Unpaid intern cannot bring sexual harassment claim under NYC human rights law, judge rules

A New York federal district court has ruled that a former unpaid intern for Phoenix Satellite Television US, Inc., cannot bring a sexual harassment claim under the New York City Human Rights Law, because the lack of compensation renders her unable to meet the requirement of employee status under the statute.

Judge P. Kevin Castel issued the ruling in Lihuan Wang v. Phoenix Satellite Television US, Inc., on Thursday. The alleged harassment included ongoing social and sexual overtures and physical touching by a bureau chief who supervised the plaintiff’s work.

As reported by Jay-Anne B. Casuga for the BNA’s Daily Labor Report (subscription required):

A female former unpaid broadcasting intern cannot bring a sexual harassment claim under the New York City Human Rights Law because she is not an “employee” within the meaning of the law, a federal judge in New York held Oct. 3, addressing an issue of first impression . . . .

. . . Relying on federal and New York case law, the district court said unpaid interns do not qualify as employees under Title VII of the 1964 Civil Rights Act or the New York State Human Rights Law because of the “absence of remuneration,” which is an “essential condition to the existence of an employer-employee relationship.”

O’Connor v. Davis (1997)

The district court cited favorably to the leading decision on the legal question of whether unpaid interns have standing to sue under employment discrimination laws, O’Connor v. Davis, a 1997 Second Circuit Court of Appeals decision involving a student social work intern who alleged that she was sexually harassed by a staff psychiatrist in the course of an internship with the Rockland Psychiatric Center in New York.

The plaintiff filed suit, claiming, in part, that she was subjected to sexual harassment in violation of Title VII of the federal Civil Rights Act. The Second Circuit Court of Appeals held that O’Connor was not an “employee” within the statutory meaning of Title VII, reasoning that compensation “is an essential condition to the existence of an employer-employee relationship.” The absence of any kind of salary, wages, health insurance, vacation and sick pay, or any promise of such direct or indirect remuneration from Rockland was fatal to O’Connor’s claim of employee status, and consequently, to the Title VII count of her complaint.

EEOC’s position, too

The holding of O’Connor v. Davis apparently represents the current position of the Equal Employment Opportunity Commission, the federal agency charged with interpreting and enforcing America’s employment discrimination laws. Blair Hickman and Christie Thompson reported on this question for ProPublica:

Federal policies echo court rulings. The laws enforced by the U.S. Equal Employment Opportunity Commission, including the Civil Rights Act, don’t cover interns unless they receive “significant remuneration,” according to commission spokesperson Joseph Olivares.

“At least with respect to the federal law that we enforce, an unpaid intern would not be legally protected by our laws prohibiting sexual harassment,” Olivares said in an email to ProPublica.

It’s unclear how many interns are sexually harassed at work. The commission doesn’t keep those statistics, according to Olivares.

***

October 7 additional comments: Because I wanted to post news of this case promptly, I didn’t spend a lot of time parsing out the legal and policy implications. But I’d like to add a few words now.

The court’s holding in this case raises the related issue of whether or not unpaid internships violate federal and state minimum wage laws, a topic that I’ve addressed frequently on this blog, such as this report on the June 2013 Glatt v. Fox Searchlight Pictures decision in which a federal district court held that unpaid interns were entitled to back pay. In instances where an unpaid intern should’ve been paid under the law, the employer benefits two-fold by claiming the lack of pay renders an intern unable to bring a discrimination or sexual harassment claim, no matter how bad the underlying alleged behavior. By not paying an intern in violation of the law, the employer also may escape liability for discrimination or sexual harassment. How’s that for a bad result?!

I soon will be posting a draft of a new law review article that discusses the many recent legal, policy, and advocacy developments concerning the internship economy. It will serve as an update and sequel to my 2002 article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), that discusses the above-mentioned O’Connor v. Davis decision in some detail.

For reasons I explain in my forthcoming article, I believe that the question of covering interns under employment discrimination laws should be dealt with separately from the issues of compensation under minimum wage laws.

***

October 14, 2013 update: Please go here for a short description and free download link to a draft of my new article, “The Legal and Social Movement Against Unpaid Internships” (forthcoming, Northeastern University Law Journal).

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

If you need a big picture, snapshot understanding of the historical origins of American employment law, look no further than the master-servant relationship.

