Published: “The Legal and Social Movement Against Unpaid Internships”

The Northeastern University Law Journal has published my law review article, “The Legal and Social Movement Against Unpaid Internships.” It offers a comprehensive overview and assessment of major legal, policy, and advocacy developments concerning unpaid internships during the past six years, including the signature Glatt v. Fox Searchlight Pictures, Inc., lawsuit for back wages in unpaid internships, which culminated in a recent decision by the U.S. Courts of Appeals for the Second Circuit.

I posted the original version of this article some three years ago. However, by mutual agreement with the journal’s editors, we postponed a final version and publication to cover developments in the Glatt litigation. Here is the updated abstract:

Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.

This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.

In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.

This article grew out of my presentation at the March 2013 Northeastern University Law Journal symposium on employee misclassification. By mutual agreement with the journal editors, we postponed publication of the article to allow for further resolution of the Glatt litigation.

I believe this constitutes the most comprehensive, informed examination of recent developments on this topic in the current law review literature. You may freely download a pdf copy from my Social Science Research Network page.

Psychological safety and the successful workplace

Aamna Mohdin writes for Quartz earlier this year on Google’s research efforts to identify the keys to creating successful work teams. The answer turned out to be pretty simple:

Google’s data-driven approach ended up highlighting what leaders in the business world have known for a while; the best teams respect one another’s emotions and are mindful that all members should contribute to the conversation equally. It has less to do with who is in a team, and more with how a team’s members interact with one another.

Consequently, says Mohdin, “Google now describes psychological safety as the most important factor to building a successful team.”

Or, to put it another way, it’s about valuing human dignity on the job. It’s about embracing the Golden Rule at work. It’s about trying to be inclusive and fair.

The flipside, of course, is when incivility, exclusion, harassment, and bullying enter the picture. Psychologically safe organizations have a culture that discourages these behaviors, but what happens when they occur? The true authenticity of that culture is revealed by how these situations are handled, individually and organizationally.

***

Hat tip to Cosette Chichirau for Quartz piece on Google.

“Rage-aholic” behavior and intermittent explosive disorder

Mayo Clinic webpage

Informally, we might call them “rage-aholics.” You know, those persons who dial up their anger from 0 to 90 miles per hour in a split second, seemingly at the slightest provocation. They account for many instances of negative and abusive workplace behaviors: Bullying, incivility, and physical violence. We also see plenty of them in domestic violence situations.

Some of these individuals may have a clinically diagnosable condition called intermittent explosive disorder. The Mayo Clinic describes IED this way:

Intermittent explosive disorder involves repeated, sudden episodes of impulsive, aggressive, violent behavior or angry verbal outbursts in which you react grossly out of proportion to the situation. Road rage, domestic abuse, throwing or breaking objects, or other temper tantrums may be signs of intermittent explosive disorder.

These intermittent, explosive outbursts cause you significant distress, negatively impact your relationships, work and school, and they can have legal and financial consequences.

Intermittent explosive disorder is a chronic disorder that can continue for years, although the severity of outbursts may decrease with age. Treatment involves medications and psychotherapy to help you control your aggressive impulses.

IED appears in the Diagnostic and Statistical Manual of Mental Disorders (DSM), and the current 5th edition of the DSM now recognizes verbal aggression as a qualifying behavior. The National Institute for Mental Health has estimated that some 16 million Americans may be affected by IED during some point in their lives.

I’ll offer my hypothesis that online communications, especially e-mail and social media, are fueling behaviors that might be dubbed rage-aholic and could reflect the presence of IED. We’re certainly seeing a lot of that rapidly dialed-up anger online these days, and it’s adding to our stress and anxiety levels. Alas, the comments following many an article or Facebook posting about the current political season might suggest an epidemic.

Report: Abuse victims and whistleblowers at New England private schools faced retaliation

 

You’ve got to be carefully taught

To see how kids may learn their first lessons about unethical organizational behavior, look no further than how some schools respond to instances of bullying and abuse. To illustrate, consider the Boston Globe‘s investigation into how certain private schools in New England have handled reports and allegations of sexual abuse and inappropriate behavior:

The Globe Spotlight Team, in its ongoing investigation of abuses at New England private schools, found at least 15 instances of apparent retaliation against students who were sexually exploited by staffers or against employees who raised concerns about alleged sexual abuse and harassment. Some cases date back decades, while others are quite recent. But all of them are still raw for the people who felt the backlash.

