Visiting Louisville to talk about workplace bullying and the law

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I was fortunate to make my first-ever visit to Louisville, Kentucky, to speak at the annual Warns-Render Labor and Employment Law Institute, a major regional continuing legal education program sponsored by the University of Louisville’s Brandeis School of Law.

I gave an overview of workplace bullying and attendant legal issues. I was delighted to be joined by Indiana attorney Kevin Betz, lead counsel on the Raess v. Doescher litigation that culminated in a 2008 Indiana Supreme Court decision and helped to bring wide attention to legal issues surrounding workplace bullying. Here’s what I wrote about the case in 2009:

In the 2008 case of Raess v. Doescher, the Indiana Supreme Court affirmed a jury award of $325,000 for assault to a perfusionist (operator of “a heart-lung machine during open heart surgeries”) who brought an action against a surgeon for an altercation at a hospital. The claim was based on the following factual allegations:

(T)he defendant, angry at the plaintiff about reports to the hospital administration about the defendant’s treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and puts his hands up, believing that the defendant was going to hit him…. Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff, “you’re finished, you’re history.”

The Court’s decision was based largely on procedural and evidentiary issues. It rejected a challenge to expert testimony about workplace bullying rendered by Dr. Gary Namie for the plaintiff, finding there was nothing in the record to suggest that Namie’s testimony was inadmissible, and ultimately holding that the issue was not properly preserved for appellate review. It also held that the trial court “did not abuse its discretion in refusing” the defendant’s tendered jury instruction concerning workplace bullying.

The legal impact of Raess v. Doescher with regard to workplace bullying is modest because of the limited scope of the Indiana Supreme Court’s holdings. It created no new legal claim, and did not expand substantive tort law in a way that might pave the way for future plaintiffs. However, the decision has received national attention because the media characterized it as a successful workplace bullying claim. It has been cited as evidence of a growing liability risk that counsels employers to take workplace bullying more seriously.

Continuing legal education programs are a useful way to introduce legal issues relevant to workplace bullying to practicing attorneys, and this was an enjoyable, albeit all-to-brief(!) opportunity to do so. Many thanks to the folks at the University of Louisville, especially professor Ariana Levinson, ombudsman Tony Belak, conference chair Don Meade, and administrator Margaret Bratcher for facilitating my visit and their kind hospitality.

Tennessee directs commission to develop workplace anti-bullying policy for state’s public employers

Bill signing ceremony with TN Gov. Haslam (Photo: Rep. Parkinson's Office)

Bill signing ceremony with TN Gov. Haslam, with sponsor Rep. Parkinson in gray suit on the left (Photo: Rep. Parkinson’s Office)

Tennessee has enacted legislation directing a state commission to develop a model workplace anti-bullying policy for use by public employers within the state. Here’s a brief summary from the Healthy Workplace Bill national campaign website:

Public sector agencies (all branches of state, county, metropolitan and municipal governments) are given an incentive to adopt the model policy to prevent abusive conduct in the workplace, which will be created before March 1, 2015 by TACIR, the Tennessee advisory commission on intergovernmental relations. Alternately, government employers may create their own policy if it (1) assists employers in recognizing and responding to abusive conduct, and (2) prevents retaliation against any reporting employee.

State Representative Antonio Parkinson, joined by State Senator Jim Kyle, were lead sponsors of the legislation, which originally was filed as a more comprehensive bill including most elements of the prototype Healthy Workplace Bill. I appreciate the productive discussions that Rep. Parkinson held with Gary Namie (Workplace Bullying Institute) and me about the legislation, and while the final result is not as substantial as the original bill, it exemplifies the growing recognition that law and public policy must respond to bullying in the workplace.

Here’s what Dr. Namie said about the legislation and Rep. Parkinson’s work:

We praise passage of Rep. Parkinson’s bill, making Tennessee the first state to acknowledge the dangers of abusive mistreatment of public employees — state agencies to municipalities — by taking the policy-driven approach adopted by a growing list of local ordinances throughout the country. During his consultations with us, he proved to be a true champion for working people.

I’ll have more to report about this legislation and related developments in a future post.

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Related post

Georgia’s Fulton County draws from Healthy Workplace Bill in adopting anti-bullying policy (2012)

Forbes on firing your bad boss

For those toiling under bad or even abusive bosses, here’s the stuff of fantasies: How can I get my boss fired?

Susan Adams, writing for Forbes.com, took on the question, interviewing experts in employee relations (including Gary Namie of the Workplace Bullying Institute) on the likelihood of underlings being able to push out a terrible boss. Her verdict:

Countless workers fantasize about getting their boss fired, but few succeed. I talked to five career coaches, a corporate consultant, a lawyer, and a management professor about how disgruntled workers might oust their superiors, and although I gathered a handful of success stories, all of the sources agree: Think many times over before you try it, because you will likely fail.

Okay, so it’s not exactly a surprising conclusion. Nevertheless, the full article does include stories about workers who made it happen, albeit usually with a lot of time and effort.