“Master and servant” is a legal term ported over from English common law, centuries ago. It is what it sounds like, a term deeply rooted in hierarchical, subservient personal and occupational relationships. Black’s Law Dictionary (6th ed.), an authoritative legal source, defines it this way:

The relation of master and servant exists where one person, for pay or other valuable consideration, enters into the service of another and devotes to him his personal labor for an agreed period. The relation exists where the employer has the right to select the employee, the power to remove and discharge him and the right to direct both what work shall be done and the manner in which it shall be done.

Dig into legal digests used by lawyers to research points of law and you’ll see that “master and servant” continues to be used as a topical index heading. Furthermore, the dictionary definition above connects directly to the rule of at-will employment, which allows an employer to terminate an employee for any reason or no reason at all. The U.S. is one of a few industrialized nations to retain the at-will rule as its presumptive employment relationship.

Two previous articles help to illustrate the one-sidedness of at-will employment and its significance to the modern workplace:

“On Limiting the Abusive Exercise of Employer Power” (2011)

[Law professor Lawrence] Blades noted that the underlying assumptions supporting the dominant rule of at-will employment — which allows an employer to terminate an employee for any reason or no reason at all – were no longer applicable:

Such a philosophy of the employer’s dominion over his employee may have fit the rustic simplicity of the days when the farmer or small entrepreneur, who may or may not have employed others, was the epitome of American individualism. But the philosophy is incompatible with these days of large, impersonal, corporate employers; it does not comport with the need to preserve individual freedom in today’s job-oriented, industrial society.

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

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless.

In October I wrote a short post criticizing the rule of at-will employment, which allows an employer to terminate an employee for any reason or no reason at all. In America — in contrast to many other nations — at-will is the presumptive employment relationship.

This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

Workplace bullying targets winning unemployment benefits appeals in New York State

Thanks to a developing line of administrative appeal decisions, workers in New York State who resign their jobs due to bullying and employer abuse could still retain eligibility for unemployment benefits.

Under New York State labor law, workers who voluntarily resign without good cause are presumptively ineligible to receive unemployment benefits. Most other states follow a similar rule. Of course, this frequently leaves targets of workplace bullying in a bind when it comes to qualifying for unemployment benefits. All too often, quitting is the only way to escape the abuse.

That’s why I was so pleased to hear from James Williams, an attorney with Legal Services of Central New York, who sent news of a recent decision in a case he argued before the New York Unemployment Insurance Appeal Board.

Case Details

The claimant appealed a denial of unemployment benefits holding that he voluntarily resigned his job with a local government entity, without good cause. The Administrative Law Judge overruled the denial of benefits, rendering these findings and a decision:

The undisputed credible evidence establishes that the claimant left employment voluntarily . . . after being notified . . . that he was on probation, because he felt bullied, harassed and set up by his supervisor. I credit the claimant’s credible sworn testimony that his supervisor’s repeated criticism and scolding of him in a raised voice made him feel bullied and harassed, especially in the presence of other employees. I further credit the claimant’s credible sworn testimony that the supervisor’s actions including pointing and reprimanding him, consisted of the word “stupid”, and other language which embarrassed the claimant and that the claimant believed he was being ridiculed by the supervisor. An employee is not obligated to subject himself to such behavior. Given that the claimant had complained to the employer about the supervisor’s behavior just two months earlier, and that the supervisor’s mistreatment not only continued, but escalated, I conclude that the claimant had good cause within the meaning of the unemployment insurance Law to quit when he did. Additionally, while disagreeing with a reprimand or criticism about work performance may not always constitute good cause to quit, receiving reprimands in the presence of one’s co-workers may be. . . . Under the circumstances herein, the supervisor’s treatment of the claimant exceeded the bounds of propriety, with the result that the claimant had good cause to quit. His unemployment ended under nondisqualifying conditions.

Other Decisions

Attorney Williams relied upon previous decisions by the full Appeal Board holding that disrespectful and bullying-type behaviors that exceed the bounds of propriety (that appears to be the key phrase) may constitute good cause to voluntarily leave a job and thus not disqualify someone from receiving unemployment benefits. They may be accessed at the Unemployment Insurance Appeal Board website:

  • Appeal Board No. 571514 (July 3, 2013)
  • Appeal Board No. 559667 (February 28, 2012)
  • Appeal Board No. 558223 (January 25, 2012)
  • Appeal Board No. 549810 (September 10, 2010)

Jim added in an e-mail that potential New York claimants who may fit this scenario “are advised to take steps to try and save their jobs prior to quitting.  They will want to be able to show to the Department of Labor and to an ALJ that they took steps to try to change the situation – complaining to management, human resources, etc. – before quitting.”

