A “New World” for U.S. Employment and Labor Rights?

Are we witnessing the beginning of a new direction in federal employment and labor law, one where the pendulum is swinging back towards some reasonable balance between workers’ and employers’ legal interests?  Recent developments appear to suggest this is a real possibility:

The Lilly Ledbetter Fair Pay Act — President Obama’s first major bill signing was this important legislation extending the time period that workers have to sue in pay discrimination claims.   Read about this legislation in HR Lawyer’s Blog by attorney Christopher McKinney: http://www.hrlawyersblog.com/2009/01/articles/sexual-discrimination/president-obama-signs-lilly-ledbetter-equal-pay-law/.

The Supreme Court’s Decision in Crawford v. Metropolitan Government of Nashville further protects employees from retaliation for cooperating with internal investigations and proceedings about alleged employment discrimination.  Read about this unanimous ruling in HR Lawyer’s Blog: http://www.hrlawyersblog.com/2009/02/articles/case-opinions/supreme-court-issues-unanimous-decision-in-employment-retaliation-case/.

Today’s Workplace, the blog of Workplace Fairness, offers extended commentary on the Ledbetter legislation and Crawford decision: http://www.todaysworkplace.org/2009/02/06/rising-hope-for-women/.

Wilma Leibman designated Chair of National Labor Relations Board — Liebman, the senior member of the National Labor Relations Board, the federal administrative agency that presides over collective bargaining policy and disputes, has been a lone dissenting voice in the wilderness during the profoundly anti-labor years of the Bush Administration.  Read about this development at Workplace Prof: http://lawprofessors.typepad.com/laborprof_blog/2009/01/liebman-designa.html.

Creating Good Jobs: Start a Business

Dramatically changing a bad or even mediocre workplace where the institutional culture is deeply rooted can be very difficult or — from any realistic standpoint — nearly impossible.  Don’t get me wrong: It can be done, but oftentimes entrenched, insular core groups make it very difficult to do so.

And with our economy in trouble, companies shutting down, and jobs disappearing, we need new businesses to enter the fray — ones that offer quality goods and services and that respect the dignity and well-being of their workers.

Starting a new business is much, much easier said than done.  However, for those who are thinking about it, there are plenty of helpful sources to guide you.  Here are three good ones:

Uncle Sam: Beyond Bailout Cash

The federal Small Business Administration offers a wealth of information and assistance to individuals planning to start small businesses, including free online courses, business planning and start-up advice, and small business loans and grants.  If you’ve ever even toyed with the idea of starting your own business, the SBA website is worth your visit: http://www.sba.gov/.

Schooling for Entrepreneurship

Even if you don’t have prior training in running a business, you don’t need an MBA to become an entrepreneur.  A growing number of universities and adult education centers offer non-degree certificate programs and courses in how to start a business.

For example, Boston University School of Management offers a well-regarded online graduate certificate program in entrepreneurship.  It’s a practical-minded, four-course sequence for individuals who have a business idea and want skills to help make it a reality:  www.bu.edu/online/online_programs/certificate_programs/entrepreneurship.html.

Building a Great Place to Work

We don’t need more bad workplaces, so let’s concentrate on creating new great (or even good!) ones.  Helpful towards this objective is the Great Place to Work Institute (http://www.greatplacetowork.com/), created by one-time business and labor reporter Robert Levering, author of A Great Place to Work (2000 ed.).  Levering’s book and GPWI’s publications can help budding entrepreneurs understand the vital role of healthy, productive work environments towards building successful and sustainable new businesses.

No Layoffs as Social Responsibility Indicator?

When we hear the term “corporate social responsibility,” we often equate it with environmentally friendly business practices and various forms of community service.  However, with announcements of layoffs becoming standard fare in our daily news diet, it’s time to add job preservation as an important factor in determining whether an employer is socially responsible.  In a December post I wrote:


Layoffs can have serious economic and psychological consequences for affected individuals.  When reporter Louis Uchitelle began researching his book The Disposable American: Layoffs and Their Consequences (2006), he did not anticipate that he “would be drawn so persistently into the psychiatric aspect of layoffs.”  But he soon understood that the “emotional damage was too palpable to ignore.”  For the suddenly unemployed, “a layoff is an emotional blow from which very few fully recover.”


