Last January I wrote a post called the "No Look Pass." That piece was in response to the political conundrum created when last November's Minimum Wage law failed to include an exemption for the Developmentally Disabled.
The law is clear. You can't pay workers less than minimum wage and there are no exemptions. However, this is a politically untenable position because the developmentally disabled community is a sympathetic and visible loser. But the law can't be changed because it was created by initiative and the legislature is not allowed to create exemptions to a law that was passed by the people. There is no legitimate solution short of changing the law at the next general election.
However, there is an illegitimate trick that can solve the problem. In January I predicted what would happen.
So what's the solution? The No Look Pass. The agency that enforces the minimum wage law is planning to take a pass on it and the newspapers and law enforcement agencies are vowing not to look.
That's exactly what happened. The agency charged with enforcing the statute fabricated an exemption. Here's the Republic's take on it.
They will not be "workers," per se. Rather, they will be "trainees," who work not for a wage but for an educational stipend.
Sure, that's the ticket. The Industrial Commission will simply say that these folks aren't workers and the money they receive isn't wages. The newspapers will look the other direction. Thus the "no look pass."
The Republic continues its glowing editorial support for the Industrial Commission's slight of hand while conceding that the rule is a fabrication.
Technically, the law may say the developmentally disabled are but "trainees."
But, in fact, they are workers. Earning what they get, and gaining the gratification of a wage hard-earned in the process.
So what's wrong with that? I answered the question in my previous post.
So what's wrong with the No Look Pass? The problem is that if you aren't a sympathetic character, the enforcement agency will decide not to pass and the newspapers will decide to look.
We are a nation of laws not men. That's not just rhetoric, it's a fundamental principle. Your status in the legal system in based on what you do, not who you are. But the No Look Pass allows onerous laws to continue and simply not be applied to folks who are sympathetic. Or, conversely, they can be used to target folks who aren't sympathetic.
I previously used the example of the disparate treatment that David Burnell Smith received from the Clean Elections Commission. The statute states that fines for election violations shall be 10 times the amount of any violation. But this is untenable because it would wipe out a lot of candidates. So the CCEC has--unlawfully--provided exceptions and the newspapers don't look. That is they don't look until they decide to look...and in Smith's case, remove him from office.
But let's take politics out of it. Here's a great example of selective enforcement. You may have seen this little tidbit in the paper.
Paradise Valley socialite Sonia Falcone plead guilty Wednesday to a misdemeanor charge of employing unauthorized immigrant workers as part of a courtroom deal that forces her to leave the United States but eliminates a potential felony conviction.
The Falcone's have a colorful past to say the least and are certainly not sympathetic characters, but step back a second and pay attention to the charges.
Under the plea bargain, those felony allegations will be dismissed. Instead, she will admit to employing several immigrants who had religious visas, but were not authorized to work in the United States. That crime is not even listed on the indictment.
The Paradise Valley Socialite is forced to leave the country because she hired illegal aliens? Perhaps she's the only Paradise Valley resident who has done that. If you read more closely, the guys she hired weren't even in the country illegally, but it was a violation of their Visas for them to work. Has anyone in Arizona been forced to leave the country because they hired someone who was in the country legally but not authorized to work? Of course not.
This is the pernicious side of the No Look Pass. If you are a sympathetic character--the Developmentally Disabled Community with minimum wage law, Janet Napolitano with Elections Law, someone picking up guys at Home Depot with Immigration Law--then the law doesn't apply to you.
But if you are not a sympathetic character--Hispanic teenagers who lose their jobs because of artificially high wages, David Burnell Smith kicked out of office for campaign violations or Sonia Falcone kicked out of the country for hiring a driver in violation of his Visa restrictions--then the full weight of the law falls on you.
The cornerstone of our legal system is that we are a nation of laws not men. It's not who you are that gets you fired, removed from office or deported, it's what you do. The No Look Pass is an abdication of responsibility by the regulatory agencies and their enablers at the newspapers.
So the Republic and the Industrial Commission may think that it's really clever to wink and define workers as "trainees" and wages as "stipends" but that's not how the law works. If you don't like the law change it. Don't simply decide not to apply it.
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