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Last week's column sparked lots of emails ... from the incarcerated

I enjoy hearing from readers of my column. I’m often surprised at what strikes a chord with people and last week was no exception: I received more emails from readers than any of my other previous columns. Last week I wrote about the United States’ number one ranking for incarcerating its citizens. Utah, while having the estimated incarceration rate of North Korea (620 per 100,000 people), is still well below the more disgraceful national average of 910. Most of the states with the lowest incarceration rates are in New England with Maine having the lowest at only 350 in custody per 100,000. Before you despair too much about our state, Utah’s overall correctional supervision rate (people in jail or on court-supervised probation) is the third lowest in the country with only Maine and New Hampshire having fewer people per capita being governed by their criminal justice system. Now, I'm a bankruptcy attorney, not a criminal defense attorney. I’m not in a position to raise a ruckus and righteously defend the wrongfully accused, although finding the right criminal defense attorney is vital for anyone charged with a crime. I am also not sociologist, but the question comes up — why does the United States have such a high incarceration rate? As with any complex system, the answers are multi-faceted, nuanced, and highly interdependent. Yet certain factors seem to make the United States particularly prone to locking up its own. The American idea of freedom often pits the individual versus the community, and crime by definition is an individual who acts against community interests. The politicization of criminal law also adds gasoline to the fire of American individualism because it creates an us versus them mentality that leads to incarceration for nonviolent crimes, minimum mandatory sentencing, “three strikes” laws, and incarceration for simply being different. “Give us your tired, your poor, your huddled masses, yearning to be free” is the motto on the Statue of Liberty, but the unfortunate addendum and the political discourse seems to be “so we can lock them up and eventually kick them out.” The violent racial history of the South shows in the incarceration rates. The Southern states have double the rates of incarceration compared to the rest of the country. Just a random plucking of statistics to prove my point, Alabama and New York state have close to the same violent crime rates, even though Alabama incarcerates almost twice as many people. With more people locked up, Alabama remains as violent as New York state. Yet, I don’t mean to suggest that race is the only reason or even the major determining factor. The differences are regional and I believe tied to different regional philosophies and histories. As I mentioned earlier, New England has the lowest criminal supervision rates in the country, along with Utah. The Deep South of the Confederacy has the highest. Utah acts more like New England than the Western states surrounding us, which all have criminal supervision rates double Utah’s. History and community philosophy certainly seems to play a role. Just 150 years ago, the Deep South was being defeated in a war. Violence always plays out in unexpected ways even a century and a half later. The shootings this week in Virginia of two white reporters by a black man was in part a response to the white man who shot and killed nine black church members in Charleston, South Carolina just two months ago. The Virginia shooter reportedly faxed a statement to ABC that said among other things, “What sent me over the top was the church shooting.” The church shootings in South Carolina led to the symbolic lowering of the Confederate flag at the South Carolina state capitol just last month. Violence to the communal body perpetrates more violence. The South is struggling to get out of a violent past, but we should all remember that incarceration itself is a violent act against the individual. On the flip side, the pioneers that settled Utah started out in upstate New York about 175 years ago. It probably isn’t surprising that some of New England has rubbed off on Utah. It would explain things like Orrin Hatch’s long time cooperation and friendship with Ted Kennedy, Mitt Romney being elected governor of Massachusetts, and most recently Orrin Hatch teaming up with the new senator from Massachusetts, Elizabeth Warren, for the Invest for a Healthy Future Act to fund scientific research. The New England culture’s ideas about community and caring for your own migrated across the plains with the pioneers and it shows up in how we treat those accused of a crime in Utah. The real struggle to lower incarceration rates begins by developing a society and a culture where people feel like they belong and will be protected by the society. Even the most violent of gang members won’t attack gang members within the gang, unless the gang’s rules are breached. The trick is realizing that we are all in this legal soup together, and making the punishments for misbehavior feel just, not just for the victims, but for the accused, should be our goal. And in case you were wondering, all your fellow readers of the Ogden Standard Examiner who emailed me about last week’s column — they were all incarcerated. E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or creditcorrection@gmail.com.