Using These Decisions

The reasoning in these decisions is limited to unemployment benefits cases. Furthermore, the holdings of these cases are not binding upon unemployment benefits claims in other states. However, they can be brought to the attention of unemployment insurance agencies elsewhere as persuasive precedent.

In addition, this serves as an important lesson to those who may have been initially denied unemployment benefits after leaving a job due to bullying behaviors. It is not uncommon for initial denials to be reversed on appeal, and these cases provide genuine reason for optimism in situations involving abusive work environments.

***

Many thanks to Jim Williams, a former colleague at the Labor Bureau of the New York State Attorney General’s Office many years ago, for litigating these unemployment insurance cases and for bringing them to my attention. It is inspiring to see a former colleague continuing to do work that makes a positive difference in the lives of others.

Working Notes: Workplace bullying by taser, interns & sexual harassment, and more

Hello, dear readers! Here are several items of possible interest:

Alternet on alleged workplace bullying by taser in Texas

A claim of workplace bullying by taser is a first in my recollection, but here goes. Rod Bastanmehr reports for Alternet on a Texas man who has filed a lawsuit claiming he was repeatedly abused at work:

Bradley Jones, a 45-year-old Texas man is suing Republican state lawmaker Patricia Harless and her husband over what he cites as months of attacks and abuse while working for them. The couple owns Fred Finger Motors, which Jones has worked at since 2009, and are now facing assault and battery charges, as well as failure to provide a safe workplace.

. . . Jones’s suit argues that Sam Harless provided other employees with a taser, and that Harless would often film them sneaking up and using it on him. The series of incidents lasted over a period of nine months, with many of the videos posted online (though they have since been taken down).

MainStreet on workplace bullying

Susan Kreimer serves up a terrific overview of workplace bullying for MainStreet. Gary Namie (Workplace Bullying Institute), Pam Lutgen-Sandvik (North Dakota St U), and I were interviewed for it. Here’s a piece of my advice for bullying targets:

Because bullying situations and work environments vary, so do the strategies for self-defense. Employees who feel targeted “should read up on workplace bullying, try to understand what’s happening to them, avoid making rash decisions or engaging in reckless responses that may backfire, and instead attempt to assess their options carefully after doing their homework,” Yamada says.

NPR on how power can short circuit empathy

Here’s a piece that’s relevant to bullying bosses and nasty CEOs. Chris Benderev reports for National Public Radio on a new study by Canadian researchers showing how power changes brain responses:

Even the smallest dose of power can change a person. You’ve probably seen it. Someone gets a promotion or a bit of fame and then, suddenly, they’re a little less friendly to the people beneath them.

So here’s a question that may seem too simple: Why?

…[I]f you ask Sukhvinder Obhi, a neuroscientist at Wilfrid Laurier University in Ontario, Canada, he might give you another explanation: Power fundamentally changes how the brain operates.

Obhi and his colleagues, Jeremy Hogeveen and Michael Inzlicht, have a new study showing evidence to support that claim.

ProPublica on unpaid interns & sexual harassment protections

Blair Hickman and Christie Thompson write for ProPublica (here, via Salon magazine) on how unpaid interns are unprotected by federal discrimination and sexual harassment laws. They interviewed me for the piece:

In 1994, Bridget O’Connor began an internship at Rockland Psychiatric Center, where one of the doctors allegedly began to refer to her as Miss Sexual Harassment, told her that she should participate in an orgy, and suggested that she remove her clothing before meeting with him. Other women in the office made similar claims.

Yet when O’Connor filed a lawsuit, her sexual harassment claims were dismissed because she was an unpaid intern. A federal appeals court affirmed the decision to throw out the claim.

Unpaid interns miss out on wages and employment benefits, but they can also find themselves in “legal limbo” when it comes to civil rights, according to law professor and intern labor rights advocate David Yamada. The O’Connor decision (the leading ruling on the matter, according to Yamada) held that because they don’t get a paycheck, unpaid interns are not “employees” under the Civil Rights Act – and thus, they’re not protected.

So here’s the twist that I explain in greater detail in my 2002 law review article on the rights of interns: Employers who violate minimum wage laws by failing to compensate their interns can then turn around and claim insulation from  sexual harassment claims by saying that because the interns aren’t paid, they have no standing to sue under the federal employment discrimination laws!