The article begins with a story from the early 1980s about a female student who was asked to leave the tony Buxton School in Williamstown, Massachusetts, after school administrators learned of her relationship with a teacher there. The school did the right thing, in part, by dismissing the teacher. But it also asked the student to basically disappear, reasoning that her presence would be uncomfortable to others, including “the teacher’s girlfriend, who worked there”! The school included the student’s photo in the annual yearbook only because her classmates insisted on it.

As it turns out, this was among the gentler instances of exclusion or payback described by victims and others interviewed for the Globe story about student abuse in private schools:

The retribution, they say, came in various forms, including abusers lashing out at their accusers or enlisting other students to ostracize them, and administrators punishing or expelling students who complained of being victimized.

Readers interested in the Globe‘s investigation may check the articles on the newspaper’s website, but my point here is that when schools respond to allegations of abuse by retaliating against or marginalizing victims, witnesses, and whistleblowers, they also send messages to their students (victims and bystanders alike) that both the abusive behaviors and the inadequate organizational responses are cultural and societal norms, to be tolerated and swept under the rug if necessary.

Of course, private schools that depend on hefty tuition dollars and alumni/ae donations don’t want news about abusive behaviors becoming public, so the morally challenged ones will resort to intimidating and retaliating against victims, witnesses, and others to keep the lid on. One can only wonder if some of their graduates, having learned these “lessons” taught to them by such institutions, will act in the same manner when they assume leadership roles later on in life.

Disney fires, then rehires, intern who shared alligator directive

Weeks after a toddler was dragged into the water and killed at Disney’s Magic Kingdom, a Disney manager posted this sign for its employees and interns:

As reported by Travis M. Andrews for the Washington Post, Disney college intern Shannon Sullivan faced a crisis of conscience: “Sullivan thought the world should know, both about potential threats and about the company asking her and her colleagues to deny them.”

She shared her objections with others, though the story does not explain how she did so. Apparently stymied, she posted the picture above on Twitter, realizing that she was jeopardizing her place in a highly sought-after internship program.

Her supervisor soon learned of her tweet. Sullivan was fired from her internship and led off the premises.

When the Orlando Sentinel became aware of Sullivan’s termination, it contacted Disney management for comments. Andrews reports on what happened next:

The next morning, Magic Kingdom Vice President Dan Cockerell visited Sullivan himself to offer her internship back, which she accepted.

Disney removed the offending sign, claiming it was never authorized, the Associated Press reported.

So how about some lessons from this little story?

First, bravo to Shannon Sullivan for her courageous decision to speak out. True, we don’t know how she effectively expressed her concerns within the organization before going public with her tweet. Nevertheless, she was willing to sacrifice a plum internship for the sake of honoring her sense of right and wrong.

Second, a jeer and a partial nod to Disney for its handling of the situation. Clearly some manager at Magic Kingdom screwed up badly by posting a sign that valued superficial customer relations over guest safety. But at least a Disney exec, after the company was contacted by a newspaper, made the right decision and handled it personally.

Third, kudos to the Orlando Sentinel for showing us once again the power of the press. It’s not the biggest story to hit the media, but it’s important enough to get some coverage.

Trump’s ghostwriter suspects The Donald is a sociopath

Tony Schwartz, Donald Trump’s ghostwriter for his bestselling book, The Art of the Deal (1987), now regrets that collaboration and suspects that Trump is a sociopath.

Interviewed for a New Yorker piece by Jane Mayer, Schwartz says that he would approach this writing project differently today:

If he were writing “The Art of the Deal” today, Schwartz said, it would be a very different book with a very different title. Asked what he would call it, he answered, “The Sociopath.”

Schwartz’s regret for helping to build the Trump mythology is palpable:

“I feel a deep sense of remorse that I contributed to presenting Trump in a way that brought him wider attention and made him more appealing than he is. . . . I genuinely believe that if Trump wins and gets the nuclear codes there is an excellent possibility it will lead to the end of civilization.”

