After being bullied at work, what next?

One of the realities of workplace bullying is that employers are often reluctant to intervene on behalf of the target. Some will even side with the aggressor. We also know that targets frequently leave their jobs to avoid further torment. All of this boils down to the fact that targets must often consider their options on their own. For those who are in such a position, here are several questions to ask:

1. Is an in-house transfer a possibility? Especially for those in larger organizations, a transfer to a different department or working group may be a viable option. Such a move may carry its downsides, including the possibility of disrupting a desired career track, so I’m not pretending that it is cost-free. Furthermore, if the bully is your boss, obtaining that transfer may require some creative maneuvering.

2. What are your other options for employment?  Remember, it’s easier to get a new job while you still have your old one. Are there people besides the bully who can serve as a useful reference? Is this particular episode a sign that you should change vocations or professions? If so, what can you do to make a transition? A good career counselor for adults can help sort through the possibilities.

3.  What are your employee benefit options? They may include using up vacation and personal days, accessing Family and Medical Leave Act benefits, filing a workers’ compensation claim, applying for unemployment benefits, and — in severe cases — applying for disability benefits.

This area is tricky business. For example, “voluntary” resignations usually preclude one from claiming unemployment benefits, and it is questionable whether leaving due to bullying qualifies as an exception. Talking to a lawyer who works with employee benefits may be useful before making any decision to leave a job.

4.  Do you have any viable legal claims? As I’ve written many times on this blog, current legal protections are less than ideal, but targets are not necessarily without options. Bullying situations that implicate discrimination laws and whistleblower provisions offer the most promising avenues for legal relief, but other possibilities may apply as well. A good employment lawyer can help you assess your situation.

5.  How is your state of mind and your health in general?  Counseling and medical care may be useful, even necessary, in severe situations. Be honest with yourself and do not feel self-conscious about seeking help.

6.  How are your personal finances? Do you have a cushion of savings to sustain you during a potential period of unemployment? What expenses can you cut if necessary? In some cases, a discussion with a financial advisor may be useful.

7. Have you done your requisite homework? Don’t limit your understanding of workplace bullying to a few newspaper or online advice columns. The expertise is out there for you to tap. For starters, go to the Need Help? section of this blog to learn more about suggested resources.

I’ve raised a lot of questions and provided no answers, in large part because the answers will be unique to the individual. Hopefully I have set out some important food for thought for those who are facing difficult decisions due to bullying or similar forms of mistreatment at work.

As you can see, these questions require an individual to be pro-active about addressing the situation. This is not easy when in the midst of a threatening work environment. While there are no guarantees, considering smart actions now can potentially make a positive difference.

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This post was revised in June 2016.

What will be your body of work?

Until recently, I’ve regarded the term “body of work” as being somewhat odd.  It refers to an individual’s total output, or at least a substantial part of it.  We often hear “body of work” invoked when assessing an individual’s creative, artistic, or athletic endeavors, as in looking at the career of a great musician, writer, or baseball player.

But I’ve come to realize that we all produce our own body of work, even if we are not famous artists or athletes.  It may include work we are paid for, but it also may capture our contributions as parents, friends, caregivers, volunteers, and members of the community.  For some, their “day job” of showing up to work or caring for their children may be complemented by starting a band, coaching a softball team, or singing in a community chorus.  Taking into account all of these possibilities, our body of work represents our contributions to this world while we are a part of it.

I confess that turning 50 has been a prod for looking at life in this way.  But that’s not a bad thing.  In fact, if these notions were planted in us at a much earlier age — as opposed to more conventional ideas about success and achievement — our lives would be more meaningful and, quite possibly, the world would be a better place.

Employment Law as if People Mattered

I’ve posted a pre-publication draft of my forthcoming law review article, “Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace,” which will appear in a symposium issue on therapeutic jurisprudence in the Florida Coastal Law Review.  Here’s the abstract:

During the past 20 years, scholars and practitioners drawn to therapeutic jurisprudence (TJ) have produced a substantial body of work, with mental health law, criminal law, family law, and legal education being focal points for examination under a TJ lens.  Employment law, however, has been conspicuously underrepresented in TJ-inspired scholarly and law practice literature.  This essay is built on the premise that employment law scholars and lawyers, as well as the public at large, would benefit by applying a TJ perspective to the law of the workplace, and it suggests some framing concepts drawn from psychology and related disciplines to guide future research, analysis, and practice.  It also applies these ideas to the challenges of representing employees and employers, using workplace bullying as a specific scenario for discussion.

This isn’t for everyone!  It’s a law review article, short as these things go, but still a solid 23 single-spaced pages.  That said, if you’re interested in how employment law theory and practice might incorporate ideas from psychology, here are some core ideas that should be part of that conversation.