TMZ Sports on an all-star lawsuit

TMZ Sports reports on a lawsuit brought against Major League Baseball for failure to pay some 2,000 people who :

Major League Baseball put roughly 2,000 people to work during  All-Star weekend in NYC last month and illegally paid them with giveaway items  like shirts and hats INSTEAD of cash, so says a new lawsuit.

. . . In the suit, John Chen says he worked  17 hours in 4 days at the All-Star Weekend festival — doing everything from  stamping wrists to stuffing flyers into bags and even filing paperwork … all  assignments that would otherwise have to be done by paid employees.

. . . Basically, Chen believes the concept of a  “volunteer” workforce violates federal and state labor laws — and the  “volunteers” should be paid at least minimum wage … which, in NY, is $7.25 per  hour.

This is a spin on the unpaid intern issue, but it carries slightly different implications. Surely Major League Baseball can afford to pay these people the minimum wage for their work on this lucrative, marquee event. In addition, it also says something troubling about the willingness of people to provide free labor to a wealthy, profit-making organization. Is it the appeal of basking in the reflected glow of athletic and celebrity glory?

***

New essay

I recently posted a draft of a new essay, “If It Matters, Write About It: Using Legal Scholarship to Effect Social Change,” which will be published in a new student periodical at Suffolk University Law School to which I’m serving as faculty advisor. Here’s the abstract, and go here to download the essay:

Abstract: 
This essay centers on the concept of “intellectual activism,” discussing how legal scholarship can be used as the foundation for social change work. It recounts and reflects upon the author’s ongoing work in advancing issues such as workplace bullying and the rights of student interns. It concludes with advice on how to be effective in an intellectual activist mode. The essay will be published in the inaugural issue of Bearing Witness: A Journal of Law and Social Responsibility, a new student-run periodical at Suffolk University Law School.

Number of Pages in PDF File: 9

Working Notes: Co-workers as government spies (heh), legality of employer surveillance tactics, and password protection advice

There’s a spy/surveillance/privacy theme running through these offerings:

WSJ Marketwatch on workers as government spies (just kidding)

In a delightfully tongue-in-cheek piece for the Wall Street Journal‘s MarketWatch column, Brett Arends quotes from disruptive tactics specified in a World War II-era U.S. intelligence manual for agents to identify 10 signs that your co-worker may be a government spy, with a mission to destroy productivity. For example:

  • “They love committee meetings.”
  • “They nitpick.”
  • “They delay everything with endless worries.”
  • “Mismanage.”

For each of the 10 signs, Arends quotes directly from the intelligence manual! It’s hilarious stuff, and the quotes really nail it. Hence Arends’s serious point: There is no justification for the maddening, crazy-making behaviors that undermine morale and productivity at work.

Workplace Fairness on surveillance at work

Recently Workplace Fairness updated its Q&A page on the legality of various potential surveillance practices at work, including monitoring of phone calls and e-mails and on-site videotaping. Here are some of the questions addressed:

  • “Can my employer videotape me?”
  • “Can my employer monitor my telephone calls?”
  • “Can my employer monitor my computer and e-mail activities?”

There are 11 questions in all. To access the page, you may have to click a quick online legal disclaimer.

Next Avenue on password protection

Here’s one for the do as I say, not as I do department: Betsy Mikel, blogging for Next Avenue, provides a very useful, detailed advice column on creating and storing secure online passwords. Here’s a piece of it:

There are some guidelines for creating a strong password as well as ways to remember all your new (or old) passwords. Online passwords should:

    • Contain at least eight characters, preferably more.
    • Be composed of a combination of letters, numbers and symbols (like * or $ or #).
    • Include a combination of uppercase and lowercase letters.
    • Not be an actual word.
    • Not use your real name, username or personal information, like your birthday, license plate number or address.

Not too long ago, I wouldn’t have considered this a work-related concern. But even for online information sources related to my work, the number of password-protected sites has grown exponentially. I’m sure I’m not alone in this regard.

Workplace bullying: Addressing the annual conference of the Association of Labor Relations Agencies

ALRAlogo

Yesterday I had the privilege of presenting a speech on workplace bullying at the 62nd annual conference of the Association of Labor Relations Agencies in Washington, D.C. It was a wonderful opportunity to discuss this topic with some 200 of the most accomplished labor relations commissioners, attorneys, and officials in North America.

