Healthy Workplace Bill: Forty-five percent of the Massachusetts legislature supports workplace anti-bullying legislation

The Healthy Workplace Bill (HWB), which permits targets of severe workplace bullying to seek damages in court and creates liability-reducing incentives for employers to act preventively and responsively towards bullying behaviors at work, is gaining considerable momentum in the new session of the Massachusetts legislature. As of Friday, February 1, lead sponsor Senator Paul Feeney has been joined by 90 legislative co-sponsors in supporting the bill — representing some 45 percent of the Massachusetts legislature.

This is one of the strongest showings of legislative support for comprehensive workplace anti-bullying legislation at the bill-filing stage in the young history of the national advocacy campaign on behalf of the HWB.

As readers familiar with legislative processes know, the process of enacting new legislation — especially on cutting-edge subjects — is often a long slog requiring patience and commitment. This is our fifth full session of bringing the HWB to the Massachusetts legislature. We’ve continued to build support for the HWB during every session, and that work is paying off. The current list of co-sponsors far exceeds the previous record of 58 for the 2015-16 session.

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For years, the lead sponsor of the HWB was Rep. Ellen Story, and her steadfast work brought us a long way. Since Rep. Story’s retirement, our new lead sponsor, Sen. Feeney, has stepped in to give the HWB his fullest commitment. Like Rep. Story, Sen. Feeney and his staff have worked closely with our advocates to build support for the bill.

On the advocacy front, special shout-outs go to two co-coordinators of this campaign: Deb Falzoi, whose invaluable efforts in leading our advocacy group and social media outreach have fueled the growing momentum behind the bill; and Greg Sorozan, whose vital work as a union leader through SEIU/NAGE (a major public employee union in Massachusetts) has given us critically useful insider assistance in advocating for the HWB in the legislature.

And at its core, this grassroots legislative campaign is about the thousands of individuals who are calling, e-mailing, and visiting their legislators to urge their support of the HWB. Many have shared personal stories of experiencing workplace abuse. A lot of folks are bravely stepping up to make a difference.

This work is far from finished. When it comes to legislative advocacy, there are no guarantees. That said, having 91 legislative supporters of the HWB in Massachusetts is a major step forward. We have gone from being a novelty, to a presence, and now to a genuine force. 

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The Massachusetts HWB currently carries the docket number 1355. The permanent bill number for the 2019-20 session will be assigned later. For more information about the Massachusetts advocacy campaign for the HWB, see its website (here) or Facebook page (here).

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As some readers may know, the seeds of the HWB were planted in a law review article that I authored (published in 2000 by the Georgetown Law Journal), in which I surveyed the serious inadequacies of existing employment protections for targets of workplace bullying and suggested the parameters of needed new legal protections. I drafted the original version of the HWB in 2002, and in 2003, it was filed for the first time in the California legislature — championed by Drs. Gary and Ruth Namie of the pioneering Workplace Bullying Institute.

When I embarked on this work some 20 years ago, I had no idea of where it might lead. But thanks to the efforts of countless individuals, we are now creating growing legislative recognition that the harm wrought by workplace bullying, mobbing, and abuse should be subject to legal consequences. At this point, it’s about building public support for legal measures to fill the huge gaps that leave workers so vulnerable to these forms of interpersonal mistreatment.

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Here is the current list of supporters. Because the State Senate has a later deadline for co-sponsoring bills, it is very possible that we’ll be adding additional names.