Here’s the link to the pdf: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1462406

Workers, their lawyers, and workplace bullying

A few weeks ago, I posted about options for employers and their lawyers for addressing workplace bullying, drawn from a law review article I’m writing about therapeutic jurisprudence and employment law.  This week, I’d like to borrow from that article again to consider client counseling options for lawyers who are counseling bullying targets, especially in view of the lack of specific legal protections against bullying.  It starts with this (very representative) hypothetical:

Janet Choy, your potential client, believes she is facing termination from her job as an administrative assistant at a local business.  Choy claims that her boss treats her abusively and unfairly, regularly yelling at her, criticizing her smallest mistakes, blaming her for his own mistakes, and belittling her in front of co-workers.

The human resources director has warned Choy that she is in danger of being let go because she may not be a “good fit” for her boss, who needs an assistant who could work better under pressure.  Choy claims to be experiencing severe stress and anxiety and believes she is suffering from depression, even though she has no documentation from any health professional.  Especially as a single mother, she fears the loss of health insurance benefits for herself and her child.

Although Choy believes she is being “harassed” and “discriminated against,” your questioning yields no evidence of grounds for a discrimination lawsuit.  You do believe, however, that if she is fired, she may have grounds for claim against her supervisor for intentional interference with contractual relations, although this would be a difficult and costly case to pursue.

Such scenarios can be time-consuming staples of a plaintiffs’ employment lawyer’s practice: A prospective client is in trouble at work, she believes she is being treated unfairly and illegally, and she seeks legal assistance to make things right.  The lawyer may have to sit through a fairly lengthy, convoluted, and emotional explanation of a situation, often concluding that any legal claim at this juncture is a long shot and may not even exist if the person is fired.  Many lawyers would explain this to Choy and then find a way to close the interview, suggesting that she call if “anything happens.”

In fact, many plaintiffs’ employment lawyers conduct scores of initial interviews with prospective clients, either in person or over the phone, for every one situation that leads to a formal retainer agreement being signed.  Because many of these lawyers define themselves as litigators, they naturally will be on the lookout for cases that could result in a successful lawsuit.  Complaints about unfair treatment, discipline, or even termination usually are not the stuff of a potential lawsuit unless they raise issues of discrimination or an exception to the rule of at-will employment.  Without the decent prospect of a settlement or an award of damages, it may not be considered economically viable for a plaintiffs’ lawyer to represent and advise an individual worker on a longer term basis.

However, it also is possible that Janet Choy could benefit greatly from a lawyer’s advice and counsel beyond the prospects of litigation.  Choy appears to be a target of workplace bullying.  If Choy’s lawyer is not well versed in the effects of workplace bullying, she may not understand the severe harm it can inflict on an individual target and the damage it can do to her livelihood.  This is where some of the non-legal research on the destructive effects of bullying on targets can be enlightening.  Armed with this knowledge, and practicing in a therapeutic jurisprudence mode, Choy’s lawyer can help her navigate her options in light of her legal rights, overall health, financial viability, and future employability.

In some bullying situations, litigation, or the threat of litigation, may yield a successful result.  (For an overview of possibilities, see a short paper I authored, “Potential Legal Protections and Liabilities for Workplace Bullying,” linked below.)  In Choy’s case, a lawsuit against her supervisor for intentional interference with contractual relations may take years to litigate, with no assurances of victory.  Especially in view of her mental health, Choy may be better off switching than fighting, but she is not completely free to walk into work the next day and resign.  Choy could be facing choices or circumstances that implicate eligibility for unemployment insurance, family and medical leave, health insurance coverage (including mental health services), workers’ compensation, and disability benefits.

It may require patient questioning and wise counsel to help her sort through these possibilities, as these options relate directly to her employment status.  Navigating the thicket of public and private employee benefit programs is a challenge for anyone, but for someone in a stressed emotionally vulnerable state, it can be overwhelming.  In addition, it is possible that Choy could benefit from mental health counseling.  Her lawyer may suggest this possibility, adding that it may help to document any psychological harm caused by the bullying.

For a pre-publication draft of “Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace” (forthcoming, Florida Coastal Law Review)

For “Potential Legal Protections and Liabilities for Workplace Bullying”

For an earlier post on management-side lawyers and workplace bullying

Pro Football, Hard Knocks, and Pressure at Work

Perhaps someone who calls for a kinder, gentler workplace should not be confessing this, but I’m a big pro football fan.  For decades, my favorite team has been the Chicago Bears.  I still revel in the legendary 1985 Bears team that won the Super Bowl.  And every fall, I follow the fortunes (or lack thereof) of my fantasy football team, playing in a league started up by one of my college pals.

From an employment relations standpoint, though, it’s worth recognizing that the professional life of a National Football League player can be a brutal experience.  Lest anyone believe that these guys have it easy, assuming that grown men get to play a boy’s game without a care and make megabucks doing it, think again.  Sure, a successful NFL player can make millions over the course of a career.  Most, however, play fewer than three seasons.  And the pressure to produce is constant, with journeymen and reserves always looking over their shoulders to see who wants to take their jobs.