The ALRA describes itself as “an association of impartial government agencies in the United States and Canada responsible for administering labor-management relations laws or services.” It promotes interagency cooperation, “high professional standards,” “public interest in labor relations,” “improved employer-employee relationships,” and “peaceful resolution of employment and labor disputes.” The annual conference provides its members with continuing education on labor relations topics and opportunities to network and share information.

My remarks

I was part of “Advocates Day” (agenda here), a component of every ALRA conference that invites people outside of the organization to discuss developing labor relations issues. I started with a basic overview about workplace bullying and its effects on workers and organizations, went into a quick summary of U.S. and Canadian legal developments, and closed with a cluster of personal observations about workplace bullying.

The speech was very well received. Despite that my talk came at the end of a long day of distinguished panelists and speakers, the delegates were engaged and attentive, and our conversations spilled over to the reception that followed.

I was pleased about the response at another level, too: This is one more sign that workplace bullying is entering the mainstream of North American labor and employee relations. Ten years ago, this speaking invitation would not have transpired.

The conference

At a time when, at least in the U.S., the very concept of collective bargaining is being challenged by extremist forces, how refreshing it was to be part of a conference that embraces a commitment to healthy labor relations. Multiple speakers shared stories and perspectives about how management and labor can work together toward common interests and attempt to resolve differences in peaceful ways.

In my judgment, the Canadian perspective cannot be overlooked, and it’s good for we Americans to be exposed to it. My Canadian colleagues will be quick to admit that labor relations up north fall short of utopia, but they do manage to practice their craft with fewer sharp elbows than in the U.S.

Many thanks

I’d like to give a special shout out to the Program Committee, with affiliations noted to show the breadth of agencies that are part of the ALRA: Co-Chairs Scott Blake (Federal Mediation and Conciliation Service, U.S.) and Jennifer Webster (Federal Mediation and Conciliation Service, Canada), and members Ernie DuBester (Federal Labor Relations Authority), Gary Shinners (National Labor Relations Board), Pat Sims (National Mediation Board), Catherine Gilbert (Ontario Labor Relations Board), Jennifer Abruzzo (National Labor Relations Board) and Danielle Carne (Wisconsin Employment Relations Commission).

I had not traveled within the circles of the ALRA before this. Thus, it was a leap of faith for them to give me a generous one-hour time slot. (Put it this way: If your sole speaker for a featured, 60-minute slot is a dud, you’ll be hearing about it!) This enabled me to give a talk with real substance, while leaving time for a lively Q&A segment. It was an honor to be a part of the day.

The ongoing disconnect: Employment law and worker well-being

A quick perusal of topics at a major international law & mental health conference is all I need to remind me of how employment law is way behind other legal fields in connecting to mental health and psychology.

As I wrote in my last post, I’m at the biennial Congress of the International Academy of Law and Mental Health in Amsterdam, Netherlands. The program book (pdf here) lists the dozens of panels offered each day during the week-long gathering, and a cursory review yields the dominance of topics concerning criminal justice, health care, family law, juvenile law, substance abuse, and forensics. But there is scant evidence of workplace issues, even in the many sessions related to therapeutic jurisprudence, the school of legal thought that examines the therapeutic and anti-therapeutic properties of law and legal institutions.

Compare this to the recent “Work, Stress and Health” conference I wrote about last month – another biennial, international gathering – where researchers and practitioners in fields such as industrial/organizational psychology, occupational health psychology, and occupational safety and health are positively immersed in the linkages between public policy and the psychological aspects of worker health.

Nevertheless…

I get a lot out of this conference even in the absence of many presentations directly addressing employment law & policy. As I’ve noted in previous posts, therapeutic jurisprudence has quickly become a collegial theoretical “home” for my legal interests, in that it makes eminent sense to me that the law should promote, rather than undermine, psychologically healthy outcomes. Accordingly, I find many of the ideas exchanged here to be an easy “port over” to the law of the workplace and the practice of employment law.

For example, earlier this week I listened to a simply wonderful presentation by Erna Haueter, a domestic relations lawyer in Zurich, Switzerland, who explained how she uses stress reduction and relaxation techniques with her clients who are going through emotionally difficult divorce proceedings. Haueter drew upon insights from neuropsychology to explain the effects of stress on her clients, negatively impacting their ability to act in their own best interests.

