U.S. Appeals Court deals setback to interns seeking to be paid for their work

The U.S. Court of Appeals for the Second Circuit has reversed a lower federal court decision holding that two unpaid interns hired by Fox Searchlight Pictures were entitled to back pay under minimum wage laws and certifying a class action on behalf of other interns hired by the company. The Second Circuit’s decision in Glatt v. Fox Searchlight Pictures, Inc.released today, is the latest development in a much-watched case about the employment rights of unpaid interns.

In 2013, a federal District Court in New York held that lead plaintiffs Eric Glatt and Alex Footman were employees for purposes of federal and state labor standards laws and thus entitled to compensation for their internships. The court 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.

Primary beneficiary test

In reversing the District Court, the Second Circuit rejected the U.S. Department of Labor’s six part test for determining when private employers may be exempt from paying their interns the minimum wage. This test, among other things, considers whether or not the intern was providing an immediate benefit to the internship provider. Instead, the Court ruled that a “primary beneficiary” test should apply, examining “whether the intern or the employer is the primary beneficiary of the relationship.” The Court further offers its own set of factors to be applied toward this determination, heavily favoring intern providers and significantly discounting the work contributions of an intern.

In practical terms, the decision invites private employers and universities to collaborate on schemes that (1) create unpaid internships; and (2) charge students tuition for the “privilege” of doing unpaid work. Yes, that’s a strong characterization, but it’s pretty easy to read between the lines of this judicial opinion. However, the ruling also leaves vulnerable those employers who offer full-time unpaid summer internships not tied to a university educational program.

Class actions

The Second Circuit decision also makes it more difficult for interns to file class actions for unpaid wages. The practical downside here is that unpaid intern claims will be less appealing cases for lawyers, thus rendering this widespread practice more difficult to challenge in the courts.

Not the end of the case

This is not necessarily the end of the Glatt litigation. The Second Circuit did not dismiss the lawsuit; rather it “remanded” the case back down to the District Court for a potential decision in congruence with the new legal standards specified in this opinion. It is possible, for example, that Glatt and Footman could still be owed back wages under the more stringent, one-sided factors adopted by the Second Circuit.

The Second Circuit’s decision is a setback, albeit possibly only a temporary one, for an emerging movement challenging the widespread practice of unpaid internships. I’ll have more to say about the implications of this decision soon.

Roundup on civility and incivility at work

Last week’s post on distinguishing workplace incivility from more severe forms of mistreatment such as bullying and mobbing got a lot of page views and contributed to several discussions on social media as well. This response prompted me to pull together several previous pieces on civility and incivility at work. You can click on the titles for the full posts:

Civility and civility codes in higher education (2015) — “Universities that impose civility codes are usually those that cannot manage by thoughtful, inclusive, quality leadership. Instead, they must mandate manners and punish those who venture beyond superficial politeness.”

When superficial civility supports workplace abusers (and their enablers) (2014) — “All things being equal, most of us would much prefer a workplace where civility, rather than incivility, shapes the dominant culture. After all, who wants to work at a place where nastiness is the norm? But at times, the organizational embrace of a superficial brand of civility can advantage those who engage in bullying, harassment, or discrimination at work.”

Recipe for healthy employee relations: Encourage speech, nurture civility, prohibit abuse (2012) — “However, imposing company civility or speech codes is problematic. The give and take of ordinary human interactions needs to make room for occasional sharp exchanges and flaring of tempers. When conduct gets out of hand, someone should step in…, but an everyday dust up should not be punished. In fact, it may be the canary in the coal mine that signals a deeper problem worth addressing.”

Can workplace incivility ever be healthy? (2011) — “Have you ever been in an argument that became heated and angry, but concluded with a resolution of differences and perhaps even the strengthening of a friendship or relationship? If so, was expressing anger part of the path toward getting to a better place?”

Bullying, incivility, and conflict resolution at work (2010) — “At times bullying and incivility are conflated, and I plead guilty to that. . . . But there are distinctions worth drawing a line in the sand. For example, in an earlier post, I agreed with those who believe that genuine workplace bullying — targeted, hurtful behavior — cannot, or at least should not, be subject to traditional mediation approaches. One does not attempt to mediate abuse. However, I believe that lesser forms of workplace discord definitely may benefit from mediation and other dispute resolution techniques.”

