Comment on Ganulin . . . from Ganulin!

Around Christmas, I often blog about Ganulin v. U.S., the constitutional challenge to Christmas as a federal holiday. See. Is a Christmas Federal Holiday Constitutional? and Christmas and the Constitution. The posts have generated some nice dialogue, and I encourage people to chime in with their comments.

Well, I never expected to get a comment from the plaintiff, Richard Ganulin, himself! He sent me an email recently, noting that he came across my blog entries. He provided me with a very well thought out retort to my blog entry - his petition for writ of certiorari to the United States Supreme Court (available online here)(yeah, I realize he didn't draft it in response to my blog entry).

 He also directed my attention to James Kilpatrick's article on the case, Our Constitutional Christmas. Mr. Ganulin conveyed that he is not obsessed with the case, but still feels very passionately about the issue. He also thinks that removing the federal holiday would be beneficial to those who celebrate because "their holy day would again be holy."

I was very excited to receive his email, and continue to find this issue interesting.

Pennsylvania Martin Luther King Jr. Day Holiday Statute

Pennsylvania has a fairly extensive list of holidays. In fact, we have a whole title, Title 44, dedicated to "Legal Holidays and Observances." The section identifying the major holidays specifically identifies, "the third Monday of January, known as Dr. Martin Luther King, Jr. Day." 44 Pa. Stat. Ann. § 11 (West). Which, by the way, is today.

Westlaw's "Editor's and Revisor's Notes" explain that we swapped Lincoln and Washington's birthdays for President's Day and MLK Day in 1978:

The 1978 amendment substituted “the fifteenth day of January, known as Dr. Martin Luther King, Jr. Day, the third Monday of February, known as Presidents' Day” for “the twelfth day of February, known as Lincoln's Birthday, the third Monday of February, known as Washington's Birthday”.

We moved MLK day from January 15th to the third Monday in January in 1985.

Pennsylvania also recognizes MLK Day in its banking provisions as a "fixed" holiday that covered institutions "shall" observe. 7 Pa. Stat. Ann. § 113.

Fun fact: MLK is not the only individual with a holiday in Pennsylvania. We also celebrate (I use the term loosely) Commodore John Barry Day, Hubert H. Humphrey Jr. Day, Columbus Day, William Penn's Birthday, Rosa Parks Remembrance Day . . . and, of course, who could forget Rachel Carson Day in celebration of the "Mother of the Age of Ecology?" (May 27th - mark your calendars!).

For more history, check out my 2012 post on MLK Day (featuring a great Public Enemy video).

Annual Update: Christmas Holiday and the Constitution

Every year at about this time, I like to revisit the issue of whether a Christmas federal holiday violates the Constitution. The leading case on this issue is Ganulin v. U.S., 71 F.Supp. 2d (S.D. Ohio 1999), holding that a Christmas federal holiday did not violate the Establishment Clause. I just checked . . . and it remains good law for another year (although a trial court ruling in Ohio is not binding in other jurisdictions).

To see my take on this case and participate in a lively discussion, check out my earlier post: Is a Christmas Federal Holiday Constitutional? See also, my even earlier post: Christmas and the Constitution.This will most likely be my final post before Christmas - so Merry Christmas to all my readers and/or happy whatever-holiday-you-celebrate.

Friendly Reminder Re: Office Halloween Parties

Is your office planning a Halloween party? Or allowing people to dress up for the day? Chances are, the vaaaast majority of people will exhibit good taste and common sense. But, as a friendly reminder, people like this exist:

For my email subscribers, if the picture is not embedded, click here to see the picture online, along with some information (according to Gawker) about the folks who thought it would be a good idea to dress as a bloodied Trayvon Martin (in blackface - no, not just makeup to darken his skin tone - blackface) and Zimmerman. I'd like to believe they would at least be smart enough not to wear something like this to work . . . then again, they were apparently not smart enough to keep it off of social media (or better yet, forego the costumes altogether).

You're welcome.