Of course, her words resonated loudly with me, as I have seen countless individuals dealing with similar stress levels due to bullying and other forms of mistreatment at work. I thought to myself how great it would be if plaintiffs’ employment lawyers were taught how to use these relaxation techniques with their clients.

A challenge

My belief in the need to strengthen linkages between employment law and mental health was reaffirmed during the course of a conversation I had with an Israeli lawyer and doctoral student who is planning to do her thesis on some aspect of therapeutic jurisprudence and employment law. She expressed surprise over the paucity of work linking these two areas, suggesting that they were a natural fit together. We discussed the many relevant psychological aspects of employment law that could form the basis of a very promising thesis topic.

Those of us who understand these linkages need to do a better job of persuading fellow employment and labor law scholars to incorporate these perspectives in their work. The two dominant frames for examining employment law & policy, namely, economics (leaning right) and civil & labor rights (leaning left), yield important insights. But mental health and emotional well-being are equally important and deserve a place at the roundtable of this discussion.

***

Go here to download a copy of my 201o law review essay, “Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the Workplace.”

Working notes: On screening out sociopaths, the anti-worker Supreme Court, heroic flight attendants, and much more

I’ve got lots of good stuff to share with you today. Here are seven items that may be of interest:

Forbes on Employee Screening for Sociopaths

Rob Asghar writes for Forbes magazine on “How To Screen Out The Sociopath Job Candidate.” His piece features psychiatrist Martha Stout, author of the compelling and chilling The Sociopath Next Door (2005):

I asked psychiatrist Martha Stout . . . how hiring managers and corporate boards can avoid unwittingly unleashing a sociopath within their organizations—especially at the senior levels.

“More and more businesspeople people are asking me about this,” she says.  “After all, having a sociopath can be expensive.” Indeed, they often aren’t extracted from an organization until they’ve caused permanent injury.

Dr. Stout offers four pieces of advice. Check out the full article if you’d like to read more. (You’ll probably have to click through a subscription invitation pop up first.)

I’m glad to see this topic getting mainstream media attention. While some “jerks” and abrasive bosses can be coached and counseled to interact with others more appropriately, those who behave abusively are in a different category. Among the latter include those with sociopathic and psychopathic traits, many of whom perpetrate or orchestrate the most damaging instances of workplace bullying and abuse.

Hat tip to eBossWatch

LA Times on Supreme Court Employment Law Decisions

Alana Semuels reports for the Los Angeles Times on employment cases decided during the recently concluded term of the Supreme Court, which includes a quote from me, among many others:

“You can see this common thread of making it more difficult to have your day in court,” said David Yamada, a professor at Suffolk University Law School in Boston. “The legal climate for employees is a tough one.”

The current incarnation of the U.S. Supreme Court continues to interpret federal employment and labor laws in ways that make it increasingly difficult for workers pursuing legal claims. It is fair to say that this is the most anti-worker Supreme Court of the modern, post-World War II era.

USA Today on the Heroic Flight Attendants of Asiana Flight 214

Ben Mutzabaugh from USA Today reports that last weekend’s crash landing of Asiana Airlines Flight 214 at San Francisco International Airport could’ve been much worse had it not been for the calm, brave responses of the flight attendants. Here’s his lede:

Asiana Airlines attendants are being lauded as heroes for their role in helping passengers to safety after the crash-landing of Flight 214 at San Francisco on Saturday.

Lee Yoon-hye, described by The Associated Press as the “cabin manager” who was “apparently the last person to leave the burning plane,” was among those being called out for her efforts to lead fliers to safety.

The heroic, life-saving work of the flight attendants is becoming one of the important backstories of this event. Read Mutzabaugh’s article for more details.

Next Avenue on Back to School at Midlife

Nancy Collamer, blogging for Next Avenue, offers some advice for workers who are considering degree and certificate programs to enhance their employability:

I suspect many Americans in their 50s and 60s are considering going back to school to improve their career prospects.

…But college isn’t cheap and there’s no guarantee that further schooling will lead to a new job or fatten your paycheck.

So when does it pay to go back to school after age 50 or so?

It’s a good piece if you’re thinking about a return to school. The Next Avenue site has become one of my favorites. Take a look and click around!

