The
U.S. Appeal court's rejection of the Headley lawsuits against
Scientology is not carte blanche for future abuse, says the attorney
who filed the original complaints: but the judgment still got it
wrong, he argues.
On
July 24, Barry Van Sickle got word of a California appeal court
ruling in two lawsuits he had filed for former Scientologists against
the movement more than three years earlier.
It
was not good news.
The
U.S. Court of Appeals for the Ninth Circuit rejected the lawsuits
filed by Marc and Claire Headley against Scientology, ruling that
they did not meet the criteria for human trafficking.
“They
have not established a genuine issue of fact regarding whether they
were victims of forced-labor violations,” wrote Judge Diarmuid
O'Scannlain for the three-judge panel.1
Van
Sickle put aside his regular work and began studying the 17-page
ruling – and Infinite Complacency
is pleased to be able to present his analysis here.
As
reported here last month,
even if the case did not clear the bar for human trafficking, the
court seemed to be indicating that other offences might have been a
better fit for the evidence presented.
“...[W]e
do not decide how the Headleys might have fared under a different
statute or on other legal theories,” said the ruling.
The
Headleys abandoned claims under federal and state minimum wage laws.
And
although the Headleys marshaled evidence of potentially tortious
conduct, they did not bring claims for assault, battery, false
imprisonment, intentional infliction of emotional distress, or any of
a number of other theories that might have better fit the evidence.2
This
passage was of particular interest to Van Sickle because, based on
that list, his original lawsuit would have been a better fit to the
facts of the case.
So
it was exasperating to have former Scientologist Marty Rathbun blame
the result on him, in his blog, Moving On Up a Little Higher.
“The
lawyer who originally filed the case did Marc and Claire a disservice
by putting all their eggs in the Human Trafficking issue basket,”
wrote Rathbun, a leading member of the independent Scientology
movement.3
Van
Sickle posted to Rathbun's website to put him straight.
“Marty
is incorrect about the initial lawsuit, and who made the decision to
narrow the case to a human trafficking case.
“The
decision to place all the eggs in the human trafficking basket was
made by the Metzger firm over my objection,” he added. The Metzger
firm, which took over the case from Van Sickle, pleaded the case at
the appeal court.
Van
Sickle also noted that the initial lawsuit had been filed four years
after Marc Headley had escaped.
That
meant it was simply too late to file on some grounds, where the
statute of limitations had already expired. And that, to some extent,
had determined his approach to the case.
But
in any case, he believes the appeal court got it wrong.
They
effectively ruled that, as a church, Scientology could coerce workers
to keep providing services by the use of “discipline” and other
types of control.
But
that goes way beyond any accepted application of the First Amendment
guaranteeing religious freedom, he argues.
“There
is no Constitutional need to allow Scientology to coerce, intimidate,
confine, underpay, overwork, and otherwise abuse Sea Org members.”
Van
Sickle also argues that the appeal court judges:
- applied the wrong statutory criteria in evaluating the threat of “serious harm” in human trafficking;
- presented a sanitized version of life in the Sea Org that reads like a Scientology hand-out;
- and rejected, without serious analysis, evidence from the Headleys' expert witness on the key issue of psychological coercion.
More
on that below.
A
three-pronged attack
A
look back at that original lawsuit confirms that the grounds Van
Sickle set out were broader than those that came before the appeal
court.4
He
took three lines of attack.
First,
he alleged, multiple violations of California's B&P Business and
Professions Code, specifically the part relating to unfair and
illegal business practices (article 17200).
“It
has the benefit of a four-year statute of limitations...,” with
the potential to reach back further to cover a continuous tort, Van
Sickle told Infinite Complacency.5
Second,
he sued for alleged violations of the labor code: specifically for
unpaid wages.
Marc
Headley's original lawsuit, filed on January 5, 2009, alleged that he
and his co-workers had been subjected to “intimidation by assault,
threat, menace and invasion of privacy.”
Headley
had worked at Int. Base in California, a high-security 500-acre
compound for Scientology's top executives.
“The
base had a substantial support staff of people who performed what
would generally be considered ‘blue-collar' work or other labor
that would not fit within the common meaning of the term minister,”
Van Sickle told Infinite Complacency.
“Marc
worked in production for Golden Era studio and Claire was essentially
an executive secretary at the end of her employment.”