The gloomy prospects of staging a palace coup against lousy leadership reflect a broader reality about the typical American employer. The average workplace is a command-and-control operation from the top, and little effort is made to solicit rank-and-file input on the performance of organizational leaders.

This is especially so in the vast majority of sites where no union is present to serve as a source of countervailing power. Most workers are at-will employees who may be terminated for any reason or no reason at all, so long as the firing is not grounded in some illegal motive such as discrimination. And even though retaliating against workers for labor activism may be illegal, in many instances these violations are not remedied.

No wonder, then, that Adams concludes her article with advice from career counselors suggesting that unhappy workers devote their efforts to securing new employment rather than going after the boss. It probably makes sense, even if it means that some workplaces will continue to inflict bad leaders on revolving doors of workers for the duration.

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Related posts

“Master and servant”: The roots of American employment law (2013)

At-will employment and the legality of workplace bullying: A brutal combo punch (2011)

Dignity instead: The “markets and management” framework for U.S. workplace law should go

American employment law has been dominated by a belief system that embraces the idea of unfettered free markets and regards limitations on management authority with deep suspicion.  Under this “markets and management” framework, the needs for unions and collective bargaining, individual employment rights, and, most recently, protection of workers amid the dynamics of globalization, are all weighed against these prevailing norms.

The creation of New Deal labor and social legislation during the 1930s, and the expansion of employment rights during the 1960s and 1970s, provided tangible benefits to workers in terms of collective bargaining, minimum wage, discrimination, and modest wrongful discharge protections.  However, these gains have been under continuous and vigorous attack for several decades, to the point where today the state of American employment relations is at a critical juncture.

For the sake of workers and organizations alike, we must rethink this dominant framework. Thanks to the publication of economist Thomas Piketty’s groundbreaking Capital in the Twenty-First Century (2014) — an exhaustive study of income inequality in some 20 nations (including the U.S.) — we have a new understanding of how unbridled capitalism has led to huge concentrations of wealth benefiting the super rich. Furthermore, concerns about job security and working conditions, bullying at work, and steadily lower union membership levels continue to raise important questions about the well-being of everyday workers and their role in shaping the modern workplace.

In addition, the courts and legal process offer marginal solace for mistreated employees. Despite the seeming abundance of potential legal protections for many American workers, effectuating one’s employment-related rights can be a lengthy, expensive, and stressful undertaking.  Employment lawsuits are costly and time consuming for both employees and employers.

Transforming all this is no easy task, but let’s start with the fundamental conviction that human dignity should supplant “markets and management” as the central framework for analyzing and shaping American employment law.  Simply put, we need to reframe the intellectual and rhetorical debate over employment law and policy to focus on the dignity and well-being of workers.

Within such a “dignitarian” framework, there is plenty of room for market-based competition, entrepreneurship, individual responsibility, and sound management prerogative.  Furthermore, the call for dignity in the workplace is not a rallying cry for state ownership, runaway taxation, or regulatory micromanagement of the workplace.  Rather, it is about promoting the complementary goals of healthy, productive, and socially responsible workplaces within a mix of robust private, public, and non-profit sectors.

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Note: This post is a slightly revised and edited version of the introduction to my 2009 law review article, “Human Dignity and American Employment Law,” University of Richmond Law Review. I find myself returning to this piece periodically to draw out basic themes that I want to share with readers of this blog. The idea of supplanting the dominant “markets and management” framework with a commitment to human dignity is chief among the core precepts. I further developed these ideas in a 2010 law review essay, “Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the Workplace,” Florida Coastal Law Review.

Roundup on bullying and mobbing in higher education

On Thursday I’m presenting on workplace bullying in higher education at the annual continuing legal education conference of the National Association of College and University Attorneys, being held this year in Boston. I’ll be sharing a lot of the knowledge and insights I’ve gained about bullying and mobbing behaviors in academe, and then examining the legal issues they raise for institutions of higher education.

I thought this would be a good occasion for me to update my primary (and very popular) post on bullying & mobbing behaviors in academe, as well as summarize several other relevant posts. Here goes:

Revised “Foundational” Post

I just revised my very first post (2009) on bullying in academe, Workplace bullying and mobbing in academe: The hell of heaven?, to include updated information and sources:

Academic life can be a great thing, providing one with the opportunity to engage in teaching and educational activities, scholarly research and writing, and myriad forms of public service.

However, the culture of academe can be petty, mean, exclusionary, competitive, and hierarchical.  Bullying and mobbing behaviors occur with surprising frequency, and sometimes with stunning brutality.  They can transcend the type of institution, academic disciplines, and political beliefs.

Other Relevant Posts

UMass Amherst launches campus-wide workplace anti-bullying initiative (2013)

Yesterday the University of Massachusetts Amherst, the flagship entity of a major public university system, publicly launched a workplace anti-bullying initiative with a campus symposium that attracted over 500 UMass employees. This remarkable turnout, which included staff, faculty, and administrators, was over triple the number of RSVPs for the event.