The “summer job” vs. the “fancy internship” (revisited)

Some four years ago, I mused on the nature of traditional, entry-level summer jobs versus fancy internships for undergraduates:

Say you’re a young college student, weighing your options for the summer. Assuming you have some choice in the matter, what’s better preparation for a successful career, a summer internship with a prominent business or non-profit group, or a summer job filling shelves and running a cash register for a local supermarket?

Although I readily admitted that the internship is most likely the better option in terms of credentialing and experience, I waxed nostalgic about past summer jobs when I was a college student, in the days before internships became so common. For those who find themselves “stuck” in a low-paying summer job rather than a career enhancing internship, I’d like to expound upon some of the hidden advantages of the minimum wage gig compared to interning for that Master of the Universe on Wall Street or Senator so-and-so on The Hill:

1. It’s about work: You’re paid for your work, maybe not a lot, but it’s “x” amount of money for “x” number of hours of work, and that’s it. There’s no B.S. about “getting experience,” “networking,” and “building contacts” — lines especially favored by those touting unpaid internships.

2. More diversity: You’re likely to work with a more socio-economically diverse group of people, with varied backgrounds, ages, and life stories. You’ll see good people working hard, even if the job isn’t their life dream or doesn’t pay all that great.

3. Work ethic: You’re reminded that no one regards you as a future World Conqueror in Training. If you do quality work, you’ll probably be treated okay. If you don’t, you’ll likely hear about it. You’ll learn that a work ethic is generated largely from within. You’ll also come to savor a nice word for doing an extra thorough job on a task that required more determination than analytical know-how.

4. Keeping it real: While a positive disposition is always helpful in any job or internship, in an ordinary summer job you don’t have to fake it quite as much and project a false sense of gee-whiz enthusiasm for a mundane project. Your boss knows that putting 20 cartons of products on the store shelves isn’t an exciting assignment, and all she asks is that you do the job competently and with a relatively good attitude.

5. Appreciating contributions: Whether it’s unpacking boxes, cleaning tables, taking customer orders, running errands for the boss, sweeping the floors, or some other seemingly unglamorous duty, you’ll learn how these tasks contribute to a successful company. And if you ever become the CEO of a company like that, then maybe you’ll appreciate those contributions in setting or negotiating the pay and benefit scales for your employees.

Reality checks

Okay, as I conceded four years ago, I realize the game has changed a lot since my collegiate days. These days, a student who opts for a summer gig waiting on tables or lifting boxes, over an internship that looks good on a resume and potentially opens a door, might actually be called foolish. Furthermore, the pressures and realities for college students have intensified:

1. Not either/or: Because of the costs of college and the perceived need to build credentials, way too many undergraduates are doing both the summer job and the unpaid internship. This is especially the case for those who don’t have funding from family or other sources to cover their living expenses. For those who, in essence, are pulling ongoing double shifts, this also creates the risk that they won’t be as sharp in either position.

2. Shorter supply: Even the old-fashioned, minimum wage-type summer jobs are in shorter supply. Many of these positions have been taken by adults of all ages who cannot find better paying work elsewhere. The sharp decline of the U.S. manufacturing sector, in particular, has contributed to a huge shortage of jobs that pay living wages and decent benefits. Also, more than a few “summer jobs” have been relabeled unpaid “internships” in an effort to escape expectations of compensation. (Long-time readers know that I have been very involved in supporting legal challenges to the widespread practice of unpaid internships, but this practice remains very common.)

3. A lot less fancy: Building on my point above, the intern economy has become an exploitative extension of the training and credentialing period necessary to qualify for full-time employment in a given occupation. When I was in college, securing an internship as an undergraduate was seen as a plum achievement, worthy of envy — “Hey, I got this incredible internship where I’m going to meet all these heavy hitters and gain tons of experience!!!” Today, however, the intern world has devolved into an ongoing procession of unpaid and low-paid “opportunities,” with few assurances of a post-graduate paying gig at the end.

I guess the upshot of all this is that it’s hard to reverse course. The intern economy is now baked into the superstructure of training and credentialing for many professions, and that’s unlikely to transform anytime soon. The entry-level summer job market for students has shriveled, especially during these post-meltdown years.

Thirty-five summers ago, had someone told me that my summer job unloading trucks and doing other retail tasks for a local drugstore chain would actually teach me more valuable lessons than an elusive internship secured by someone at a tonier college, I would’ve scoffed at them dismissively. Today, however, I’m grateful for that experience, especially in light of how things have changed.

“Are you a psychopath? Have I got the career for you!”

