Lawprof David Trubek tries to fathom the furlough here at The University of Wisconsin.

You may have heard of Governor Doyle's plan:

The Governor’s furlough mandate, established in response to the State’s projected budget shortfall, requires an effective cut in pay for all full-time, 12-month employees equivalent to 16 days over the two-year period July 1, 2009 through June 30, 2011. The resulting furlough time off (FTO), required by the Governor and approved by the State Legislature, is required for all State and University employees, regardless of the funding sources used for their individual salaries and benefits. The mandatory furloughs result in a 3.065% annual pay reduction.

What's been hard for us faculty members to understand is not the reduction in pay but the requirement that we refrain from working on particular days, as my colleague David M. Trubek writes here in email that he's given me permission to republish.

The Tale of Purloined Work: Humpty-Dumpty Cracks the Case

Alice laughed. "There's no use trying," she said: "one can't believe impossible things."

"I daresay you haven't had much practice," said the Queen. "When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast." (Through the Looking Glass, Chapter 5)

Everyone at The University of Wisconsin will have their pay cut by about 3% and will be “furloughed”—told they do not have to work—for a corresponding period of time. But it turns out that we not only don’t have to work, we are being told we cannot work. The guidelines ban any kind of work during furloughs, anywhere. This means that even if you are at home you are not supposed to read professional material, get and send emails, make calls, use a smart phone, etc. Employees who violate the work ban can be disciplined.

Some people think this rule is irrational, impractical and unjust. Irrational because no one is harmed if we choose to work even if we are not paid. Impractical because of the way many of us work in many locations seamlessly combining work and leisure and using electronic media of all types. Unjust because if people place a high value on work, the policy not only takes away some of our pay; it also takes away working time we value for itself.

Because I am troubled by this policy, I set out to find out how we ended up with what seems like an absurd rule. I did some internet research and think I may have discovered the tortured path that led to the work ban. Because it felt that we, like Alice, had fallen down the rabbit hole, I also sought guidance from Lewis Carroll’s Alice in Wonderland. Here is what seems to have happened:

1) The Fair Labor Standards Act (FLSA) has two categories of employees: exempt and non-exempt. An exempt person must be paid their full salary for any week they work, however many hours they actually put in. If an exempt person is furloughed, they would still have to get full pay. Non-exempt employees, on the other hand, can have their pay reduced pro-rata with a reduction in their hours. People in “learned professions” are exempt if they earn more than $455 a week (whether paid on an hourly basis or not), have specialized education, and do work that requires advanced knowledge in a field of science and learning.

2) Needless to say, faculty and some other academic personnel are classified as exempt. If the rules governing pay for exempt employees were to apply, the UW would not be able to get salary savings from furloughs because the law requires they be paid in full no matter how many hours they work.

3) Since that would defeat the whole purpose of the plan, the only solution is to turn an exempt employee into a non-exempt employee. Since classification depends on the level of education and the type of work people do, you might think this cannot be done by the stroke of a bureaucratic pen. But, remember: we are down the rabbit hole where impossible things are done every day. So, it appears that the University is going to temporarily declare that teachers and other exempt employees are non-exempt for the time period in which the furlough falls. Then, it will specify a number of hours they should work. This will be less than the number of hours they normally would work so it will be OK to cut their pay proportionately.

4) But now we come to Catch 22 (even in Wonderland there are catches). If a non-exempt worker puts in more than the hours specified, the FLSA requires that they be paid overtime. So, if the goal is to reduce everyone's pay, these workers not only have to be told that they only have to work fewer hours: they must be kept from exceeding that number of hours lest they trigger a legal claim for overtime. And that is the source of the guideline that tells us we cannot do any kind of work as well as the requirement that people must certify that they did not work.

In Wonderland all this seems very sensible. But isn't it based on an impossible thing? The FLSA's tests for which status one falls in are objective. One is exempt if one has a certain type of training and does a certain type of work and it doesn’t matter whether the employee is paid on an hourly or salary basis. So since the nature of our education and our work hasn’t changed, and merely putting us on hourly pay for this period cannot affect our classification, how can the state reclassify us as non-exempt?

To answer that, I refer you to Humpty-Dumpty:

When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - - that's all."
(Through the Looking Glass, Chapter 6)

Was Michael Jackson murdered?

I used that headline the day after the death was reported, and today I see "LAPD not ruling out homicide in death of Michael Jackson, top cop says":

Depending on "corroboration from the coroner's office as to the cause of death," [Police Chief Bill] Bratton suggested the investigation could lead to criminal charges. Detectives are focusing on five doctors who had treated Jackson in the past and whether they supplied him with the powerful sedative Diprivan.

Bratton is certainly not saying that the doctors may have intentionally killed Jackson.

The 7th Circuit reinstates the case challenging the Wisconsin diploma privilege.

The case is Wiesmueller v. Kosobucki.

Under SCR 40.03, a diploma from an ABA-accredited law school whose curriculum includes the specific study of Wisconsin law is sufficient evidence of competency to practice in Wisconsin without a bar examination.

A class of recent graduates from ABA-accredited schools outside Wisconsin who seek a law license in Wisconsin argued that the privilege infringes on the Commerce Clause because only graduates of the law schools at Marquette and the University of Wisconsin benefit from it.

The Wisconsin Attorney General, defending the diploma privilege, has argued that the privilege is not discriminatory because of its availability to residents of any state who attend a school where Wisconsin law is taught. And if it does have an effect on interstate commerce, it is outweighed by the state’s interest in competent lawyers who know Wisconsin law, the attorney general asserts.

In its opinion, the court of appeals said that the district court’s dismissal of the action left it in “an evidentiary vacuum.” The plaintiffs had been appealing that order issued.

The court indicated that the plaintiffs should build the evidentiary record before the diploma privilege’s effect on interstate commerce can be assessed.

“[S]uppose – a supposition not only consistent with but actually suggested by the scanty record that the plaintiffs were not allowed to amplify – that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbus, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois (which happens to be within a stone’s throw of Wisconsin, as are the three law schools in Minneapolis),” the court wrote.

“That would suggest that the diploma privilege creates an arbitrary distinction between graduates of the two Wisconsin law schools and graduates of other accredited law schools. And it is a distinction that burdens interstate commerce,” the court concluded.