As
the lawsuit spelled out, Headley frequently worked 15- to 20-hour
days and got only three or four hours' sleep a night.
He
had been recruited at the age of 16 but had “signed
his first purported employment contract at age eleven,” Van Sickle
wrote in the lawsuit.
And
although he had been promised minimum wage, he had never
received it.
In
fact, between 1989 and 2005, when Headley worked for Scientology, the
minimum wage in California rose from $4.25 to $6.75. Headley
calculates he was earning about 39 cents an hour during this period.
Nor
had Scientology informed Headley of his employment rights, as the law
required: on the contrary, the movement had deceived him about his
rights, arguing that as a church, it was exempt from the relevant
laws.
But
that was just not true, Van Sickle argued in the lawsuit.
“The
First Amendment does not exempt religious organizations from minimum
wage and child labor laws,” he wrote, citing the relevant case law.
(The U.S. First Amendment guarantees religious freedom.)
Scientology
had a duty to comply with the relevant state and federal laws over
pay, he argued.
Intead,
he continued, the movement had “...intentionally, consciously and
wrongfully made a tactical decision to ignore the labor laws, take
its chances with a compliant and intimidated work force, and hope
that the running of statutes of limitations would in the long run
save [Scientology] millions of dollars.”6
Scientology's
controversially acquired tax-exempt status with the Internal Revenue
Service did not exempt it from complying with other laws, Van Sickle
argued. In fact, it meant quite the reverse.
“The
privilege of being a tax-exempt organization carries the burden of
complying with other laws and not being operated for the benefit of a
selected few.
“The
use of coerced, cheap labor is contrary to law and Defendant’s
tax-exempt deal with the IRS,” he wrote in the lawsuit.7
Human
trafficking
This
was Van Sickle's thinking when he filed Marc Headley's claim.
“While
the wage and unfair business practice claims would be relatively easy
to prove – the issue would essentially be the application of the
minister exception – the 'problem' with both the wage claims and
the unfair business practice claims was a limitation to economic
damages,” he told Infinite Complacency.
So
Van Sickle opened a third front, alleging human trafficking – which
is where the Metzger law firm eventually decided to focus the case.
In
his lawsuit, Van Sickle listed the criteria set out under the
California penal code:
- Signs of trauma, fatigue, injury, or other evidence of poor care.
- The person is withdrawn, afraid to talk, or his or his communication is censored by another person.
- The person does not have freedom of movement.
- The person lives and works in one place.
- The person owes a debt to his or his employer.
- Security measures are used to control who has contact with the person.
- The person does not have control over his or his own government-issued identification or over his or his worker immigration documents.
“These
indicators are present to various extents in the workforce at
Plaintiff’s previous place of employment with Defendant and most if
not all of these 'indicators' of human trafficking would apply to
Plaintiff herein at various times during his employment [with
Scientology],” he wrote.8
He
described the musters three times a day at the base, when Int. Base
officers checked to see if everyone was still present; he set out in
detail the extraordinary lengths to which Scientology went to recover
those who had fled the base without permission, or “blown”.
And,
he wrote, Headley also alleged that not only had he been assaulted by
the movement's leader, David Miscavige, but he had also seen several
of his colleagues assaulted. (Miscavige's violence has been widely
reported on this site and elsewhere.)9
And
then there was the time Headley had been assigned a two-day
punishment detail cleaning human waste – by hand.10
“At
night, people are assigned to watch the sleeping quarters,” wrote
Van Sickle in his submission to the court.
“Long hours, poor food,
lack of sleep and lack of freedom is the norm.
“The
'indicators' of human trafficking provide an accurate description of
daily life at Gold Base.”11
The
appeal court, as we have seen, did not appear to doubt the basic
facts of life at the Base: it just did not think it constituted human
trafficking. (Why Van Sickle thinks they were
wrong we will come to later.)
A
few weeks after he had filed for Marc Headley, Van Sickle filed a
separate lawsuit on behalf of his wife, Claire, also in January 2009.
Claire,
too, had worked many years at the International base in Hemet,
California, enduring similar pay and working conditions. So Van
Sickle filed this lawsuit along similar lines.