Furthermore, Uchitelle found that “layoffs damage companies by undermining the productivity of those who survive but feel vulnerable, as well as the productivity of those who are laid off and get jobs again.  All lose some of the commitment, trust, and collegial behavior that stable employment or the expectation of stable employment normally engenders.”


The practices of companies that avoid or minimize layoffs in the midst of this difficult economy deserve study and, perhaps in some cases, emulation.  This piece from Fortune magazine highlights nine companies “that, as of mid-January, have never had a layoff”:



In many cases, layoffs are not inevitable; they are the result of conscious management decision making.  Keeping people employed in the midst of this economic downturn should be a key priority for all employers who regard themselves as socially responsible.


Website(s) of the Week: Workforce Management magazine

Readers, don’t let the brevity of this post fool you.  If you want to read about the latest trends in human resources management and best personnel practices, Workforce Management magazine hosts one of the best and most content-rich websites around (http://www.workforce.com/index.html).

This site is highly recommended for anyone who wants to learn about modern human resources management practices.  By registering on the site, you can access articles, blogs, and newsletters galore.

Workplace bullying and the law: Oh, Canada!

As a growing number of American state legislatures consider some form of workplace bullying legislation, it’s worth reminding ourselves that many other nations and jurisdictions within them already have stepped forward on enacting legal protections against this terrible form of mistreatment at work.

A prime example comes from our neighbors to the North, where in 2002 the province of Quebec enacted the Psychological Harassment at Work Act, which provides that:

Every employee has a right to a work environment free from psychological harassment.

Employers must take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.

Canadian legal scholars have been studying the effectiveness of the Quebec legislation, and while their findings are not final, it’s safe to say that the new law has not proven to be a panacea for targets of workplace bullying.  Nevertheless, the situation in Quebec is well ahead of where we are in the United States.  Indeed, one of the most important accomplishments of the Quebec legislation is that it legitimates workers’ concerns about workplace bullying and imposes obligations on employers to act preventively towards this behavior.

The Quebec labor commission is responsible for enforcing the Act, and its website is worth perusing to get a sense of how these concerns are translated into labor policy: http://www.cnt.gouv.qc.ca/en/in-case-of/psychological-harassment-at-work/index.html.

Core Groups: The Sources of Boston’s Tinted Glass Ceiling?

Over the years, we’ve heard the term “glass ceiling” used to refer to discriminatory practices that help to prevent women from advancing into higher level leadership positions in our society.  One of Hillary Clinton’s best lines from the recent Presidential campaign is how her primary race made “18 million cracks” in that glass ceiling.

Tinted Glass Ceiling

I’m going to borrow the glass ceiling metaphor, change and expand it a bit, and apply it to my adopted home city of Boston.  Here’s the hypothesis: In Boston, more than in many other major cities, there exists a “tinted glass ceiling” that continues to exclude those who in some way challenge the authority of those who have long held the reigns of power and influence in this city.  It is grounded in the city’s historically insular culture, and it is especially prevalent in workplaces of all kinds.

The excluded include a disproportionate share of people of color and women, but also newcomers to the city representing virtually all demographic groups.  Boston (unlike, say, its hated rival New York) has never been considered a welcoming place for newcomers, and institutions that have been historically local in nature can be especially, and brutally, exclusionary towards them.  The “minorities” (generically speaking) who are permitted entry into select circles of power are usually those who pose no threat to the status quo and its beneficiaries.

I use the term “tinted” because there is nothing transparent about these practices of exclusion.  In a city where people often hold on to power for its own sake, a lot of decision making is made behind closed doors, literally and figuratively.  The “wink and a nod” still are practiced in Boston, and the rest of us are left to figure out what happened and to sort out the results.

I realize that many cities and towns, and many institutions and workplaces, embrace such exclusionary practices.  Boston is surely not alone in this regard.  But Boston is unique in the degree to which these practices continue to prevail.  Boston has become a more diverse and cosmopolitan city, but its power bases remain remarkably insular and, frankly, insecure.  This reality cuts across private, public, and non-profit sector institutions.