The Great "Is Christmas Constitutional?" Debate - COTW #122

About this time of year, I like to revisit Ganulin v. U.S., 71 F. Supp. 2d 824 (S.D. Ohio 1999)(opinion here). The Court held that the federal holiday for Christmas did not violate the Establishment Clause of the First Amendment of the United States Constitution. I have covered this case in past years: Is a Christmas Federal Holiday Constitutional? and Christmas and the Constitution. Those posts have generated some insightful comments and lively debate, so check 'em out.

I continue to believe that Ganulin got it right. Some critics of my past posts decry the holiday as "majoritarian." Well, yeah - we incorporate democracy into our government in a number of ways. That alone, is insufficient to make the holiday unconstitutional. The issue is whether the holiday violates the establishment clause.

The Court actually relies on the majoritarian aspect of the holiday as part of its rationale. The Court is not establishing a religious holiday, it is merely recognizing the "public calendar" and the fact that (figuratively) nobody works on Christmas.

When government decides to recognize Christmas day as a public holiday, it does no more than accommodate the calendar of public activities to the plain fact that many Americans will expect on that day to spend time visiting with their families, attending religious services, and perhaps enjoying some respite from pre-holiday activities.

I think of it as akin to having Sundays off. Sure, Sunday is often considered the Sabbath and many people attend religious services - but at this point, it's just part of the public calendar. Offices are open Monday to Friday and we get Saturday and Sunday off.

For me, the game-winner is that the holiday requires absolutely nothing of employees but that they take a day off. They get the day off. That's it. They can do whatever they want. Yes, they can go to mass . . . or not. The government does not indicate that Christianity is "right" or that Jesus Christ is the son of God or take any religious position.

I'm sure there's no shortage of people ready to tell me I'm wrong though . . . so drop a comment! Let's make this the best "Is Christmas Constitutional?" debate ever!

Another Workplace Social Media Disaster . . .

One of the side effects of attending law school is a constant urge to search for legal issues everywhere. So, when a friend sent me this Metzger Cartoon (go ahead, click it and a one panel comic will pop up), I immediately questioned whether Santa was running a lawful workplace.

Do you see the problem? The reindeer pull a sleigh carrying Santa Claus. So, wouldn't Santa's weight impact the terms and conditions of their employment? Aren't Rudolph, Blitzen, Cupid, and Dancer all co-workers? It's no secret that the NLRB has been cracking down on employers who infringe upon employees' protected concerted activity via social media. When employees discuss problems with the terms and conditions of their employment (which they seem to be doing here) they are likely engaging in protected activity under the NLRA.

For bonus points, do you see any defenses? What if Santa's morbid obesity (700 pounds!?) constituted a disability? Could disciplining the reindeer be a lawful step toward preventing hostile work environment disability discrimination?

See how much fun this is!?

Don't forget to vote for Lawffice Space in the ABA Blawg 100!

Fourth of July Fun Facts

Happy Fourth of July! I'm taking a holiday, but here are some fun facts from previous Fourth of July posts:

• The 4th marks the birth of our country . . . but July 4th is also the day that we lost some of our founding fathers, with some telling final words - July 4, 1826: Famous Last Words.
• We all know July 4, 1776 was the day the Declaration of Independence was signed . . . right? Nope. Find out the true story here.
• We think of the Declaration of Independence as the birth of our nation . . . but did you know that it is also America's first employment law?

I hope everyone has a happy Fourth.

Image: Personal photo of Independence Hall in Philly.

Is February 29th a "Free Day" for Employers?

In a previous life, I was an IT consultant. One year, I had to work on February 29th. Always the team player, I took it in stride. But in my head, I thought "what a ripoff! Here I am, working on this extra day, and I'm not getting paid any extra!"

Two of my fellow employment law bloggers have explained this phenomenon in employment law terms: Dan Schwartz (here) and Jon Hyman (here). As they correctly note, employers don't need to pay salaried, nonexempt employees any extra money for the time they work on February 29th - a free day!

Not so fast! I can think of three reasons why this "free day" is just our collective imaginations:

1. Leap Year is Frequent and Predictable. We have a February 29th once every four years (technically, there are a few exceptions, but not worth the trouble to address). Employers know this when they make salary offers. Employees know this when they accept job offers. Accordingly, February 29th should be "priced in" to the employment agreement.