Here are some other Schwartz quotes from Mayer’s piece:

• “Trump only takes two positions. Either you’re a scummy loser, liar, whatever, or you’re the greatest.”
• “…it’s impossible to keep him focussed on any topic, other than his own self-aggrandizement, for more than a few minutes, and even then…”
• “Lying is second nature to him . . . . More than anyone else I have ever met, Trump has the ability to convince himself that whatever he is saying at any given moment is true, or sort of true, or at least ought to be true.”

Most psychologically analyzed presidential candidate ever?

In a presidential campaign riddled with divisive candidates on both sides of the political aisle, Donald Trump stands as perhaps the most divisive of all time. He also may be the most psychologically analyzed, with terms such as narcissist and sociopath recurring regularly in commentaries probing his psyche.

For example, in a lengthy piece titled “The Mind of Donald Trump” published in The Atlantic, Northwestern U. psychology professor Dan P. McAdams concluded:

Who, really, is Donald Trump? What’s behind the actor’s mask? I can discern little more than narcissistic motivations and a complementary personal narrative about winning at any cost. It is as if Trump has invested so much of himself in developing and refining his socially dominant role that he has nothing left over to create a meaningful story for his life, or for the nation. It is always Donald Trump playing Donald Trump, fighting to win, but never knowing why.

Concededly….

My own political views play a role in my assessment of Trump. Nevertheless, I have been a political junkie for years. I know the difference between a candidate I happen not to support and one who is deeply alarming and frightening as a potential President. Fueled by what I have learned about bullying behaviors, interpersonal aggression, and psychology, I believe that Trump represents a singular threat to the well being of this nation and even the world.

I realize there are others who feel differently. To illustrate, I was stunned earlier this spring when, after posting one of my pieces about Trump’s psychological make up to a Facebook page on workplace bullying, I was angrily dressed down by a consultant who works with abrasive bosses. She said I was injecting a divisive political tone to the discussions on that page. She even suggested that Trump, rather than being a bully, might be considered a victim of bullying at the hands of the media.

I responded that, in the context of examining and understanding bullying and abuse in the workplace, no one should be exempt from scrutiny merely because of their vocation, including politics. (Indeed, if our political leaders cannot be called out on their narcissistic and sociopathic traits, then we’re in big trouble!)

Well, my modest postings here are unlikely to shift the polls or strongly influence the broader public debate about the 2016 election. Nevertheless, as we head into a week that likely will witness the coronation of Donald Trump as the presidential nominee and leader of the Republican Party, I do feel compelled to urge that among a very problematic field of major candidates this year, he is the most dangerous.

Workplace bullying: Can a developing situation be nipped in the bud?

(image from thefreedictionary.com)

Can a developing, potential workplace bullying situation be nipped in the bud? In my judgment, the answer depends on definitions, the characteristics of the aggressor(s), and in some instances the savvy of the intended target.

So much of the research, commentary, and advice on workplace bullying, mobbing, and abuse assumes situations that have already elevated into a serious state. However, we know much less about situations that may start as lower level conflicts and then elevate into more serious interpersonal abuse — and whether informal or formal intervention could’ve prevented the latter.

For what it’s worth, here is my sense of the landscape on this question:

When a situation involves mostly incivility, rudeness, or disrespect, it may be resolvable.

When a situation involves an abrasive boss or co-worker, it may be resolvable.

When a situation is still one of conflict, strong difference of opinion, or a personality clash, it may be resolvable.

By “resolvable” I mean informal and formal means of working out differences, even in situations that might involve a perceived dignity violation. Talking things out and informal mediation are among the most common ways of getting to a better place. In more intractable circumstances, a move or transfer may be advisable before a situation becomes sharply acute.

In some, perhaps many, of these less severe instances, the personal traits of the individual experiencing the mistreatment will come into play. In no way I am suggesting that we engage in victim blaming here. Rather, I’m saying that an individual’s interpersonal skill set may play a role in navigating, avoiding, or stopping incivility and disrespect, as well as helping to ratchet down disagreements threatening to go haywire.