jobs

In landmark case, labor board votes to redefine employee-employer relationship

WASHINGTON — A federal labor board voted Thursday to redefine the employee-employer relationship, granting new bargaining powers to workers in an economy increasingly reliant on subcontractors, franchisees and temporary staffing agencies. The decision by the National Labor Relations Board could upend the traditional arms-length relationship that has prevailed between corporate titans such as McDonald’s and its neighborhood franchises. And it comes as concerns are growing about a generation of new Internet-fueled business such as Uber and Lyft that depend heavily on independent contractors that often do not have the benefits and protections of full-time employees. In a case that drew intense lobbying by both business and union groups, Democratic appointees on the panel split 3-2 with Republicans to adopt a more expansive definition of what it means to be an “joint employer.” The decision makes it more difficult for companies to avoid responsibility for the treatment of employees by outsourcing work to others. In doing so, the panel sided with labor advocates and academics who have described an increasingly fissured economy, in which whole industries have been built on business models that offer workers few of the protections of a traditional employer relationship. “With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances,” the board said in a release accompanying its decision. The board’s action is just the latest to tackle the trend. The Department of Labor has cracked down on employers who misclassify workers as independent contractors, and the Occupational Safety and Health Administration has directed inspectors to consider whether principal employers might be at fault for the safety violations of their subcontractors. Courts, meanwhile, have been scrutinizing companies like FedEx and Uber for their use of contractors. Employers are pushing back. Businesses that might be subject to the new joint employer definition have warned that it could undermine established business practices that have kept the U.S. economy competitive by holding down labor costs. As a result of the decision, some businesses may try to legally distance themselves from their partners to avoid joint employer status, but others may find they need to exert more control. Corporations are “trying to have it both ways — have the benefits of the control, and not the disadvantages,” said Timothy Glynn, a professor at Seton Hall University Law. “Where I think it would be very difficult to give up control is circumstances where there’s some exacting need for quality, timeliness, or consistency in the product.” Like a fast food franchise, for example. While the case did not address franchising directly, the new standard will apply in a major series of cases involving McDonald’s scheduled for arguments before the NLRB in the fall. The International Franchise Association has been lobbying against a change in definition for more than a year, arranging public hearings, airing ads, and rallying franchisees to make politicians aware of the decision’s potential implications. “The Board’s tortured analysis will undoubtedly be met with skepticism and will be rejected by local franchise owners, legislators and, ultimately, the courts,” said IFA president Steve Caldeira in a press release. “IFA and its allies are asking Congress to intervene to halt these out-of-control, unelected Washington bureaucrats to preserve the established joint employer standard.” Congressional Republicans have already obliged, attaching a rider to the federal budget that would prevent the implementation of a new joint employer standard. Responding to the decision, House Education and the Workforce Committee Chairman John Kline, R-Minn.,) vowed to “roll back” the NLRB’s shift, while Senate Health Education Labor and Pensions Committee Chairman Lamar Alexander, R-Tenn., announced he would introduce a bill to “invalidate” the ruling. The NLRB’s ruling came in a case concerning a recycling company called Browning-Ferris Industries of Milpitas, Calif., which used a temporary staffing agency called Leadpoint to provide workers. A Teamsters local tried to organize the employees, but it wanted Browning-Ferris to qualify as a “joint employer,” figuring that bargaining would be ineffective unless it also included the larger company whose demands affect the working environment. A regional NLRB official disagreed, and the Teamsters appealed. This time, the NLRB’s general counsel sided with the union, recommending in an amicus brief that the board ignore a standard in place since the 1980s and apply a broader definition of what it means to be a joint employer. The Board’s Democratic majority agreed and struck down earlier cases that had articulated the previous standard, saying that the growth of the contingent workforce has rendered the definition out of step. In the process, the board reversed the regional director’s decision, deciding that Browning-Ferris exercised sufficient control over hiring, firing, discipline, supervision, and work hours to qualify as a joint employer under the new standard. It ordered that ballots impounded after the Teamsters’ election in April 2014 be counted, which — if the union wins — would allow it to bargain directly with the recycling company as well as the staffing agency that hired the workers. “Today’s decision is another step to show that companies can no longer claim they are not employers when problems arise,” said Ron Herrera, director of the Teamsters Solid Waste and Recycling Division. “Instead of pointing fingers if a worker gets hurt, companies will now be accountable.” The issue has not just been a bone of contention between unions and employers. It also created sharp disagreements within the labor board: The two Republican appointees authored a blistering dissent, arguing that the new standard goes beyond the body’s authority and could unintended consequences. “Under the majority’s test, the homeowner hiring a plumbing company for bathroom renovations could well have all of that indirect control over a company employee!” the dissent read. “We suppose that our colleagues do not intend that every business relationship necessarily entails joint employer status, but the facts relied upon here demonstrate the expansive, near-limitless nature of the majority’s new standard.”