2. Salaried Employees Work Flexible Hours All the Time. Salaried employees don't get paid any overtime. So, in the non-leap years, employers can just assign approximately one extra day of work per year (spread out across the year). Employees will put in the same time commitment as if they came in that extra day on the 29th. The point here, is that it's not clear whether salaried employees are actually expected to put in an extra day's worth of work on leap years or not.

3. What Extra Day? Most salaried employees work on weekdays. According to this handy tool, 2010 had 261 weekdays. Wanna guess how many weekdays (including February 29th) in 2012? Yup, 261. I will concede, however, that last leap year (2008) had 262 weekdays, and 2011 only had 260 days - so there are some "extra" weekdays here and there.

So, next time you feel like you're getting ripped off by working on leap year (which I'm guessing will be 4 years from now), just remember: Your salary probably includes this day - in fact, you're probably getting "overpaid" in non-leap years; maybe you're working an extra day's worth of work in non-leap years but it's just spread out (instead of all on February 29th on leap years); and you often get that extra workday back in the form of an "extra" weekend day in non-leap years.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Martin Luther King Jr. Day

Originally published on January 18, 2010. Co-authored by my wife, Sharon R. Miles

Martin Luther King Jr. Day is a federal holiday celebrated annually, honoring the late Reverend, Dr. Martin Luther King, Junior. The holiday is observed each January on the third Monday, near the day of his actual birth, January 15. Approximately 30% of non-federal employers give workers the holiday off (updated stat and link 1/16/2012).

Although King was assassinated in 1968, the holiday was not officially introduced until 1983. The campaign to honor this leader in nonviolent civil rights activism started not long after his death. Michigan Representative, John Conyers introduced the bill to Congress that would make King’s birthday a federal holiday. The bill was voted on by the House of Representatives in 1979; however it lacked the number of votes needed to pass by five. Opponents believed a paid holiday for government employees would be too pricey and many believed the holiday would be unprecedented given that King never held a public office, unlike those honored with a federal holiday before him.

The King Center turned to the general public and corporate and artistic communities for support in moving forward with a day to honor King. It was on November 2, 1983 when President, Ronald Reagan signed the bill creating the federal holiday. The holiday was officially observed in 1986, but only celebrated in the District of Columbia and 27 states. Other states refused to accept the holiday. For example, in the state of Arizona that same year, a holiday had been declared by Governor Bruce Babbitt after a bill to create the holiday failed to pass in the Arizona legislature. In 1987, Governor Evan Mecham withdrew the holiday, believing that it was illegally established. New legislation finally passed in 1989, but opponents were successful in mandating a ballot initiative which resulted in a rejection by Arizona voters in 1990. In response, rap group, Public Enemy created their song, “By The Time I Get to Arizona,” helping bring attention to the issue. The holiday was finally approved by Arizona voters in 1992.

Today, Martin Luther King Jr. Day is recognized nationwide.

The aforementioned Public Enemy video. WARNING: The video generated some controversy for its apparent advocation of the assassination of Gov. Mecham. Lawffice Space does not condone violence.



Public Enemy - By the Time I Get to Arizona

In Honor of Constitution Day

On this day, in 1787, the United States Constitutional Convention signed the Constitution. We now observe this day as Constitution Day. In fact, it's an official U.S. observance:

(a) Designation.— September 17 is designated as Constitution Day and Citizenship Day. 

(b) Purpose.— Constitution Day and Citizenship Day commemorate the formation and signing on September 17, 1787, of the Constitution and recognize all who, by coming of age or by naturalization, have become citizens. 

(c) Proclamation.— The President may issue each year a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings on Constitution Day and Citizenship Day and inviting the people of the United States to observe Constitution Day and Citizenship Day, in schools and churches, or other suitable places, with appropriate ceremonies. 

(d) State and Local Observances.— The civil and educational authorities of States, counties, cities, and towns are urged to make plans for the proper observance of Constitution Day and Citizenship Day and for the complete instruction of citizens in their responsibilities and opportunities as citizens of the United States and of the State and locality in which they reside.