And, of course, the overall quality of management and the culture of the organization will feed into these equations, too. Quality workplaces are better equipped to handle these situations and resolve them fairly.

Interestingly, all of these scenarios may be defined — often wrongly, I believe — as bullying. In this context I think it’s vital for us to distinguish between individual bullying-type behaviors and genuine bullying or mobbing situations. The latter are what we most need to be concerned about in terms of personal impact.

The big, huge “however”

So folks, here’s my big however: When someone is subjected to intentional, targeted mistreatment designed to cause them harm or distress, that’s the game changer. Toss out of the window notions of conflict, differences of opinion, personality clashes, bad manners, or general jerkiness. The situation is now abusive, and we’re looking at genuine workplace bullying.

Incidentally, this is where I’ve set the bar for recovery under the anti-bullying Healthy Workplace Bill that I drafted. It’s about providing a legal claim for health harming, targeted abuse at work.

Once we’re at this point, a target’s strong interpersonal skills will be of less use. The bullying or mobbing has started, it is driven by malice, and the aggressor(s) aren’t that interested in patching up differences and making peace. The eliminationist instinct often has taken over.

In sum, if a situation quickly accelerates into full-fledged bullying, then nipping it in the bud is awfully hard. Other, less severe scenarios may possibly be resolved with only minor bloodshed.

Pitching the Healthy Workplace Bill in the waning days of the MA legislative session

The 2015-16 formal session of the Massachusetts Legislature ends at the end of the month, and we’re still in there pitching for the anti-bullying Healthy Workplace Bill (HWB). 

In Massachusetts, as in most other states, legislative sessions run in two-year terms starting early in the odd year. Typically, there is a flurry of activity early in the session as bills are filed and legislative sponsors are recruited. However, soon afterward, budget matters predominate the legislative agenda. Non-budget bills often get pushed to the side until the spring and early summer of the even year, and at that point there’s another rush of advocacy activity in the State House to be among a small percentage of bills enacted into law.

During the current session, the HWB (House No. 1771) came out of the gate with some 58 sponsors and co-sponsors, led by our longtime lead sponsor, Rep. Ellen Story, and Sen. Jennifer Flanagan. In the House of Representatives, the HWB quickly advanced to a stage known as Third Reading, which means that it is eligible for a full floor vote by the House. However, it has been stuck at Third Reading since last fall, despite our ongoing efforts to move it forward. (We are hardly alone in reaching such status; a lot of bills get held up at this point.) We are still trying to persuade the House leadership to bring it to a floor vote.

This Thursday on the Senate side, we attempted to add the HWB as an amendment to the Senate’s economic development package, thanks to the efforts of Sen. Flanagan. It was a long shot effort that didn’t succeed. Nevertheless, it gave us an opportunity to circulate materials to the Senators that explained the need for the HWB and refuted some of the criticisms lodged against it.

During the past couple of days, I’ve had brief, cordial conversations with both the Speaker of the House and the Chair of the House Committee on Bills in the Third Reading. They are aware of our bill and have listened to our reasons for supporting it. I am optimistic that the positive relationships we’re building within the State House will lead us to eventual success.

I’ve said this before, but state legislative advocacy can be a frustrating, exasperating process, for citizen advocates and legislators alike. In Massachusetts, we still have a chance with the HWB in the remaining days of the current session, and if we don’t succeed this time, we’ll be back again. It’s as simple as that.

Are we preaching wellness to wave off a closer look at core societal problems?

 

Journalist Laurie Penny, in a terrific piece for the punchy journal The Baffler, takes aim at the messaging of self-care and wellness from Powers That Be that may obscure a closer look at deeper societal problems:

The slow collapse of the social contract is the backdrop for a modern mania for clean eating, healthy living, personal productivity, and “radical self-love”—the insistence that, in spite of all evidence to the contrary, we can achieve a meaningful existence by maintaining a positive outlook, following our bliss, and doing a few hamstring stretches as the planet burns.