During the preseason, HBO runs a series titled “Hard Knocks,” which follows the training camp fortunes of one NFL team.  This year’s team is the Cincinnati Bengals, and in the first episode we see how merciless the game can be to its marginal players fighting for a roster spot.  In one scene, a Bengals staffer knocks on a player’s dorm room door at 5:30 a.m. to tell him he’s been cut from the team and should leave on the team bus later that morning.  To the viewer’s knowledge, the player had not been guilty of any misconduct or bad attitude; he simply was deemed not good enough to make the team and thus had to go.

Career threatening injuries loom large.  During the early of weeks of training camp, the Bengals lose their top two tight ends to injuries.  The starter tears an Achilles tendon and is out for the season — poof!  His replacement takes a bad hit during practice and briefly is rendered unconscious.  He is carted off in an ambulance.  (To be fair, it should be pointed out that cheerleading, not football, is the riskiest sport for catastrophic injury, but the image of a player being strapped to a gurney as he’s being taken to the hospital for tests is pretty grim regardless of the sport.)

The 5:30 a.m. firing may be an anomoly in the NFL, but cold personnel decisions and serious injuries are not.  In training camp, with roughly 80 guys going full tilt as they compete for 53 roster spots, player cuts and injuries are a fact of life.  One moment, you’re looking at NFL glory and a big paycheck, the next, you’re wondering if it’s time to consider life after football.

Workplace fatalities down, but workplace suicides up, in 2008

Sam Hananel, writing for the Associated Press, reports on U.S. Department of Labor statistics indicating that overall workplace fatalities declined in 2008, but that workplace suicides reached an all-time high:

Workplace suicides surged 28 percent last year, the Labor Department said Thursday, as anxious workers dealt with a struggling economy and watched colleagues depart in a rash of layoffs.

…The 5,071 workplace fatalities recorded in 2008 was the lowest number since the agency began tracking the data in 1992. That number includes 251 suicides, the highest number since official reporting began.

Labor officials did not seek to explain the sudden rise in workplace suicides. A BLS spokesman said the agency plans to research it more extensively.

I’m glad that the Bureau of Labor Statistics plans to research this development.  I hope the National Institute for Occupational Safety and Health and state-level workplace safety agencies will get on board as well.  However, given that we spent the second half of 2008 watching our economy unravel and retirement savings implode, we probably don’t need extensive studies by industrial psychologists to figure out what happened.  Nonetheless, it would be useful to document the cause and effect, lest anyone doubt what last year’s economic disaster did to individual psyches.

Here’s a link to the full story: http://www.google.com/hostednews/ap/article/ALeqM5jO4nskS64b9hGeyv1tJ4t60GUzNwD9A6MO303

Basic Human Needs, Work, and the Limits of Employment Law

[Note: This post is adapted from a law review article I’m writing about therapeutic jurisprudence and employment law.]

In a classic article published in 1943, psychologist Abraham Maslow grouped human needs into the following categories, organizing them as a hierarchy:  At base are “physiological needs” such as food, clothing, and shelter, that are essential or central to our survival.   Next are “safety needs” such as personal health, security, and financial security.   The “love needs” for close human relationships comprise a third layer,  and “esteem needs” for belonging in society, make for a fourth.   Finally, “self-actualization,” the full realization of one’s potential, stands atop the hierarchy.

Although many have taken issue with Maslow’s conceptualization of human needs as a hierarchy, considered as a whole it is hard to quarrel with the assertion that these conditions are vital towards a safe, secure, and meaningful life.  Work is an essential activity towards meeting these needs.  The results of our labor provide necessary and desired goods and services.  Compensation for our work allows us to pay for life’s necessities and niceties.  For individuals fortunate to be in positions that bring emotional satisfaction, work itself can be a rewarding activity, helping to fulfill higher-level needs.

By helping to facilitate and order work relationships, employment law can contribute to meeting basic needs.  In this context, its most useful role is in setting statutory floors for compensation and working conditions.  Labor standards covering living wage, minimum wage, overtime, and child labor help to provide compensation to pay for essential provisions and can safeguard workers from severe exploitation.  Occupational safety and health standards help to provide a safe and secure workplace, and law against discrimination and bullying can protect people from dignitary harm.  Labor laws can facilitate union formation and collective bargaining, which in turn can lead to agreements that result in better wages, health care and retirement benefits, and safer workplaces.

The limits of employment law become more evident once we try to extend its reach beyond addressing basic physiological and safety needs.  For example, it would be folly to devise a statute or regulation that attempts to mandate the design of jobs that nurture an individual’s personal growth or self-actualization.  This is best left to creativity, enterprise, negotiation, and individual skill.  Enlightened employers may be able to develop job descriptions that provide for interesting, varied, and challenging work.  In some instances, labor unions may be able to negotiate over job duties that provide personal satisfaction in addition to a good wage.

For a pre-publication draft of “Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace” (forthcoming, Florida Coastal Law Review): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1462406

Maslow’s article has been reprinted and posted online.  Here is the citation to the original version:  Abraham H. Maslow, “A Theory of Human Motivation,” Psychological Review, vol. 50, p. 370 (1943).

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