…I had the privilege of presenting the keynote address, and one of the lasting memories I’ll have is that of standing at the podium and seeing the large auditorium fill with people, with some having to stand even after dozens of extra chairs were brought in to accommodate the overflow.

Illuminating bullying, mobbing and conformity in academe (2012)

First, the value placed on compliance empowers some to bully others who won’t go along. A minor “rebellion” such as declining to follow a suggestion for revising a paper or dissertation, or a major one such as refusing to vote a certain way at a meeting, can trigger retaliatory responses. Graduate students and junior faculty are especially at risk in this regard.

Second, the embrace of authority explains the frequency of “puppet master” bullying and genuine mobbing in academic workplaces. Especially in academic workplaces that cannot tolerate dissent or diversity of opinion, individuals seen as not being with the program may face an onslaught of hostility or isolation. These behaviors may be inflicted on anyone, ranging from a graduate student to a senior tenured professor.

Study on incivility toward graduate students reports effects similar to workplace bullying (2011)

During the past decade, we have learned a lot about incivility, bullying, and other negative behaviors in the workplace. However, we don’t know much about similar forms of mistreatment in academic settings.

That void is what led Susan Stewart (Western Illinois U. — Quad Cities), Nathan Bowling (Wright State U.), and Melissa Gruys (Wright State U.) to develop a study that asked graduate student members of the Society for Industrial and Organizational Psychology (SIOP) about their experiences with anti-social behaviors by faculty members and fellow students.

 

Mixing psychology and law: A brief report from New Orleans

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On Friday I gave a short presentation, “How Employment Law and I/O Psychology Exemplify the Value of Law and Psychology Cross-Pollination,” at the annual meeting of the American Psychology-Law Society (AP-LS) in New Orleans. AP-LS is an affiliate of the American Psychological Association.

Despite the wordy title, my remarks were a conversational effort to build more bridges between the worlds of industrial/organizational psychology and employment law. As an example of how such partnerships can enrich both law and psychology, I discussed my recent work with the APA’s Center for Organizational Excellence in helping to develop a webpage and educational video on workplace bullying and my ongoing participation in the biennial “Work, Stress and Health” conference co-sponsored by the APA.

I was part of a panel that examined how AP-LS can attract more participation from lawyers and legal academicians. My fellow panelists were all noteworthy members of the therapeutic jurisprudence community: Law professors David Wexler, Michael Perlin, and Heather Ellis-Cucolo, and psychologist Astrid Birgden.

AP-LS presidential address

I was delighted that our panel was preceded by a morning address by AP-LS president Jennifer Skeem, who urged the organization to become more innovative and broad-ranging in its appeal and its work. Her talk was largely an elaboration upon these three points:

  • “Target a broader audience” — This includes legislators and policy makers.
  • “Tackle bigger problems” — The AP-LS should practice its mission to advance individual well-being, justice, and human rights.
  • “Make ‘interdisciplinary’ real” — The AP-LS should interact more with legal scholars, public policy analysts, and scientists.

Dr. Skeem’s remarks set the stage nicely for our panel discussion later that afternoon. I hope that we made a strong case for greater collaboration between psychologists and lawyers.

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David Wexler and Michael Perlin will be among those speaking in Boston on Friday, April 11, as part of a symposium on therapeutic jurisprudence. For more details, see my blog post from last Monday.

The dignity of a living wage

Across America, labor activists and other progressives are calling for a higher federal minimum wage, often citing the personal financial challenges that confront low-paid retail and fast food workers. The current minimum wage is $7.25/hour, though some states have adopted a slightly higher one. Advocates are calling for a new minimum wage ranging from $10.00 to $15.00 an hour.

Whenever a minimum wage hike is proposed or debated, opponents claim that doing so will reduce jobs. At the far end of that spectrum, virulent opponents of any minimum wage law claim that such government mandates are “job killers.”

Yes, I suppose if you got rid of the princely $7.25/hour minimum wage, you could take the same hourly rate and pay three people $2.00/hour and still have a $1.25/hour as a bonus for the CEO. But that’s not “job creation,” it’s exploitation. Take away the minimum wage and you get a labor situation like that in Bangladesh, where wealthy corporations pay factory workers a pittance and subject them to dangerous working conditions. (After all, American factory jobs moved overseas to avoid paying workers good wages and benefits!)

Current minimum wage and low-wage earners often find themselves having to access public benefits such as food stamps to get by. The low minimum wage means, in effect, that American taxpayers are indirectly subsidizing corporations such as Walmart and McDonald’s and their shareholders by supporting living expenses for workers who can’t afford to live on their paltry paychecks alone.

Above all, we need to frame this debate in terms of human dignity. Okay, so maybe that high school senior from an upper middle class family who works part-time to earn spare cash can get by on $7.25/hour. But for those supporting themselves and others, a full-time job at least should pay for the basics. In fact, let’s remember that Congress’s intent behind enacting the federal minimum wage law during the heart of the Great Depression of the 1930s was to provide a living wage. It’s a shame that we have to invoke the hardship of our last systemic economic meltdown to remind ourselves of that.

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