36 U.S.C. 106.

I have previously blogged about Constitution Day, and my annual "celebration" - I read the Constitution. For those of you looking for even further reading on the Constitution and the arguments over its ratification, I found the following extremely informative: The Federalist (Madison, Hamilton, and Jay), the Anti-Federalist Papers, and for those of you looking for something written after the 18th century, I enjoyed Pauline Maier's Ratification: The People Debate the Constitution, 1787-1788.

Image: I took that photo of Independence Hall in Philadelphia, Pennsylvania.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Happy Labor Day from Lawffice Space

Just a quick note to wish all of my family, friends, and other Lawffice Space readers a happy and healthy Labor Day. As I disclosed in a previous post, I've been a little busy following a completely different kind of labor. Please enjoy spending time with family and friends at BBQs (or however you celebrate). If you want to learn more about the true "reason for the season," however, please check out this brief history of Labor Day.

July 4, 1826: Famous Last Words

On July 4 of each year, we celebrate our independence. Of course, the Declaration of Independence is dated July 4, 1776 (although, contrary to popular belief, that's not the date it was actually signed). But July 4 also marks another important anniversary pertaining to our founding fathers and the birth of this nation. On July 4, 1826, Thomas Jefferson and John Adams both passed away.

Their last words are particularly interesting. Before Jefferson died, he awoke and asked, "This is the Fourth?" It was actually only the third at the time, but he did make it to the fourth - fifty years to the day from the date of the Declaration of Independence (some accounts claim he spoke after this, though it's not clear what was said).

Later that day, John Adams lay dying at the age of 92 when he spoke his final words, "Thomas Jefferson still survives." Despite some bitter feuding in their political careers, the two had become penpals by the end of their lives. They appeared to recognize, to some extent, their places in history. Adams, however, was obviously unaware that he was the last to go... just hours after Thomas Jefferson... on July 4, 1826.

For previous Independence Day fun on Lawffice Space, see America's First Employment Law, and my Philadelphia photo album (including pics of Independence Hall).

Images: Public domain from federal government, showing John Adams and Thomas Jefferson, the second and third presidents of the United States.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Memorial Day History and Law

On the last Monday in May, we celebrate Memorial Day. Over two dozen towns claim to be the birthplace of the holiday. Of course, only one is correct: Boalsburg, Pa. OK, I may be a little biased, having grown up (and now living) minutes from the town. But here's part of the story from Albrecht Powell at About.com:

The Boalsburg Memorial Day story begins in October 1864 when three residents -- Emma Hunter, Sophie Keller and Elizabeth Myers -- met at the cemetery adjacent to the Zion Lutheran Church [to place flowers on graves of loved ones who died in the Civil War]. . . . [B]efore the two women [Emma Hunter & Elizabeth Meyer] left each other that Sunday in October, 1864, they had agreed to meet again on the same day the following year in order to honor not only their own two loved ones, but others who now might have no one left to kneel at their lonely graves. During the weeks and months that followed, the two women discussed their little plan with friends and neighbors and all heard it with enthusiasm. The report was that on July 4, 1865 -- the appointed day -- what had been planned as a little informal meeting of two women turned into a community service. All Boalsburg was gathered there . . . and every grave in the little cemetery was decorated with flowers and flags; not a single one was neglected.

Other towns have their own stories of how the holiday began.

On May 5, 1868, the holiday was formally recognized in General Order No. 11 from Union General John Logan. Originally, the holiday was called "Decoration Day." In a concurring opinion in the Supreme Court flag-burning case (Texas v. Johnson), Justice Kennedy recognized that: "Countless flags are placed by the graves of loved ones each year on what was first called Decoration Day, and is now called Memorial Day." The Uniform Monday Holiday Act officially declared nine federal holidays (MLK Day and Inauguration Day were later added) and declared that Memorial Day shall be celebrated on the last Monday in May. 5 U.S.C. § 6103.

President Lyndon Johnson issued a proclamation in 1966 recognizing Waterloo, NY as the birthplace of Memorial Day:

Congress has officially recognized that the patriotic tradition of observing Memorial Day began one hundred years ago in Waterloo, New York. In conformity with the request contained in that concurrent resolution, it is my privilege to call attention to the centennial observance of Memorial Day in Waterloo, New York, on May 30, 1966.

Of course, as a loyal Pennsylvanian, I'll point out that 1866 is two years AFTER the Boalsburg story in 1864.