Dean & Provost on Being Thrown Under the Bus

J. Dirk Nelson, writing for Dean & Provost, a publication for academic administrators, addresses a situation that occurs all too often in academe — and elsewhere: That of being “thrown under the bus,” i.e., being scapegoated or wrongfully blamed. Here’s a snippet:

Political forces in colleges are never an easy ride, and unfortunately many careers have been shattered or significantly altered by the seemingly petty, arbitrary, capricious, discriminatory and often childish politically driven actions of others.

…(T)here certainly exist unsavory political forces on campuses, and consequently, a colleague (or you) may be “thrown under the bus” i.e., made the scapegoat or blamed for something that wasn’t his responsibility in the first place.

. . . The appropriate responses to being thrown under the bus — while possibly difficult in practice — are simple and sound in theory: Have a positive attitude, vent, behave with professionalism, and learn.

Do you agree or disagree? Nelson gets into a lot more detail in the full article, exploring a topic that will resonate with many people who are familiar with workplace bullying. Wrongful blame for mistakes made by others is high on the list of common bullying tactics.

Hat tip to Mike Schlicht, New York Healthy Workplace Advocates

Followup to Blog Post on the Stages of Dealing with Workplace Bullying

Earlier this month, I wrote a piece on what I characterized as the four stages of dealing with workplace bullying: Recognition, response, recovery, and renewal. Since then, thoughtful readers have shared their own stories of being bullied and the aftermaths.

For some honest, raw, courageous testimony about the toll that this form of abuse can exact, scroll down to the several dozen comments following my blog post, here.

Unpaid Internship Ruling Spurs Media Coverage

A federal court decision in June holding that unpaid interns working on the Fox Searchlight Pictures production of “Black Swan” were entitled to back pay under federal and state minimum wage laws has resulted in an abundance of media coverage. Here are three recent articles for which I was interviewed:

Bloomberg.com, Jim Snyder & Christie Smythe, June 27

“This question of whether private-sector internships violate the minimum wage laws has been sort of a sleeping-giant issue for many years,” said David Yamada, director of the New Workplace Institute at Suffolk University Law School in Boston. “The absence of payment is done with a wink and a nod. Interns know they better not make any trouble about this.”

Boston Globe, Taryn Luna, June 26

The majority of students who accept unpaid internships can only do so on their parents’ dime. This creates both a class issue, where more students from affluent families get a foot in the door, and a situation where employers limit their applicant pool, Yamada says.

In These Times, Michelle Chen, June 24

David Yamada, a labor law specialist at Suffolk University Law School, comments via email, “We’ll probably never know how many people from modest backgrounds don’t even bother applying for unpaid internships because they know they can’t afford it. But there surely is a strong element of economic class bias in this practice.”

. . . Yamada says that since it was filed in 2011, the Fox lawsuit has “led to the creation of informal networks of former interns and lawyers weighing the possibility of bringing lawsuits to challenge unpaid internships,” and has since developed intern networks that “are coalescing via social media and face-to-face gatherings. This is becoming a genuine social and legal movement.”

Working Notes: On the trauma of job loss, retaliatory e-mail surveillance, and Costco as the good company

Dear readers, here are three articles worth your attention:

Experiencing a layoff

In an unusually personal piece, Carey Goldberg, health writer for WBUR, Boston’s NPR news station, blogs about her experience of being laid off six years ago by the Boston Globe:

I went back to visit my old parking lot at The Boston Globe this week. For more than six years, I commuted to the Globe along the crawling traffic of the Southeast Expressway, travel mug in hand. But what I remember most about that parking lot is crying in it.

It was 2009. The Globe was in a major financial crisis, like much of the country. Brian McGrory, then the Metro editor, had just called me in to his office to warn me that I was almost certainly about to lose my job.

I held it together in his office, but then when I came out into the parking lot to call my best friend, I felt a wave of shame and insult engulf me. I knew better, but for just that moment, I felt — worthless.

She segues from her own experience to input from experts on the trauma of experiencing a layoff. It’s a thoughtful, informative post that all too many people will find validating.

E-mail surveillance as a form of retaliation

Ohio management employment lawyer Jon Hyman, blogging for Workforce Management, raises a thorny legal question. Most employers have the right to inspect employees’ company e-mail accounts. But what if an employer starts to do so with an individual employee only after she has filed a complaint or lawsuit, such as a claim of sexual harassment? Here’s part of his read on this:

Could the email surveillance, in and of itself, be an adverse action sufficient to support a claim of retaliation? The legal standard for an adverse action sufficient to support a claim of retaliation is very broad. Anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” qualifies as a retaliatory adverse action. If you don’t regularly review employee email accounts, and only start examining an employee’s electronic activities after that employee engages in some protected activity, might that dissuade others from engaging in protected activity?