They may be click bait, but articles listing professions said to attract the most psychopaths are very popular. At least I couldn’t help myself when I saw the latest from AlterNet, by Kali Holloway, summarizing a now oft-repeated list:

  • CEO
  • Lawyer
  • Media (television/radio)
  • Salesperson
  • Surgeon
  • Journalist
  • Police officer
  • Clergy
  • Chef
  • Civil servants

The origin of this list is psychologist Kevin Dutton’s The Wisdom of Psychopaths: What Saints, Spies, and Serial Killers Can Teach Us About Success (2012). According to Holloway, Dutton:

…believes that psychopathy can actually be advantageous in some careers. Using (not the most scientific) survey, he compiled a list of careers in which psychopaths are overrepresented. Mostly, they’re fields where the hallmarks of psychopathy allow people not just to get by but to thrive and succeed.

similar 2013 piece by Kelly Clay in Forbes.com adds more from Dutton:

Dutton has said that ”a number of psychopathic attributes [are] actually more common in business leaders than in so-called disturbed criminals — attributes such as superficial charm, egocentricity, persuasiveness, lack of empathy, independence, and focus.”

For what it’s worth, three occupations on the list surprised me: Journalist, clergy, and chef. (Off the top of my head, I would substitute certain categories of university administrators, but that’s for another post, possibly after retirement.)

In any event, it’s especially distressing that all of these occupations play important roles in our society, and some wield considerable power and influence, both individually and in the aggregate. Even if Dutton’s list is only sort of accurate, this adds up to a lot of damaging behaviors visited upon many unsuspecting targets.


The power of perseverance

A pair of major U.S. Supreme Court decisions this week has reminded us of the power of perseverance in striving to achieve positive social change. Yesterday, the Court upheld provisions of the Affordable Care Act (a/k/a Obamacare) that provide tax subsidies for those with low and middle incomes to purchase health insurance. And today the Court held that same-sex couples have a Constitutional right to marry.

Both comprehensive health care coverage and marriage equality are worthy of a humane, inclusive society, so I am very pleased by the Supreme Court’s rulings. Moreover, the Court decisions remind us that significant social change and legal reform are often the product of sustained, dedicated perseverance. Calls for health care reform trace their origins deep into the last century. Organized support for marriage equality goes back well over a decade.

Those who have found this blog because of their interest in preventing and stopping workplace bullying understand well the challenges of creating transformative change. On the legal front, I circulated the first version of the anti-bullying Healthy Workplace Bill some 12 years ago. As I wrote last month, we are now starting to see measurable progress:

Not too long ago, any reference to workplace bullying laws in the U.S. was purely aspirational. During the past three years, however, several states and municipalities have enacted workplace bullying laws that, while falling short of providing comprehensive protection to targets of these behaviors, signal America’s growing commitment to using the legal system to prevent and respond to abusive work environments.

Since 2003, some 30 American states and territories have considered some form of workplace bullying legislation, a variation of the Healthy Workplace Bill . . . .

As the full versions of the Healthy Workplace Bill continue to gain support in state legislatures, several jurisdictions have enacted some form of workplace bullying legislation.

Achieving positive change in the face of headwinds and hedgerows requires, above all, a determination to push forward without fanfare. Dilettantes and others who expect quick results soon learn, to their dismay, that the role of change agent is one more similar to that of a workhorse than a show horse. It’s about committing one’s self to the long haul.

Distinguishing workplace incivility and abrasiveness from bullying and mobbing


Sunday’s weekly review section of the New York Times spotlights Christine Porath’s piece on workplace incivility and rudeness. Dr. Porath (Georgetown U.) is a pioneering researcher on workplace incivility, and the fact that the Times has given this topic such prominent play is a good thing. She starts her piece with a personal story:

MEAN bosses could have killed my father. I vividly recall walking into a hospital room outside of Cleveland to see my strong, athletic dad lying with electrodes strapped to his bare chest. What put him there? I believe it was work-related stress. For years he endured two uncivil bosses.

Porath goes on to examine the individual health effects and organizational costs of workplace incivility, much of which is drawn from her own extensive work in this realm. It’s an excellent piece that covers a lot of ground.

Incivility vs. bullying

Readers from outside of academe may be amused to learn that research on bad workplace behaviors has broken down into several camps. Two of these are the incivility researchers and the bullying researchers. At organizational psychology conferences, it’s not unusual to hear remarks such as “oh, she’s an incivility person” or “no, he’s more into bullying.”