Image: Honor the Brave, Memorial Day, May 30, 1917 from Library of Congress. No known restrictions on reproduction.

This article originally appeared on Lawffice Space on May 30, 2010. Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Yes Pennsylvania, There is a Presidents' Day

Lawffice Space readers may recall two posts I published last year explaining that "Washington's Birthday" is a federal holiday and "Presidents Day" is not. See general history and a gentle criticism of some misreporting. Well fear not Pennsylvania, there is a Presidents' Day and it is today!

Pennsylvania has a statute designating holidays that specifically includes "the third Monday of February, known as Presidents' Day." 44 Pa. Stat. Ann. § 11. I find it interesting that Pennsylvania uses the possessive form, indicating that the day belongs to the presidents. By contrast, the federal holiday, Veterans Day, does not use an apostrophe indicating possession. The theory is that it is a day to celebrate all veterans (plural, not possessive). However, here too, Pennsylvania has designated it Veterans' (possessive) Day.

So, happy Presidents' Day Pennsylvania.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Is a Christmas Federal Holiday Constitutional? - COTW #21

The federal government officially recognizes December 25, along with nine other days, as a holiday. Federal statute provides: "The following are legal public holidays . . . Christmas Day, December 25." 5 U.S.C.A. § 6103. Is the government's recognition of a religious holiday, namely Christmas, Constitutional?

According to Ganulin v. U.S., 71 F. Supp. 2d 824 (S.D. Ohio 1999)(affirmed by the 6th Circuit) it is Constitutional. And, since we're closing in on Christmas, Ganulin is the perfect Case of the Week. I provided a brief summary of the case in last year's entry: Christmas and the Constitution. Recently, a reader offered some colorful commentary (see comments on the linked post) to which I will respond in this post.

He asserts: "Yet the fed govt named it 'christ'mas day. So, maybe the problem is . . . that they used one particular culture's cult figurehead to name it after!"

The Government Didn't "Name it" Christmas
Yes, I see the point that the statute includes the word "Christmas" and that the word has a clear religious connotation (aka "Christ"). But, as the Christmas Wikipedia entry notes, the date of December 25 may have been selected as early as the 4th Century (more than a millennium before the U.S. government existed)! And it was certainly called "Christmas" before the federal statute.

If the government were to take a random day and call it "Christ Day" then this argument would be more compelling. But the date and name simply didn't originate with the government. Admittedly, the statute does still acknowledge "Christmas" but that is in line with the Court's rationale, which I explain below.

"The Calendar of Public Activities"
If you read the Court's opinion it offers secular purposes for the holiday such as "accommodat[ing] the calendar of public activities" and "recognizing the cultural significance of the holiday." In short, the "public calendar" had a holiday before the government passed the statute, and that holiday was "Christmas."

As the Court notes, the days of the week are named for religious reasons. For example, "Thursday" comes from the Norse god Thor. I certainly don't take the statute's recognition of Thanksgiving as "the fourth Thursday in November" as an establishment of Norse polytheism. It just recognizes that the public calendar marks it as such.

There is No Mandate
Ultimately, the Christmas holiday doesn't require any religious activity or acceptance of any religion. At one point, the commenter asserts "I'm not trying to take away christmas [but] it shouldn't be rammed down our collective throats by federal mandate." But, the federal government doesn't "mandate" that you do anything. Literally, nothing. It's one of ten weekdays throughout the year on which federal employees generally don't have to come into work. The "Christmas" holiday doesn't require you to practice Christianity any more than Labor Day forces you to join a union.

Conclusion
While I certainly understand the concern over government mandates regarding religious holidays, I'm just not convinced that Ganulin got it wrong. I'm open-minded though, so if you have counter-arguments to the Court's position, please drop a comment.

Update (12/22/2010): Jewish author Jamie Katz has an interesting article along the lines of the "public calendar" theory in the Chicago Tribune: Yes, Virginia -  You Can Say 'Merry Christmas'

Image: Christmas tree at Rockefeller Plaza, New York, 2006. Author: Alsandro - Under Creative Commons Attribution ShareAlike 3.0 license.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Special Thanksgiving Case of the Week - COTW #17

With the holiday this week, I'm releasing the Case of the Week for Wednesday email distribution. The holiday to which I am referring is, of course, Thanksgiving. This week's COTW is a little different from the usual employment law fare. It is a Supreme Court case from 1992, Lee v. Weisman, 505 U.S. 577, holding (per the syllabus) that: "Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause." What the heck does this have to do with Thanksgiving?