But
in addition to what Marc had suffered, Claire had twice been
pressured into having abortions – and had seen other women punished
with manual work for having resisted such pressure. This added a
disturbing dimension to the case.12
The
Sea Organization appeared to be quite willing to put minors to work,
but would not allow its older workers to take time off to have
“non-productive” children.13
Ministerial
exception
It
should be clear by now that Van Sickle did not accept that a Sea Org
member was a minister simply by virtue of being a Sea Org member.
Marc
Headley's duties had not included anything remotely approaching the
minister's role as set down by the movement; Claire Headley's work
had been mainly secular in nature.
He
underlined this point in a November 2008 letter to the California
Labor & Workforce Development Agency regarding the developing
lawsuit.
“The
minister exception does not apply to these claimants or these labor
law claims. This dispute is about pay and working conditions, not
religion per se.”14
Van
Sickle unpacked this for Infinite
Complacency.
The
general rule, said Van Sickle, is that religions have to comply with
the law: but an exception has developed in the area of
discrimination. So for example, a religion can discriminate against
women when it comes to appointing its ministers.
“The
rationale is that 'ministers' are the voice and face of a
church,” said Van Sickle. “A religion interacts with the public
through its ministers.” In this area at least then, a church has to
have the freedom to choose.
But
compare that with the work of Sea Org members, said Van Sickle.
“In
contrast, Sea Org members typically perform regular jobs with no
public contact.
“At
Int. Base where Marc and Claire worked, Sea Org members were cooks,
janitors, security guards, construction workers, chauffeurs,
laborers, grounds keepers, car mechanics and other positions...,”
said Van Sickle.
None
of these jobs could reasonably be said to have anything to do with
ministerial functions, he pointed out.
“When
I filed the case, other circuits had defined the ministerial
exception in terms of purpose and functionality.
“The
Supreme Court had issued a ruling that those working for a religion
for compensation, even if it was just room and board, were entitled
to minimum wage.15
“Of
course, these issues were researched before the case was filed and
the research continued as the case progressed,” he added.
“The
spin that Sea Org members are the 'elite' of Scientology or in a
'priesthood' does not accurately reflect reality. Most are laboring
grunts with no time or energy for supposedly religious activity.”
To
underline that point, he referred to Tony Ortega's recent
interview with another Sea Org defector, John Brousseau.16
Brousseau
told Village Voice how he had led a team of Sea Org members
who essentially acted as Cruise's servants: everything from
maintaining his house to maintaining his vehicles and an aircraft
hangar he owned. Brousseau himself even customised Cruise's Bluebird
motor home.
“That’s
simply not religious work,” said Van Sickle. “These workers
cannot all logically be considered 'ministers'.”
Or
to put it another way: “The ministerial exception is just that –
an exception.”
You
can see Van Sickle's point.
The
freedom of churches to select their ministers is based on
constitutional grounds: but it is difficult to see how that can
extend to farming out Sea Org members as cheap labour for a Hollywood
film star.
Reshaping
the case
The
issue of whether the Headleys could be considered ministers was
central to the case as Van Sickle had formulated it.
But
as he pointed out in his response to Rathbun – once the
Metzger Law Group took over the lawsuits,
they chose not to pursue the wage and hour claims.
While
Van Sickle disagreed, he understood their tactical reasons.
“Forced
labor has an extremely long statute of limitations and allows for
non-economic damages, punitive damages, and legal fees,” he pointed
out.
“By
focusing on the forced labor claims and conceding the minister
exception the case was simplified, but it conceded valuable ground.”
A
look at the appeal court ruling shows how much ground was actually
conceded.
The
judgment repeatedly refers to the Headleys as ministers without
actually taking a close look at what they were actually doing.
“The
court seemed to be more lenient towards outrageous conduct because
'ministers' were complaining about their chosen occupation...,”
said Van Sickle.
“Another
result is that those reading the opinion without knowing the actual
facts will think that the case is about ministers, as that term is
commonly understood,” he added.
Even
if one conceded the point and accepted that the Headleys should be
considered ministers, that was not the end of the story.
There
was still the question of how far the ministerial exception could be
said to excuse the kind of abuse at issue.
Nevertheless,
by focussing on the human trafficking/forced labor issue, the Metzger
Law Group narrowed the possibilities – and raised the stakes.
