | US news | The Guardian

Founded in 1856, St Paul’s is an Episcopal school nestled on 2,000 pastoral acres (800 hectares) on the outskirts of downtown Concord, New Hampshire’s capital. It enrolls about 530 students and admitted girls for the first time in 1971. Tuition, room and board currently totals $53,810.

The school belongs to the Eight Schools Association, a sort of Ivy League for prep schools in the US north-east.

Secretary of State John Kerry graduated from St Paul’s in 1962, alongside former FBI director Robert Mueller. Doonesbury creator Garry Trudeau is an alumnus as are 13 US ambassadors, three Pulitzer Prize winners, two World Series of Poker winners, actor Judd Nelson and sons of the Astor and Kennedy families, according to the school’s website.

The school also has a robust international presence: 17% of the 2014-15 class came from 25 countries and notable alumni include Bernard Makihara, the former CEO of the Mitsubishi Corporation, and Edmund Maurice Burke Roche, a Conservative member of the British Parliament and the maternal grandfather of Diana, princess of Wales.

via Rape case puts focus on elite prep school’s alleged sexual tradition | US news | The Guardian.

Cooked Like a Tuna

Cooked Like a Tuna

i_236Three years ago, a worker at a tuna plant was slow cooked to death in a giant pressure cooker with six tons of tuna. (Please read the brief selection from the Guardian below my commentary.) The federal government has a surprising number of rules about the necessity of not killing your employees. In this case the rules being dealt with are the “lockout tagout” rules and cover employment situations where such precautions are necessary like the 12,000 lb. capacity ovens at Bumblebee.

Some writers on the web have pointed out the similarities of this incident to one of the stories from Upton Sinclair’s The Jungle. This is from the end of the book’s Chapter 9 –

... Worst of any, however, were the fertilizer men, and
those who served in the cooking rooms. These people could not be shown
to the visitor,--for the odor of a fertilizer man would scare any
ordinary visitor at a hundred yards, and as for the other men, who
worked in tank rooms full of steam, and in some of which there were open
vats near the level of the floor, their peculiar trouble was that they
fell into the vats; and when they were fished out, there was never
enough of them left to be worth exhibiting,--sometimes they would be
overlooked for days, till all but the bones of them had gone out to the
world as Durham's Pure Leaf Lard!

Of course, the feds took little interest in such things at the time, The Jungle, was published.

There are many today who sincerely believe that businesses will self-regulate if the feds would only step away and allow the invisible hand of the free market to rule. This is one of the beliefs held by Milton Friedman in what must be considered one of his more comedic moments. The idea that humans will become kind and good and willing to suffer monetary loss for worker safety if only the government would step away is more appropriate for small children than adults with experience of a capitalist society.

James Pilant

Bumble Bee Foods settles for $6m in death of worker cooked with tuna | US news | The Guardian

Jose Melena, 62, died three years ago in a 270F oven at the seafood company’s Santa Fe Springs plant after a co-worker mistakenly believed he was in the bathroom and filled a pressure cooker with six tons of canned tuna.

“This is the worst circumstances of death I have ever, ever witnessed,” said deputy district attorney Hoon Chun, who noted he had tried more than 40 murder cases over two decades. “I think any person would prefer to be – if they had to die some way – would prefer to be shot or stabbed than to be slowly cooked in an oven.”

Bumble Bee, its plant operations director Angel Rodriguez and former safety manager Saul Florez had each been charged with three counts of violating Occupational Safety & Health Administration rules that caused a death.

via Bumble Bee Foods settles for $6m in death of worker cooked with tuna | US news | The Guardian.