Well, Justice Scalia penned a blistering dissent (does he author any other kind?) in which he reminded the majority that:

The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition. Illustrations of this point have been amply provided in our prior opinions . . . but since the Court is so oblivious to our history as to suggest that the Constitution restricts "preservation and transmission of religious beliefs ... to the private sphere," it appears necessary to provide another brief account.

Subtlety has never been one of Justice Scalia's strengths! He went on to provide some of that history and tradition:

Our national celebration of Thanksgiving likewise dates back to President Washington. As we recounted in Lynch:

"The day after the First Amendment was proposed, Congress urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.’ President Washington proclaimed November 26, 1789, a day of thanksgiving to ‘offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions....' "

This tradition of Thanksgiving Proclamations - with their religious theme of prayerful gratitude to God - has been adhered to by almost every President.

Indeed, George Washington's 1789 Thanksgiving Day Proclamation is replete with religious references to Almighty God, "that great and glorious Being," and the "great Lord and Ruler of Nations," but also praised the blessings of "civil and religious liberty." And courts to this day struggle to draw lines preserving the rights of individuals to thank God (or not), and prohibit the government establishment of religion.

For a brief history of Thanksgiving and how some of our other presidents marked and contributed to our modern Thanksgiving traditions, please read last year's Lawffice Space post, Thanksgiving as a Federal Holiday. Thank you for reading and regardless of how you celebrate the holiday, have a happy Thanksgiving!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Happy Veteran's Day!

By Sharon R. Miles
Originally published November 11, 2009

Today, November 11, 2010, commemorates the celebration of Veterans Day, the annual, federal holiday honoring all veterans who have served in the U.S. armed forces… and currently a trending topic on Twitter! Veterans Day is typically observed on November 11. However, if November 11 falls on a Sunday, the federal government designates the following Monday for holiday leave. If November 11 falls on a Saturday, then either Saturday or Friday may be designated for employee leave.

Veterans Day takes its roots in the signing of the armistice treaty, signifying the end of World War I. The armistice treaty was signed between the Allies and Germany in 1918, at the eleventh hour of the eleventh day of the eleventh month. President Woodrow Wilson declared an Armistice Day for the following year, November 11, 1919 and in 1938, Congress passed an Act (52 Stat. 351; 5 U.S. Code, Sec. 87a), proclaiming November 11 of each year a federal holiday, "a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as 'Armistice Day'."

Fifteen years later, inspired by his work with American War Dads during WWII, Al King, a shoe store owner from Emporia, Kansas, actively started a campaign to evolve the holiday into a day commemorating all veterans, not only those who served in WWI. As a result, a bill was pushed through Congress and signed into law by President Dwight Eisenhower in May of 1954, and in November of that same year, Congress amended the act to replace “Armistice” with "Veterans." Since then, the day has been known as Veterans Day in the United States.

Where and how we decide to celebrate Veterans Day is a personal choice. I hope each and every American takes a moment to remember those men and women who have fought and continue the fight to defend our country, here and abroad. I want to take this moment to extend my gratitude to all veterans. I also want to give special thanks to my dad, a former naval officer who served two tours in Vietnam. THANK YOU.

Sidenote: An explanation for why there is no apostrophe in Veterans Day.

Image: Library of Congress Public Domain: Crowd at burial ceremony of the Unknown Soldier in Arlington Cemetery, 1921 or 1922.

Happy Labor Day! - Labor Week on Lawffice Space

Well, it's Labor Day... and this is an employment law blog... so I guess we should celebrate. And celebrate we will. But a day is just not sufficient, so here at Lawffice Space we will be celebrating with Labor Week!

As today is a federal holiday (see 5 U.S.C. § 6103), we'll keep this post focused on the holiday itself. Last year, I wrote a history of Labor Day. This year, I'd like to focus on some great content provided by the Department of Labor.