lcd tv

Sharp considering spin-off of LCD panel unit

TOKYO — Struggling electronics maker Sharp Corp. is considering selling off its mainstay liquid crystal display panel business, The Yomiuri Shimbun has learned. According to sources, Sharp will likely spin off the LCD panel unit into a joint venture it plans to set up. The company intends to abandon its management stake in the business by reducing its capital contribution ratio to less than 50 percent. Sharp will soon enter negotiations with Japan Display Inc. (JDI), a major LCD panel maker, over the sell-off of the LCD panel business, the sources said. Sharp has been leading the global market with its LCD panel business, but has scaled down the business to focus on small and midsize LCD panels for smartphones. JDI was established in 2012 through the integration of the LCD panel businesses of major electronics makers, including Sony Corp. and Toshiba Corp. If JDI injects capital into Sharp’s LCD panel business to create a larger Japanese LCD panel maker alliance, their combined small and midsize LCD panels will secure a global market share of more than 30 percent. Sharp also plans to discuss the sell-off of its LCD panel business with Taiwan’s Hon Hai Precision Industry Co., the sources said. Sharp’s LCD panel business accounts for nearly 30 percent of its sales. Due to the slowdown of the Chinese economy, Chinese smartphone makers - to which Sharp supplies LCD panels - have seen a decline in sales. Within the scope of the deal, Sharp will discuss spinning off its Kameyama No. 2 plant in Mie Prefecture, which manufactures small and midsize LCD panels, into a separate company that will become a joint venture through the investment of capital by another company. The proceeds from the sale may exceed 100 billion yen ($828 million). Large LCD panels for televisions used to be mainstay products for Sharp. However, huge investment in large LCD panel production weighed heavily on the company. In 2012, Sharp sold shares in a company that operates a plant in Sakai, to a firm affiliated with Hon Hai and others. Sharp now owns only about 38 percent of shares in the company that operates the plant. Sharp said in a statement released Friday, “We are at the stage of considering various possibilities for fundamental structural reforms of [our] LCD business. There are no facts that we are starting negotiations with any individual company.”

Japan Olympics Tokyo Stadium

Japan scales back Tokyo 2020 Olympic stadium plans

TOKYO — Japan’s government has approved a plan to reduce the seating and slash the construction cost of the main stadium for the 2020 Tokyo Olympics after public opposition to the initial design. The cabinet approved the revised plan Friday, which would cap the price tag at 155 billion yen ($1.3 billion), down from the plan for a 252 billion yen stadium that the government abruptly scrapped in July. The plan calls for a 68,000-seat stadium for the Olympics, down from the initially-required 80,000, though it would be expandable to that size for later events. The earlier design was scrapped following a public outcry over the hefty price tag, which was nearly double the original estimate and would have made it the most expensive sports stadium ever. The plan for the new facility calls for a stadium to “convey Japan’s exquisite tradition and culture to the rest of the world” and blend well into the historical environment and aesthetics of a traditional Shinto shrine in the neighborhood, with ample use of wooden materials. It calls for a “realistically best plan” while pursuing the cost-cutting effort, and the stadium, which will be primarily used for athletics events during the Games, will have a partial roof just above spectator seats. The contractors for designing and construction will be chosen in late December ahead of the start of construction by December 2016. “We must make sure to get the new national stadium completed in time for the opening of the 2020 Games,” Prime Minister Shinzo Abe said at the outset of Friday’s meeting. The government will issue tenders for construction of the stadium based on the new parameters. The revised construction schedule will be extremely tight. The stadium will not be able to accommodate the 2019 World Cup rugby as originally planned. The plan approved Friday says the stadium must be ready by April but calls for further effort to speed up the construction for a completion as early as the end of January 2020 to meet the deadline proposed by International Olympic Committee. During his visit in Tokyo last week, IOC vice president John Coates made the timeline request to Japanese Olympic officials while saying the IOC did not insist on an 80,000 capacity, the size for the earlier design.