A
swing for the fences
In
my previous piece on the appeal court ruling I quoted attorney
Scott
Pilutik's remark to Village
Voice
that the decision to bet it all on human trafficking was a
high-stakes gamble.
“In
baseball terms, if you swing for the fences you're more likely to hit
a home run... but you're also more likely to strike out,” he noted.
“If
the Headleys' human trafficking case was successful, it would have
had a massive impact on how Scientology treats its staff members
going forward.”17
Van
Sickle agrees with that assessment.
“When
I started what I knew would be another tough Scientology case, the
idea was to have some win – even if just for minimum wage,” he
told Infinite Complacency.
“The
human trafficking claim greatly upped the stakes. The verdict
potential was much higher than for the labor claims.
“In
that sense Scott P. was right. The human trafficking claim was a
swing for the fences.”
But
as we have seen, the way Van Sickle originally conceived the lawsuit,
it was part of a wider package.
“My
thought was that the wage case would have been relatively simple to
prove,” Van Sickle told Infinite Complacency.
“The
only real issue would have been the legal issue of whether
Scientology had to comply with labor laws.”
The
wrong criteria?
As
things turned out, the appeal court judges only had the human
trafficking claim to consider – and they were not convinced.
Last
month's ruling made much of the fact that the Headleys could have
escaped earlier had they wanted to:
We
emphasize that the Headleys had innumerable opportunities to leave
the defendants. They lived outside of the Base and had access to
vehicles, phones, and the Internet.
They
traveled away from the Base often. The security that they decry
afforded them a multitude of opportunities to leave, as hundreds of
other Sea Org members had done – whatever their commitments and
whatever they may have been told regarding the permissibility of
leaving ...
They
have not established a genuine issue of fact regarding whether they
were victims of forced-labor violations.
But Van Sickle thinks they applied the wrong criteria.
“The
court seemed overly impressed with the arguments that the Headleys
could have escaped earlier and that they may have had an occasional
good day,” he said.
But,
he argued: “Ability to escape is more of a false
imprisonment issue than a forced labor issue.”
The
case before them alleged human trafficking – or forced labor, he
pointed out.
“The
forced labor statute expressly includes both physical and mental
'confinement'. Psychological coercion is clearly covered by the
forced labor statute, which makes it different from false
imprisonment.”
The
court made another mistake in its interpretation of the law on forced
labor, he said.
In
its ruling, the court quoted a key provision in the Trafficking
Victims Protection Act:
“Serious
harm” means any harm, whether physical or nonphysical, including
psychological, financial, or reputational harm, that is sufficiently
serious, under all the surrounding circumstances, to compel a
reasonable person of the same background and in the same
circumstances to
perform or to continue performing labor or services in order to avoid
incurring that harm. (My
emphasis)18
But
in this context, Van Sickle argues, “a reasonable person of the
same background and in the same circumstances” is not a federal
court judge or even the average person in the street.
It
is someone who, like the Headleys, has been in a controlling cult
since childhood.
“Given
their background and circumstances in the cult, was it 'reasonable'
for them to continue working to avoid future harm?
“There
was at least a jury question on that issue even without the expert
evidence ignored by the court.”
For
Van Sickle then, the appeal court had focussed on the wrong question.
“The
key issue regarding 'Forced Labor' is not whether the Headleys could
have escaped earlier but what stopped them.
“Why
did they stay and continue working for the cult?
“They
did not leave earlier because the cult made them believe that there
would be adverse consequences. They were intimidated and coerced into
providing labor for the cult.
“The
daily musters, blow drills – retrieval of some who had blown –
and the punishment of those caught or retrieved made leaving a risky
move. Loss of spouse, hard labor, RPF, and 'freeloader debt' were
just some of the risks involved.”19
All
these points had been covered in the Headleys' testimony, said Van
Sickle, but he added, “...the case for mental coercion was well
made in plaintiffs' expert witness study and report.”
The
psychologist's report
The
District Court had refused to admit a declaration by Dr. Robert
Levine, an expert in the psychology of persuasion and mind control,
ruling that it was not based on reliable principles or methods. The
appeal court agreed.
This
is how the appeal court disposed of Levine.
Dr.
Levine based his opinion on his review of the Headleys’ deposition
transcripts and related exhibits. He never spoke with the Headleys in
forming his opinion.