For starters, Labor Secretary Hilda Solis recorded a "State of the American Worker" address, embedded here:



For my email readers, if you cannot see the video click here to view online. It's a pretty high-level overview with sound bites like, "I will not stop working until every American is back on their feet." It's still nice to hear directly from the Department on their views and goals. And she does identify some specific initiatives as well.

The Department also created a great page on Labor Day History, including a look back in photos. Did you know that the first labor day celebration was attended by 25,000 union members and their families, police were concerned about riots, and there were kegs in "every conceivable place?" Do you know the true origins of "Rosie the Riveter?" And who actually invented Labor Day? It's all on the DOL's tribute page.

Hopefully this whets your appetite for a week's worth of labor posts. Check back each day this week for a new post!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Memorial Day History and Law

On the last Monday in May, we celebrate Memorial Day. Over two dozen towns claim to be the birthplace of the holiday. Of course, only one is correct: Boalsburg, Pa. OK, I may be a little biased, having grown up (and now living) minutes from the town. But here's part of the story from Albrecht Powell at About.com:

The Boalsburg Memorial Day story begins in October 1864 when three residents -- Emma Hunter, Sophie Keller and Elizabeth Myers -- met at the cemetery adjacent to the Zion Lutheran Church [to place flowers on graves of loved ones who died in the Civil War]. . . . [B]efore the two women [Emma Hunter & Elizabeth Meyer] left each other that Sunday in October, 1864, they had agreed to meet again on the same day the following year in order to honor not only their own two loved ones, but others who now might have no one left to kneel at their lonely graves. During the weeks and months that followed, the two women discussed their little plan with friends and neighbors and all heard it with enthusiasm. The report was that on July 4, 1865 -- the appointed day -- what had been planned as a little informal meeting of two women turned into a community service. All Boalsburg was gathered there . . . and every grave in the little cemetery was decorated with flowers and flags; not a single one was neglected.

Other towns have their own stories of how the holiday began.

On May 5, 1868, the holiday was formally recognized in General Order No. 11 from Union General John Logan. Originally, the holiday was called "Decoration Day." In a concurring opinion in the Supreme Court flag-burning case (Texas v. Johnson), Justice Kennedy recognized that: "Countless flags are placed by the graves of loved ones each year on what was first called Decoration Day, and is now called Memorial Day." The Uniform Monday Holiday Act officially declared nine federal holidays (MLK Day and Inauguration Day were later added) and declared that Memorial Day shall be celebrated on the last Monday in May. 5 U.S.C. § 6103.

President Lyndon Johnson issued a proclamation in 1966 recognizing Waterloo, NY as the birthplace of Memorial Day:

Congress has officially recognized that the patriotic tradition of observing Memorial Day began one hundred years ago in Waterloo, New York. In conformity with the request contained in that concurrent resolution, it is my privilege to call attention to the centennial observance of Memorial Day in Waterloo, New York, on May 30, 1966.

Of course, as a loyal Pennsylvanian, I'll point out that 1866 is two years AFTER the Boalsburg story in 1864.

Image: Honor the Brave, Memorial Day, May 30, 1917 from Library of Congress. No known restrictions on reproduction.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Today is Workers' Memorial Day

Today, April 28, marks Wrokers' Memorial Day. It is a day to remember those who were injured, became ill, or even lost their lives in the course of their work duties. Unfortunately, we all received a tragic reminder of workplace safety risks earlier this month with the Upper Big Branch Mine disaster, which killed 29 miners.

Richard Trumka, AFL-CIO President, used the holiday to push for expanding OSHA (Occupational Safety and Helath Act) and other safety regulations. Specifically, he endorsed the Protecting America's Workers Act (HR 2067, S 1580), invoking the holiday's mantra, "Mourn the dead; fight like hell for the living" (attributed to Mother Jones).

The Obama administration has been pushing for ramped up OSHA enforcement from the start. While Lawffice Space is not a policy advocacy blog, the reality for employers is that some combination of new safety regulations and increased enforcement of existing regulations is coming. Regardless of your position, or opposition, we can all take a moment to remember those who lost their lives just doing their jobs and recognize it as a tragedy.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.