Hyman’s wise advice to employers is not to engage in such surveillance in a targeted manner.

Costco’s enlightened labor relations practices

Brad Stone, in a feature article for Business Week, examines Costco’s approach to labor relations and the management philosophies of its new CEO, Craig Jelinek, and his predecessor, company co-founder Jim Sinegal. Here’s the lede:

Joe Carcello has a great job. The 59-year-old has an annual salary of $52,700, gets five weeks of vacation a year, and is looking forward to retiring on the sizable nest egg in his 401(k), which his employer augments with matching funds. After 26 years at his company, he’s not worried about layoffs. In 2009, as the recession deepened, his bosses handed out raises. “I’m just grateful to come here to work every day,” he says.

This wouldn’t be remarkable except that Carcello works in retail, one of the stingiest industries in America, with some of the most dissatisfied workers. . . . In its 30-year history, Carcello’s employer, Costco, has never had significant labor troubles.

The Great Recession has triggered some brutal treatment of workers. That’s why it’s extra important to highlight companies that are taking a different approach.

Unpaid interns win lawsuit against Fox Searchlight Pictures

A federal district court has handed two former unpaid interns for the Fox Searchlight Pictures production of “Black Swan” a big win, holding that the company owes them back wages under U.S. and New York minimum wage and overtime laws. The court also certified a class action for the other unpaid interns working on the production.

In Eric Glatt, et al., v. Fox Searchlight Pictures, Inc., the Honorable William H. Pauley III, Judge of the U.S. District Court, Southern District of New York, held that Glatt and co-lead plaintiff Alex Footman were employees for purposes of federal and state labor standards laws and thus entitled to compensation. Judge Pauley also granted plaintiff Eden Antalik’s motion class certification under New York labor standards law and granted conditional class certification under federal labor standards law.

Media coverage

Steven Greenhouse, reporting on the decision for the New York Times, noted its potentially wide-ranging impact:

The case could have broad implications. Young people have flocked to internships, especially against the backdrop of a weak job market.

Employment experts estimate that undergraduates work in more than one million internships a year, an estimated half of which are unpaid, according to Intern Bridge, a research firm.

In the ruling, the judge said unpaid internships should be allowed only in very limited circumstances.

. . . Some employers have asserted that they have free rein not to pay interns as long as the interns are receiving college credit. But Judge Pauley said receiving academic credit was of little importance in determining whether interns should be paid.

Eriq Gardner, reporting for the Hollywood Reporter, saw the implications for the entertainment industry, which frequently hires unpaid interns:

In a ruling that is likely to be well read throughout Hollywood and maybe Corporate America at large, a federal judge on Tuesday has handed a couple of the interns suing Fox Searchlight a victory on summary judgment and also certified a class action over the internship programs of Fox Entertainment Group.

Appeal planned

This case is far from over. Fox Searchlight Pictures has indicated it will file an appeal of the ruling, which will be heard by the Second Circuit Court of Appeals.

Until recently, the question of whether unpaid internships violate federal and state minimum wage laws has been largely untested in the courts. The Second Circuit is among the most influential of the federal appeals courts, and its decision will have a significant impact, legally and in businesses across the country.

Good news

But for now, this is very good news for those who have questioned the often exploitative, exclusionary practice of unpaid internships. Judge Pauley’s decision is one of first impression, and until an appeals court rules on the case, it stands as the most authoritative judicial pronouncement on this issue.

***

For more

The full court decision may be accessed here.

Intern Labor Rights has compiled an excellent list of resources on unpaid internships.

The list includes my 2002 Connecticut Law Review article, “The Employment Law Rights of Student Interns,” freely downloadable here, that discusses many of the legal issues surrounding unpaid internships.

And here’s a post I wrote last year on the emerging intern rights movement.

***

June 13 update

Here are two stories I was interviewed for about the decision, which is getting a lot of media attention:

Associated Press piece by Sam Hananel (via U.S. News)

ProPublica piece by Blair Hickman and Jeremy Merrill – ProPublica is a public interest investigative journalism center that is launching a project examining America’s “intern economy.”

The Outten & Golden law firm, which represents plaintiffs Eric Glatt and Alex Footman, has announced the filing of a class-action lawsuit against Conde Nast, claiming unpaid wages for interns.

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