National Business

Economy

Claims for jobless benefits fall to three-week low

WASHINGTON — Filings for jobless benefits declined to a three-week low, indicating persistent demand is encouraging employers to maintain headcounts. Unemployment applications dropped by 6,000 to 271,000 in the week ended Aug. 22, a Labor Department report showed Thursday. The median forecast of economists surveyed by Bloomberg called for 274,000 jobless claims. Demand for skilled workers as the unemployment rate falls is convincing hiring managers to keep staffing levels consistent with sales. Pay raises, alongside strengthening job security, would help provide a bigger boost to consumer spending, which accounts for almost 70 percent of the economy. “Companies are concerned that if they let people go, even if they’re not their star employees, that it’ll be difficult to replace them,” Aaron Smith, senior economist at Moody’s Analytics Inc. in West Chester, Pennsylvania, said before the report. “Wage pressures should be picking up, supporting the positive outlook for consumer spending.” Another report Thursday from the Commerce Department showed a bigger advance in household purchases in the second quarter than previously estimated. A 3.1 percent increase in spending helped boost gross domestic product to a 3.7 percent gain in the three months ended in June. Business spending, government outlays and homebuilding were also revised higher for the quarter. Estimates in the Bloomberg survey of 50 economists for jobless claims ranged from 260,000 to 280,000 after an initially reported 277,000 filings a week earlier. Applications for benefits dropped to 255,000 in mid-July, the lowest level since November 1973. No states were estimated last week and there was nothing unusual in the data, according to the Labor Department. The four-week average of claims, a less-volatile measure than the weekly figure, rose to 272,500 from 271,500 in the prior week. The number of people continuing to receive jobless benefits increased by 13,000 to 2.27 million in the week ended Aug. 15. Since the beginning of March, claims have held below the 300,000 level that economists say is consistent with an improving labor market.