The
Headleys cite no authority that reading only deposition transcripts
is considered a reliable method in the field of the psychology of
persuasion and mind control.20
Again,
Van Sickle takes issue.
He
understood that the courts might be wary of drifting into the
quicksands of social science: but Levine's decision to review only
the transcripts was perfectly
legitimate, he argued.
“Knowing
how Scientology litigates, I assume that if the expert had
interviewed the Headleys, they would have contrived other arguments,”
he said.
Scientology's
lawyers would have criticised such interviews as unprofessional and
unreliable, he said. They might even have contended that the very act
of interviewing the Headleys had contaminated the psychologist's
views on the case – had made his opinion too subjective.
Damned
if you and damned if you don't, in other words.
The
rejection of Levine's declaration was a fatal blow to the case for
human trafficking.
If the court had simply accepted his conclusions as worth testing in front of a jury, said Van Sickle, there would have been more than enough evidence to take
the forced labor claims to trial.
“Without
saying so, the court essentially required plainiffs to prove
by their own testimony that they felt oppressed
during their entire time and many their years in the Sea Org,”
he said.
“No
'good days', rationalization of plight, or happy times allowed.
“No
change of mind allowed – and if you liked some of the work, you
could never be the victim of coerced labor.
“Using
the court's logic, a sex slave would not be a victim of human
trafficking if the person initially or occasionally liked the
coerced sex.”
For
Van Sickle then, it was not so much that the case had failed to clear
the human trafficking/forced labor hurdle; it was more that the court
had set the bar too high.
“The
legal right not to be coerced, intimidated or frightened into
providing labor should mean freedom to leave a job whenever one
wishes, and on the worker's terms,” he argued.21
“Most
cases have problems and this case had problems,” he said. “The
facts in a Scientology case are usually difficult.
“They
have members write success stories and sign bogus contracts. They
have teams of expensive lawyers working to discourage departing
members from suing.”
But
even if the Headley cases presented unique difficulties, the appeal
court got it wrong on the law, Van Sickle argued.
Dismissing
human trafficking
At
the very the end of its judgment, the appeal court even appears to
dismiss the very idea that human trafficking could apply in this
case.
The
Headleys … wagered all on a statute enacted “to combat” the
“transnational crime” of “trafficking in persons” –
particularly defenseless, vulnerable immigrant women and children. …
Whatever bad acts the defendants (or others) may have committed, the
record does not allow the conclusion that the Church or the Center
violated the Trafficking Victims Protection Act.22
“The
suggestion seems to be that the claim of forced labor was way off the
mark – not even a close call,” Van Sickle noted.
But
if human trafficking was so wide of the mark, he asks, why did the
FBI spend more than a year investigating Scientology on this very
issue, reportedly interviewing more than 30 witnesses?
“There
was a serious FBI investigation concerning criminal prosecution under
the human trafficking laws,” he pointed out.
The
agents involved did not give much away, he said – but they did make
a few comments.
“At
one point it was explained that this particular FBI unit had been set
up to investigate human trafficking of this nature within the states
– and not the international sex trade.”23
A
sanitized account
As
might be expected, the appeal court ruling had gone down badly with
many former Sea Org members.
Some
have expressed outrage at what they say is the sanitised account of
Sea Org life presented in the judgment.
“The
amount of spin fed to the 9th Circuit judges was mind boggling,”
wrote Karen de la Carrière, at the Ex-Scientologist Message Board.24
The
court's opinion stated:
Sea
Org members learn that the ministry will require them to work long
hours without material compensation, to live communally, to adhere to
strict ethical standards, and to be subject
to firm discipline for ethical transgressions.25
That's Lie Number One, wrote de la Carrière, a former collaborator with Scientology founder L. Ron Hubbard who is now part of the independent movement.
That's Lie Number One, wrote de la Carrière, a former collaborator with Scientology founder L. Ron Hubbard who is now part of the independent movement.
No
Sea Org recruiter mentions the long hours, the pitiful pay, the sleep
deprivation, the RPF punishment programme or any other of the abuses,
she argued.26
The
appeal court also wrote:
Because
Sea Org life may at any moment require a member indefinitely to serve
anywhere in the world, the Church prohibits Sea Org members from
having children unless they leave the order.27
That's Lie Number Two, wrote de la Carrière: blaming enforced abortions on Sea Org Travel.