Core Groups

How do we change this culture?  Speaking truth to power is easier said than done, but it must be done.  For starters, however, we need to sort out the reality of things.  To help us, writer and organizational change consultant Art Kleiner has advanced the idea of “core group theory” in his book, Who Really Matters (2003).  In essence, Kleiner posits that every organization — large and small — has a core group that defines both mission and practice.  While people in top management positions are likely to be part of the core, this is not necessarily so.  A true core group often transcends, to some degree, strict lines of organizational structure and hierarchy.

If you want to understand how an organization includes or excludes, identifying the core group is a vital first step.  Examine the core group members in terms of demographics.  Look at the inclusionary or exclusionary practices of those within the core group.  You’ll get a lot of answers about the culture of a particular workplace or institution, along with some insights about what is required to achieve positive change.

Follow up: Psychologically healthy dialogue

Those of you who read my earlier post, “What’s a psychologically healthy workplace?”  may want to read the thoughtful comments that were submitted by Drs. Kathy Rospenda, Curtis Reisinger, and — on behalf of the APA’s Psychologically Healthy Workplace Awards Program that I critiqued in my post — David Ballard and Matthew Grawitch: https://newworkplace.wordpress.com/2009/01/26/whats-a-psychologically-healthy-workplace/.

Let me thank these four individuals  for responding to me as a colleague, even though I am very much a layperson in their areas of considerable expertise.  I hope they understand that my commentary is grounded in part on a firm belief that employment law scholars and practitioners must pay much greater attention to psychological health at work.  When specialists give non-specialists space to enter a dialogue, we all benefit, and we all learn.

Social and health costs of unemployment

Take a look at this chart based on the work of researcher M. Harvey Brenner, documenting what happens when unemployment rates spike:


(Circulated via the Institute for Workplace Studies Documented News Service and Prof. Emeritus Harold Oaklander of Pace University)

Website(s) of the Week: Labor and Employment Relations Association

The Labor and Employment Relations Association (http://www.lera.uiuc.edu/)  is a multidisciplinary, non-partisan, non-profit membership organization for scholars and practitioners involved in employment relations.  Especially for those interested in workplace governance, labor economics, employment & labor law and policy, and dispute resolution, LERA merits your serious consideration.

Some of the highlights of LERA membership include a subscription to Perspectives on Work (a very good, informative periodical containing shorter articles on workplace topics), an annual volume of research on a selected topic or theme, eligibility to participate in committees and interest groups, and reduced registration fee to LERA’s annual meeting in January.

All too often, we permit our own professional or academic discipline to “silo” our perspective on employment relations, or we divide ourselves between practitioners and scholars.  LERA helps to cut through some of those tendencies by bringing together, literally and figuratively, a diverse array of individuals from different disciplines.   The multiple perspectives can be invaluable.

Human Dignity and American Employment Law

I’m delighted to inform readers that my latest law review article, “Human Dignity and American Employment Law,” has been published in Volume 43 of the University of Richmond Law Review.  Here is a brief synopsis of what I’m saying in the essay:

For decades, American employment law has been framed by the ideas of the unfettered free market and unilateral management control.  This “markets and management” framework has helped to deliver growing levels of income inequality, job insecurity, and stress at work.  As a counterpoint, this essay argues that human dignity should be our framing perspective for examining and shaping American employment law, building its case around sources ranging from the Enlightenment philosopher John Locke and America’s Founding Fathers, to the Universal Declaration of Human Rights and newer fields such as therapeutic jurisprudence, occupational health psychology, and the works of relational psychology theorists Carol Gilligan and Jean Baker Miller.  The essay then examines several important employment law issues against the backdrop of this new “dignitarian” framework, including unions and collective bargaining, job security, and workplace bullying.  It closes with ideas about advancing this agenda in the public arena.

Although I call it an “essay,” it’s actually over 40 pages long, with a strong theoretical focus, so I understand if folks aren’t rushing to download it for bedtime reading!  But I did write it with general readers as well as legal scholars in mind, striving to make the commentary accessible to non-lawyers.  (And if download counts of pre-publication versions posted to the Social Science Research Network are any indication, the article is being well-received.)

The final version of “Human Dignity and American Employment Law” may be downloaded without charge: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299176.

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