Economy GDP

Economy grows 3.7 percent in second quarter

WASHINGTON — The economy grew more than previously estimated in the second quarter on bigger gains in consumer and business spending that show the U.S. expansion got back on track. A surge in inventories also signals such strong growth will be difficult to sustain in the short run. Gross domestic product, the value of all goods and services produced, rose at a 3.7 percent annualized rate, exceeding all estimates of economists surveyed by Bloomberg and up from the 2.3 percent the Commerce Department reported last month, figures showed Thursday in Washington. American households, bolstered by gains in employment, rising home prices and cheaper fuel costs, will probably continue to spur the economy in the second half of the year. At the same time, a record surge in stockpiles represents another headwind for manufacturers already contending with a rising dollar and slumping emerging markets that have hurt exports. “The economy was on firm footing coming into the second half,” Millan Mulraine, deputy head of research and strategy at TD Securities USA in New York, said before the report. “The outlook going forward has more to do with global markets.” The report comes as Federal Reserve policymakers debate whether growth is strong enough to withstand the first increase in the benchmark interest rate since 2006. While the job market has made strides since the recession ended, inflation remains well short of the central bank’s goal. Additionally, the global plunge in stocks also could argue for a delay. The median forecast of 79 economists surveyed by Bloomberg called for a 3.2 percent gain in GDP, or the value of all goods and services produced. Forecasts ranged from 2.3 percent to 3.6 percent. A report Thursday from the Labor Department showed fewer Americans applied for unemployment insurance benefits last week. Jobless claims declined by 6,000 to 271,000 in the week ended Aug. 22. That’s just above a four-decade low of 255,000 reached in mid-July. The latest GDP estimate is the second of three for the quarter, with the third release scheduled for late September when more information becomes available. The economy grew at a 0.6 percent pace from January through March, restrained by harsh winter weather, a labor dispute at West Coast ports and a slump in energy-industry investment after oil prices dropped. Thursday’s report also offered a first look at corporate earnings. Before-tax profits rose 2.4 percent in the second quarter, after dropping 5.8 percent in the prior period. From the same time last year, profits were down 0.5 percent. The biggest driver of the upward revision for second- quarter GDP was a bigger gain in business investment, which included stronger readings on construction, research and development and inventories. The 8.6 percent advance in spending on intellectual property was the largest since the last quarter of 2007. The surge in stockpiles is a double-edged sword because, while it boosted growth last quarter, companies will probably need to trim the amount of goods on hand from July through September, leading to cuts in production that will restrain GDP. Stockpiles climbed at a $121.1 billion annualized pace compared with an initially estimated $110 billion, and added 0.2 percentage point to economic growth. Following the first quarter’s $112.8 billion increase, it marked the biggest back-to-back gain in inventories since records began in 1947. “It does raise the risk that at some point later in the year we might see a little bit of pullback in inventories” as companies cut production, Sam Coffin, an economist at UBS Securities in New York, said before the report. Household consumption, which accounts for almost 70 percent of the economy, grew at a 3.1 percent annualized rate, revised from an initial estimate of 2.9 percent and following a 1.8 percent advance from January through March. Gains in consumers’ purchasing power cooled last quarter, with disposable income adjusted for inflation rising at a 1.3 percent rate from April through June after a 3.9 percent gain in the first quarter. The saving rate decreased to 4.8 percent from 5.2 percent in the first three months of the year. Still, “the U.S. consumer is looking healthy,” Jennifer Lee, a senior economist in Toronto for BMO Capital Markets, said before the report. “Employment is strong. The housing recovery is going to continue.” The report also included revisions to first-quarter personal income. Wages and salaries rose by $49.8 billion, revised up by $5.6 billion. They climbed by $47.7 billion in the second quarter. Gross domestic income, which reflects all the money earned by consumers, businesses and government agencies climbed at a 0.6 percent annualized rate in the second quarter after a 0.4 percent advance, the report showed. Government spending also was a standout last quarter, increasing at a 2.6 percent pace, the most in five years. State and local outlays increased at the fastest rate since late 2001. Fed policy makers, considering raising the benchmark interest rate for the first time since 2006, are monitoring the global stock-market turmoil. “From my perspective, at this moment, the decision to begin the normalization process at the September FOMC meeting seems less compelling to me than it was a few weeks ago,” New York Federal Reserve President William Dudley said Wednesday, cautioning it’s important not to overreact to short-term developments. He also described the economy as “performing quite well.” Dudley said one important way that market volatility could influence the U.S. economy was though the so-called wealth effect, in the event that stock market losses lead Americans to cut back their spending. Another key channel is what happens to inflation, which has been running below the Fed’s two percent target for over three years.

Hong Kong Financial Markets-11

Chinese stocks bounce back strongly

BEIJING — Chinese markets rose dramatically Thursday, with the benchmark Shanghai Composite Index soaring quickly in less than an hour of late afternoon trading to finish up a significant 5.3 percent. The Shenzhen Composite also closed up 3.58 percent. The Shanghai index rose on opening, and then was down .65 percent in the last hour of trading before shooting up in the last 46 minutes, staging an enormous, quick turnaround of 6.11 percent. Trading volumes were heavier than usual, which could point to some sort of state intervention. The Chinese government did intervene to shore up the stock market ahead of a Sept. 3 military parade celebrating the country’s World War II victory over Japan, Bloomberg News reported, citing unidentified sources. The government bought blue-chip stocks, Bloomberg reported. It said the sources asked not to be identified because the move was not publicly announced. Other Asian markets — in Japan, South Korea and Australia, for example — were also up. The gains followed a solid rebound on Wall Street on Wednesday and ended six days of stomach-turning losses linked mostly to questions about China’s economic health. The Dow Jones industrial average climbed more than 600 points Wednesday, its third-largest points gain. The Dow, the Standard & Poor’s 500-stock index and the Nasdaq each climbed close to 4 percent. The bearish sentiment was bolstered by comments from William Dudley, president of the New York Federal Reserve, who said Wednesday that the prospect of a September interest rate hike “seems less compelling” given the recent market turmoil. Wall Street’s recovery came after a wild day of whipsaw trading in Asia on Wednesday, despite monetary easing by China’s central bank. China’s central bank cut interest rates Tuesday and lowered the reserve requirement for banks in an apparent effort to ease stock panic and rev up the real economy. But analysts worry that was not enough and predict ongoing volatility in the days and weeks ahead. “The downward trend has not changed. The market is on track to bottom out,” said Shenzhen-based Yang Delong, chief strategy analyst at China Southern Asset Management. “The rebound [in China] is a technical rebound. It is the market self-correcting after several recent big drops.” The easing by the People’s Bank of China “may have halted the panic stock market selling but we think it’s too early to expect a lasting relief from the global market volatility,” echoed ING’s Prakash Sakpal in a note dated Wednesday. Li Keqiang, China’s premier, stressed this week that despite ongoing market swings, the economy as a whole is sound and should meet its year-end targets. “Fundamentally, the overall stability of the Chinese economy has not changed, and positive factors sustaining a turn for the better in the real economy are accumulating,” Li said in a meeting Tuesday, state media reported. The country’s state-controlled press quickly backed the view — and slammed foreign observers for “hype” about an economic slowdown. “Some people around the world have rather impatiently spoken of the so-called end of the China model, or of a hidden financial crisis in China,” read a comment in the People’s Daily, signed Zhong Sheng. “China is devoting rarely seen courage to comprehensively deepen reform. The world also needs to reform its perspectives on China.”