“They lie, lie, lie – even to officers of the Court.”
The
vast majority of the women who had abortions – 90 percent in her
view – never did any kind of travel for the Sea Org.
“To blame enforced abortions on possible Sea Org travel is a bold-faced lie,” wrote de la Carrière.
“Sea Org Recruitment posters promote a life of Excitement, Adventure, Challenge, Advancement, Saving the planet.
“The sordid reality of the abusive RPF is 180 degrees different to the blather they promote.”
“To blame enforced abortions on possible Sea Org travel is a bold-faced lie,” wrote de la Carrière.
“Sea Org Recruitment posters promote a life of Excitement, Adventure, Challenge, Advancement, Saving the planet.
“The sordid reality of the abusive RPF is 180 degrees different to the blather they promote.”
Van
Sickle sympathises.
“Having
spent so much time with not only the Headleys but many other former
Sea Org victims, I have a strong sense that the opinion paints a very
distorted picture of daily life in the Sea Org.
“The
opinion notes big bad events but dismisses those as ecclesiastical
discipline of ministers. Daily life is portrayed as relatively normal
… .
“That
is just plain wrong.”
Summing
Up
In
any case, the position of the California appeal court is now clear,
said Van Sickle.
“The
message to plaintiffs' lawyers is to keep these state tort actions in
state court. The message to the cult is that it has exposure for its
torts.”
That
brings us to what Van Sickle called the “laundry list” of
potential remedies in the ruling, the sugar on the bitter pill: wage
claims,
assault,
battery, false imprisonment, intentional infliction of emotional
distress...
Given
what we already know about the conditions at Int. Base – inside the
Sea Org as a whole – there is no reason why that list could not
serve as a blueprint for future claims from other escapees.
For
as Van Sickle points out: “These
claims have been tried in previous cases and can work if the facts
can be marshaled to prove the case.”
But
for that, more people need to come forward – and this ruling was
hardly an incentive.
“I
fear that this will strongly discourage victims and lawyers from
pursuing their valid claims against Scientology,” he said.
In
the meantime however, more and more Scientologists are quitting the
movement, many of them are speaking out, and the ugly truth about
Scientology is spreading further into the mainstream media.
“Even
as bad as it is for plaintiffs, the Headley opinion is hardly a
recruiting tool for Scientology,” said Van Sickle.
He
doubts that members in good standing will get anything but a redacted
version in the official Scientology write-up.
“Hopefully,
this will help in exposing the business of corporate Scientology, and
life in the Sea Org for what it truly is,” says Van Sickle.
“If
the truth gets out enough, the cult will lose its power.”
---
Listed
chronologically below is earlier coverage of the Headley lawsuits and
related posts:28
Marc
Headley's Lawsuit (January 2009)
Marc
Headley's Story (January 2009)
Claire
Headley's Lawsuit (March 2009)
LA
Press Conference: Marc Headley's Speech (March 2010)
Legal
Update: the Headleys (August 2011)
Supreme
Court backs Ministerial Exception (January 2012)
The
Headleys go to Appeal (February 2012)
The
Headleys on Appeal I (February 2012)
The
Headleys on Appeal II (February 2012)
1From
page 15 of the ruling. For more details on the ruling, see my
previous posting, “Appeal
court rejects Headleys' lawsuits”, or the
ruling itself.
2Page
16 of the ruling.
3“Headley
Case Dismissal Upheld” from Marty Rathbun's blog Moving Up
a Little Higher.
5A
continuous tort is wrongful conduct that is repeated, creating a
separate cause of action each day it persists.
6Pages
15 to 16 of the amended complaint, filed in April.
7Page
5 of the complaint.
8Page
4 of the lawsuit.
9For
more on Miscavige's violence see on this site, “The
Case against Miscavige” and “A
History of Violence”. The story has also reached the
mainstream news media. See also the Tampa Bay Times'
groundbreaking investigation “The
Truth Rundown”, which launched in June 2009 (the paper called
itself The St Petersburg Times at that time). One of their
major sources, of course, was Marty Rathbun, who also assisted the
Headleys in their case by providing Van Sickle with a declaration on
his experience inside the Sea Org.
