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

photo-24

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.

“Rebellious Lawyering” conference: Discussing origins and meaning of the intern rights movement

From the Rebellious Lawyering conference program book

From the Rebellious Lawyering conference program book

On Friday I was part of a terrific panel discussing unpaid internships at the annual Rebellious Lawyering conference, held this year at Yale Law School. Among other things, we discussed how the emerging intern rights movement got started and how the seeds of litigation challenging unpaid internships were planted. It was an honor to be in the presence of three individuals who are pioneers in the intern rights movement, Eric Glatt, Ross Perlin, and Rachel Bien. More about their signature roles below…

Path to pathbreaking lawsuit

My connection to this august group came about from an article I wrote over a decade ago.

In a 2002 law review article, “The Employment Law Rights of Student Interns” (Connecticut Law Review), I set out a legal framework arguing that many unpaid internships violated minimum wage laws. Frankly, it didn’t cause much of a stir. Rather, over the years it attracted a handful of citations in other law review articles, and this was pretty much about it.

That changed when writer Ross Perlin cited and touted the article in his seminal book, Intern Nation (2011; 2012 updated p.b. edition), the first comprehensive examination of the social, economic, and legal implications of the burgeoning intern economy.

9781844678839 Intern Nation PB

Ross was the first writer to connect all the dots on the intern economy. I regard his book as the bible of a new movement. It’s quite possible that none of this would’ve happened had he not written it.

Among the early readers of Intern Nation was Eric Glatt, an MBA holder and former unpaid accounting department intern for the Fox Searchlight Pictures production of the movie “Black Swan.” Eric spied the references to my law review article, and after reading it he came away with ideas for a lawsuit seeking back wages from Fox. He sought a law firm to explore this possibility, and he found one of the very best in Outten & Golden, a leading plaintiffs’ employment firm in New York City. They decided to file suit, and Rachel Bien, a partner at the firm, would serve as lead counsel.

The lawsuit prompted some media coverage when it was filed, and then the story exploded when, last June, a New York federal district court judge ruled that Glatt and co-plaintiff Alex Footman were entitled to back pay under state and federal minimum wage laws and certified the case as a class action for other Fox interns.

Rachel and Eric are now planning for the case to be heard by the U.S. Court of Appeals.

In the meantime…

As the lawsuit against Fox was percolating, Glatt and others were busy organizing in New York.

Out of the Occupy Wall Street movement came a working group that evolved into Intern Labor Rights. ILR has become the “go-to” informational and organizational presence on challenging unpaid internships. More than any other group, ILR is responsible for branding this as a movement now properly “owned” by a younger generation of activists who are putting their own stamp on it via creative social media outreach, organizing, and advocacy.

From Intern Labor Rights

From Intern Labor Rights

Many more lawsuits challenging unpaid internships have been filed. Some have settled; others are pending. The intern rights movement has hit the court dockets.

There’s so much more I can say, but I’ll save space and simply reference these three excellent resources:

  • Go here for a comprehensive report by Intern Labor Rights documenting the extraordinary developments of 2013.
  • Go here for ProPublica’s wide-ranging investigative project on the intern economy.
  • Go here for an in-depth Boston Globe Sunday magazine cover story on unpaid internships by Melissa Schorr.

Beyond unpaid internships

The discussion about unpaid internships at the Yale conference quickly evolved into a broader examination of social, economic, and political ramifications concerning students, recent graduates, and work, especially as it pertains to law students and new lawyers who want to do public interest work.

There’s a particular dilemma here for those who want to extend legal services to the poor, while not wanting to deprive law students and lawyers from compensation for their work, especially during rough economic times for the legal profession. Because most of the unpaid intern litigation has focused on for-profit corporations, the applications of wage & hour laws to the non-profit sector are unsettled. In a nutshell, federal minimum wage laws do not exempt non-profit employers, but they also allow for taking on volunteers. Hence, there’s a massive gray area for legal pro bono work.

In addition, the dialogue explored the implications of the intern economy for work in general. What happens when young people get caught in a cycle of constant unpaid “opportunities,” with no paying work on the horizon? Indeed, the narrower focus on internships per se is giving way to a broader inquiry about employment, jobs, and the labor market in the midst of the meltdown economy, as it should.

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Nostalgic, already

Please forgive a brief nod to my Cancerian nostalgic side, but at the conference I couldn’t help but reflect upon a December 2011 meeting with Eric, Ross, and journalist Tiffany Ap at my favorite Manhattan diner. Ross’s book had been published earlier that year, and Eric had filed his lawsuit in September. As you can read from the tone of my write-up on our get together, we had very little idea of what was to come.

Since then, it has been my pleasure to serve in a background, resource role to this growing movement. As I suggested above, it is now the province of a younger generation. I’m happy to say that there’s more to come.

You may go here for my 2002 law review article (Connecticut Law Review) on internships and go here for my forthcoming 2014 law review article (Northeastern University Law Journal) discussing legal and policy developments of the past three years.

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