APTOPIX GOP 2016 Trump

Trump slammed by Univision CEO as Megyn Kelly and Jorge Ramos have a heart-to-heart

The man behind the network behind the news anchor that Republican presidential candidate Donald Trump tossed out of a news conference Tuesday is not happy with Trump’s behavior. Univision chief executive criticized the Donald — and praised news anchor Jorge Ramos — in a statement released this week. “The recent treatment that Jorge Ramos received at Mr. Trump’s press conference in Iowa is beneath contempt,” Univision CEO Randy Falco said in a statement. “As a Presidential candidate, Mr. Trump is going to get tough questions from the press and has to answer them.” Trump had Ramos removed from the press conference after claiming Ramos asked a question without being called on. “I’m a reporter, an immigrant, a senior citizen,” Ramos said. “I have the right to ask a question.” “Go back to Univision,” Trump replied, having a bodyguard remove Ramos — only to have him return and ask his questions five minutes later. Trump later said Ramos was “ranting and raving like a madman.” Falco called Ramos “one of the most professional, dedicated and respected journalists I have seen or worked with in my 40 years in media.” “He always asks hard questions of candidates and elected officials, regardless of party or issue,” the CEO wrote. “Mr. Trump demonstrated complete disregard for him and for the countless Hispanics whom Jorge seeks to represent through press questions that are at the heart of the First Amendment.” Falco concluded by expressing his gratitude to Ramos and other reporters at Univision who “bring all points of view to the 57 million Hispanics in this country.” It should be noted that Falco and Trump have battled before. Indeed, Trump sued Univision for $500 million earlier this year when the network refused to air the Miss USA beauty pageant after the candidate made disparaging remarks about immigrants. “Nothing that I stated was different from what I have been saying for many years,” Trump said at the time. “I want strong borders, and I do not support or condone illegal immigration.” Univision didn’t think much of that. “We just reviewed Mr. Trump’s complaint for the first time, and it is both factually false and legally ridiculous,” the company said in a statement. “We will not only vigorously defend the case, but will continue to fight against Mr. Trump’s ongoing efforts to run away from the derogatory comments he made.” Ramos, meanwhile, criticized Trump further on Wednesday in an interview with another Trump foe: Fox’s Megyn Kelly. Kelly started off by asking Ramos how it felt to be the target of Trump’s ire. “You know exactly how it feels,” Ramos said, referencing Kelly’s testy exchanges with Trump during the first Republican presidential debate about his comments about women. Ramos said he went to the news conference seeking answers to important questions about Trump’s “empty promises” on immigration. Kelly, perhaps playing devil’s advocate, tried to present Trump’s point-of-view. She asked Ramos: “Can you understand Trump’s side of it, which is: ‘This is not the outlet I want to take these questions from because their mind is made up about me.‘” “I understand that,” Ramos said, “but he is talking about the fastest-growing electoral block in the United States. He’s talking about 16 million Latinos that will go to the polls and might decide the next election. So it doesn’t matter if he doesn’t like it.” Ramos added: “He doesn’t like uncomfortable questions. It happened with you . . . he hates it when he is being confronted.”