10As
the appeal court judgment put it, Headley was “assigned to
hand-clean dried human excrement from a large aeration pond...”
(page six).
11Page
four of the lawsuit.
13Intriguingly,
Rathbun writes in his post on the Headley decisions: “We know for
a fact that the filing of the suit (and all the sweat, blood and
tears Marc and Claire spilled in litigating it) resulted in
cancellation of Scientology Inc’s forced abortion policy. It also
resulted in dozens of former Sea Org members receiving substantial
compensation (pay offs to remain silent – but compensation to
create new lives nonetheless).” From “Headley
Case Dismissal Upheld” Marty Rathbun's July 24 post at his
blog Moving
Up a Little Higher.
14Worth
noting in passing is the LWDA's mission statement: “Our mission is
to provide leadership to protect and improve the well-being of
California’s current and future workforce.” Its complete lack of
leadership regarding Scientology's treatment of its Sea Org members
compares poorly with the pro-active approach taken by Australia's
Fair Work Ombudsman.
You
can find the quote from the LWDA website here;
for more on Australia and the Fair Work Ombudsman see my September
2011 posts: “Fresh
Blows to Scientology in Australia”; and “Analysing
the FWO Report”.
15This
is what is known as the Alamo case (Tony
& Susan Alamo Foundation v. Sec. of Labor, 471 US 290, 1985).
The group put needy people to work raising money in return for room
and board. For Infinite Complacency,Van Sickle sketched out
the similarities of Alamo case to the Headley lawsuits. He wrote:[
As in] the early phases of this litigation, the Alamo group
opposed the labor claims by claiming that the workers were
“volunteers” not “employees”. Alamo even submitted
declarations from workers saying that they were volunteers not
employees. The Supreme Court ruled that, if the workers were
providing services in return for room and board, then they were
working for compensation and would be “employees” entitled to
the protection of the labor laws including minimum wage and
overtime. The court found that to be the case as a matter of law.
Whether the employees considered themselves “employees” or
“volunteers” did not matter. The legal test was working for
compensation. A related point is that labor law rights cannot be
waived. The bogus contracts and waivers could not be used to defeat
the labor lae claims. In Scientology litigation that is a big
benefit. The contracts are unenforceable on several grounds but
proving that takes time and effort. The simple rules in labor cases
that the employee's opinion does not matter (see Alamo) and that
these rights cannot be waived are good reasons to use the labor laws
where possible.
16“'Tom
Cruise Worships David Miscavige Like a God': A Scientology Insider
Gives First Full-Length Interview to the Voice”: from Tony
Ortega's blog on Scientology at Village Voice, published July
28, 2012.
17From
Tony Ortega's July 24 Village Voice article: “Scientology
Wins Appeal In Lawsuit Alleging Forced Labor and Forced Abortions”
19The
RPF is the Rehabilitation Project Force, a punishment work camp for
those in disgrace in the movement. The Freeloader Debt is the bill
Sea Org members are presented with when they quit; it is what they
are supposed to owe the movement for all the free training they are
meant to have received but has no legal standing. For more on the
RPF, see elsewhere on this site: “The
RPF: Scientology's Gulag” and “Maureen
Bolstad's Speech”.
20These
remarks come in the footnote at the bottom of the judgment.
21Of
course, the expert testimony was only required for the human
trafficking/forced labor allegations. Van Sickle's original lawsuit,
with its three-pronged attack based on violations both of the labor
code and the Business and Professions Code, would not have required
such expert testimony: another reason to load those bases.
22Page
16 of the ruling.
23Tony
Ortega at Village Voice
reported details of the investigation, first mentioned in a February
2010 New Yorker article, in an article in March. But he had
discovered that even before news of it had leaked out, the
investigation had been wound up – which takes us back to the
question of official passivity regarding Scientology in the US (see
note 14). “FBI Investigation of
Scientology: Already Over Before We Even Heard of It” by Tony
Ortega, Village Voice,
March 19, 2012.
24From
the Ex-Scientology Message Board thread: “Scientology
did not violate forced labor law, appeals court rules”. Karen
de la Carrière posts there as Karen#1.
25Page
four of the judgment.
27Page
four of the judgment.
28Although
I wrote some of these posts in January 2009, I was only able to
actually launch the site in March (for reasons I won't bore you
with).
Posts
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