When I started this work over 15 years ago, I treated these behaviors as parts of a spectrum, with many overlaps present, but it’s clear that sharper lines are being drawn, at least for the purposes of putting together panel discussions and writing dissertations.

For me, the most significant line is where behaviors become abusive, motivated in significant part by a desire to cause distress or harm. When that line is crossed, it’s not about incivility or bad manners; we’re now into the territory of bullying or mobbing.

Porath suggests that acts of workplace incivility are not necessarily intentional:

Incivility often grows out of ignorance, not malice. A surgeon told me that until he received some harsh feedback, he was clueless that so many people thought he was a jerk. He was simply treating residents the way he had been trained.

In some cases, I’d agree. Of course, it’s also possible that someone claiming to be unaware of how his behaviors are being perceived is simply lying. Think, for example, of instances of sexual harassment where the harasser untruthfully claims that he had “no idea” how unwelcome his behaviors were or that he was “only joking around.”

Furthermore, we can delve deeper into social attitudes that may fuel individual behaviors, such as those assuming that some people, by dint of their status, aren’t entitled to the same level of respect as others. For example, if a company’s leadership regards entry-level workers as being replaceable or expendable parts, then its employee relations practices will reflect these (lousy) values. Complaints about mistreatment lodged by one of these “uppity” workers will be handled accordingly.

Yup, even the line drawing gets complicated.

The role of the law

Porath does not mention the potential role of the law in regulating uncivil behavior. Some might consider it an oversight, but in the context of how she’s approaching this topic, it’s not. In fact, as the author of the anti-bullying Healthy Workplace Bill, I have long held that the law must intercede when workplace behaviors are abusive, rather than being merely rude or abrasive.

The role of the law should be to prevent and prohibit abuse, and to provide a means of compensation for people who have been subjected to it. Fostering civility, on the other hand, should be the product of good leadership, not rules or codes.

Of course, determining when conduct has become abusive can be a challenging task, especially in alleged bullying cases where bad behaviors are indirect and nuanced, but there’s often a point at which the light bulbs go on and the situation becomes clear.

Acknowledging abuse

Ask anyone who has experienced genuine workplace bullying, and they’ll tell you: There’s a world of difference between an abrasive boss or co-worker and an abusive one. The same distinction applies between lighter forms of group hazing and full-blown mobbing situations. These differences apply to relationships in general, so there’s no reason not to apply them to the workplace, yes?

Over the years, both incivility and bullying have attracted greater attention from employee relations stakeholders and the popular media. However, we’re still at a point where workplace incivility, rudeness, and abrasiveness are more readily acknowledged than bullying and mobbing. I have many ideas as to why this is the case, and they tend to circle around the nature of power. Those in charge are much more threatened by allegations of bullying than by claims of incivility.

This has led some to suggest that we should abandon the use of emotionally charged terms such as bullying, and instead fall back on softer, less threatening ones such as incivility and abrasiveness. I respectfully, but very strongly, disagree. When someone is being savagely abused at work, it’s not about bad manners or “jerky” behavior. We need to keep these distinctions in mind, even if it makes some people uncomfortable to face them.

Woe is me (but maybe not you): How powerful people experience injustice

Powerful people may well be sensitive to injustice and unfairness, but a recent study shows that they are much more likely to feel this way if they are the alleged victims.

Tom Jacobs, writing for Pacific Standard magazine, reports on research suggesting that “people who perceive themselves as powerful are faster to detect injustice — but only in situations where they are the apparent victims.” Psychologist Takuya Sawaoka (Stanford) led the study (published in the Personality and Social Psychology Bulletin), which included an online survey and several controlled experiments.

Dr. Sawaoka told Pacific Standard that because “powerful people more strongly expect to receive fair outcomes, they are faster to perceive unfair situations that violate those expectations.” Accordingly, they may “react more quickly against unfair treatment, and maintain their hold on power.”

The Stanford study fits comfortably with other observations and findings on the effects of power and hierarchy. Executives and senior managers are more likely to demonstrate higher levels of narcissism and lower levels of empathy. In other words, they’re very attuned to themselves, but they care much less about the experiences of others.

Granted, these studies reveal statistical likelihoods that do not apply to every CEO or boss. There are plenty of good ones out there. That said, growing evidence suggests that people with certain personality traits are more likely to successfully climb up the greasy pole and that less-than-wonderful outlooks on the world may harden once they make it up there.

All of which helps to explain the current state of many workplaces, the growing gap between the wealthy and everyone else, and a political and economic system rigged to preserve these inequities.


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