She posits that this “wellbeing ideology is a symptom of a broader political disease,” one that renders us believing that we can improve our lives only on an individual level. Thus, we are conditioned to assume “that if we are sick, sad, and exhausted,” the problem is one not of our economic system, but rather of personal fault:

The lexis of abuse and gas-lighting is appropriate here: if you are miserable or angry because your life is a constant struggle against privation or prejudice, the problem is always and only with you. Society is not mad, or messed up: you are.

Such a belief system may foreclose us “from even considering a broader, more collective reaction to the crises of work, poverty, and injustice.”

Individual vs. social change

To her credit, Penny does not dismiss the benefits of self-care and healthy living choices, confessing “that I’ve been doing yoga for two years and it’s changed my life to an extent that I almost resent.” But, at the very least, she’s asserting that the pendulum has swung away too far from societal perspectives on, and collective solutions to, conditions that stoke suffering, injustice, and deprivation.

Bingo. Especially here in the States, the wellness stuff may be a softer, gentler version of old fashioned American rugged individualism, embracing the myth that you make it or miss it on your own. Don’t get me wrong, being accountable to ourselves is a good thing. But all the personal responsibility in the world doesn’t make up for a stacked deck and abuses of power.

If we want to make the world a better place, we have to work on ourselves and our institutions and our communities, yes?

Applied to the workplace

This imbalanced focus on the individual captures why I have a problem with many workplace wellness programs. Standing in isolation, wellness programs are fine things. However, it is wholly ironic that these programs can pop up in workplaces that unnecessarily generate the very stressors and unhealthy living habits these programs are designed to address. Treating workers with dignity — including (at the very least) a living wage, fair employment practices, and a decent work environment — is the best employer-sponsored wellness program of all!

Of course, the individual vs. social change dichotomy can manifest itself in more dire workplace situations as well. For example, too many complaints about workplace bullying are dismissed as personality conflicts, and all too often the target of the mistreatment is blamed for somehow not adequately managing the situation.

This dismissive attitude ignores that workplace bullying has strong individual, organizational, and societal components. Of course, on an individual level, it involves perpetrators and targets, and those interpersonal dynamics can be complex. That said, workplace bullying is much less likely to occur in the absence of an organizational culture that enables or even encourages it. On a broader societal level, abusive behaviors at work can be fueled by an absence of legal protections and the presence of a popular culture that accepts them as normal.

We need a reframe

So, folks, we need a reframe, one that looks at human problems at both the individual and societal levels, with responses and solutions shaped accordingly. Perhaps we’ll even reach the point where we see individual change vs. social change as a false dichotomy, replaced by an understanding that we need both in order to create better lives, workplaces, and communities.

Brilliant primer on psychological trauma and its treatment: “The Body Keeps the Score”

In my continuing efforts to learn about psychological trauma wrought by workplace bullying, mobbing, and harassment, I’m diving into Dr. Bessel van der Kolk‘s The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (2014). It is the most lucid, accessible, and hopeful book about psychological trauma and possibilities for successful treatment that I’ve encountered, authored by one of the pioneering experts in the field.

Dr. van der Kolk is the founder and medical director of the Trauma Center in Brookline, Massachusetts. Here’s a blurb about his book from his webpage:

. . . (H)e transforms our understanding of traumatic stress, revealing how it literally rearranges the brain’s wiring—specifically areas dedicated to pleasure, engagement, control, and trust. He shows how these areas can be reactivated through innovative treatments including neurofeedback, mindfulness techniques, play, yoga, and other therapies. Based on Dr. van der Kolk’s own research and that of other leading specialists, The Body Keeps the Score offers proven alternatives to drugs and talk therapy—and a way to reclaim lives.

The Body Keeps the Score does not specifically discuss bullying behaviors as triggers for psychological trauma. But that absence should not chase away anyone who recognizes the trauma-inducing qualities of work abuse and wants to understand the dynamics of PTSD and its expanding array of promising treatment options.

A decade ago, when I began studying PTSD in connection with my work on workplace bullying, I despaired to find erudite analyses of this condition, concluding with pessimistic assessments on the likelihood of successful treatments. This book sounds a much more hopeful tone, grounded in leading edge research and practice.

I’m going to be saying more about The Body Keeps the Score in future posts, but for now I’m pleased to report that this is a potential difference maker for many who are experiencing the ravages of abusive work environments.