Name District/Address
Paul R. Feeney Bristol and Norfolk
Ruth B. Balser 12th Middlesex
Jack Patrick Lewis 7th Middlesex
Diana DiZoglio First Essex
Steven Ultrino 33rd Middlesex
Lindsay N. Sabadosa 1st Hampshire
Maria Duaime Robinson 6th Middlesex
Denise Provost 27th Middlesex
Rebecca L. Rausch Norfolk, Bristol and Middlesex
Daniel M. Donahue 16th Worcester
Carmine Lawrence Gentile 13th Middlesex
Angelo J. Puppolo, Jr. 12th Hampden
Carolyn C. Dykema 8th Middlesex
Patrick M. O’Connor Plymouth and Norfolk
James T. Welch Hampden
Aaron Vega 5th Hampden
David Allen Robertson 19th Middlesex
Natalie M. Higgins 4th Worcester
James J. O’Day 14th Worcester
Joanne M. Comerford Hampshire, Franklin and Worcester
Louis L. Kafka 8th Norfolk
Tommy Vitolo 15th Norfolk
Tram T. Nguyen 18th Essex
Carole A. Fiola 6th Bristol
Mike Connolly 26th Middlesex
Adrian C. Madaro 1st Suffolk
Thomas M. Stanley 9th Middlesex
James B. Eldridge Middlesex and Worcester
Anne M. Gobi Worcester, Hampden, Hampshire and Middlesex
Kevin G. Honan 17th Suffolk
Patrick Joseph Kearney 4th Plymouth
Daniel J. Hunt 13th Suffolk
Bruce E. Tarr First Essex and Middlesex
Kate Hogan 3rd Middlesex
Marjorie C. Decker 25th Middlesex
Michael J. Rodrigues First Bristol and Plymouth
Edward F. Coppinger 10th Suffolk
Bud L. Williams 11th Hampden
Bruce J. Ayers 1st Norfolk
Elizabeth A. Malia 11th Suffolk
John J. Mahoney 13th Worcester
Paul McMurtry 11th Norfolk
John J. Lawn, Jr. 10th Middlesex
David M. Rogers 24th Middlesex
Danielle W. Gregoire 4th Middlesex
Todd M. Smola 1st Hampden
John C. Velis 4th Hampden
Tami L. Gouveia 14th Middlesex
Jay D. Livingstone 8th Suffolk
Lori A. Ehrlich 8th Essex
Sal N. DiDomenico Middlesex and Suffolk
RoseLee Vincent 16th Suffolk
Tackey Chan 2nd Norfolk
Daniel R. Carey 2nd Hampshire
Alan Silvia 7th Bristol
David Henry Argosky LeBoeuf 17th Worcester
Paul W. Mark 2nd Berkshire
Russell E. Holmes 6th Suffolk
Jonathan D. Zlotnik 2nd Worcester
Antonio F. D. Cabral 13th Bristol
Andres X. Vargas 3rd Essex
Christina A. Minicucci 14th Essex
Ann-Margaret Ferrante 5th Essex
Michael O. Moore Second Worcester
Sean Garballey 23rd Middlesex
Jonathan Hecht 29th Middlesex
James M. Kelcourse 1st Essex
Mathew J. Muratore 1st Plymouth
Liz Miranda 5th Suffolk
Jerald A. Parisella 6th Essex
Elizabeth A. Poirier 14th Bristol
Donald F. Humason, Jr. Second Hampden and Hampshire
Joseph A. Boncore First Suffolk and Middlesex
Julian Cyr Cape and Islands
Michael F. Rush Norfolk and Suffolk
Susannah M. Whipps 2nd Franklin
Jon Santiago 9th Suffolk
Carlos González 10th Hampden
Brian M. Ashe 2nd Hampden
Paul F. Tucker 7th Essex
James Arciero 2nd Middlesex
Stephan Hay 3rd Worcester
Daniel R. Cullinane 12th Suffolk
David T. Vieira 3rd Barnstable
Jeffrey N. Roy 10th Norfolk
Chynah Tyler 7th Suffolk
Michelle L. Ciccolo 15th Middlesex
Kay Khan 11th Middlesex
James K. Hawkins 2nd Bristol
Mindy Domb 3rd Hampshire
Natalie M. Blais 1st Franklin

In the news 2018

Periodically I’m contacted by reporters about topics discussed on this blog. Here’s a fairly complete list of 2018 news stories in which I’ve been interviewed or where my work has been discussed:

Skipping Bible study? Ordering a deli platter? You may be violating company rules

Prepping for my WeWork interview

Periodically the media treats us to stories that illustrate the power of employers to control workers’ lives in ways that may have little to do with the actual product or service they are providing. This summer I spotted a couple of stories that fall into this category.

Thou shalt not skip Bible study

NPR’s Sasha Ingber reports on an Oregon construction company worker, Ryan Coleman, who filed a religious discrimination lawsuit after being fired for no longer attending Christian Bible study sessions, as required by his employer, Dahled Up Construction:

According to the complaint, he was hired as a painter in October 2017 and discovered on the job that he was required to attend Christian Bible study as part of his employment.

Coleman, who is half-Native American (Cherokee and Blackfoot), wasn’t comfortable with those terms, his attorney, Corinne Schram, told NPR. “He says his church is a sweat lodge, his bible is a drum, and that’s his form of worship to the creator,” Schram said.

According to the document, Coleman expressed his discomfort with attending the Bible study meetings and said the requirement was illegal, but business owner Joel Dahl insisted that he go anyway.

. . . After several months, Coleman finally refused to go to the religious sessions and was fired from the job, according to the filing.

Of sprouts and spinach leaves

WeWork is a company that rents co-working space to entrepreneurs and start-up business ventures. It has grown by leaps and bounds in cities where office real estate is expensive. As David Gelles reports for the New York Times, it also now limits company food and catering orders to vegetarian selections only:

WeWork is no longer a safe space for carnivores.

Earlier this month, the co-working juggernaut announced that it was essentially going vegetarian. The company will no longer serve red meat, pork or poultry at company functions, and it will not reimburse employees who want to order a hamburger during a lunch meeting.

In a memo to employees announcing the new policy, Miguel McKelvey, WeWork’s co-founder and chief culture officer, said the decision was driven largely by concerns for the environment, and, to a lesser extent, animal welfare.

Legal restrictions and management practices

Generally speaking, private sector employers enjoy wide leeway in setting company hiring and work policies, so long as they do not violate discrimination laws and similar protections.

The Bible study requirement directly implicates an employee’s right to be free of religious discrimination by an employer. The vegetarian food order requirement, however, does not appear to run afoul of any employment laws.

Legal distinctions aside, I think there’s a strong case for removing the company mandates in both situations. I respect that a business owner may want to create a company that embraces certain values. However, I also think that we need to give workers room to be themselves in their everyday choices.

It’s about getting the balance right.

On being restlessly patient in advancing positive law and policy reforms

A piece in the current issue of the Economist, the venerable British news magazine, resurrects the tax policy positions of Henry George, an author and political economist who built a worldwide following during the last half of the 19th century:

ON A trip to New York in the late 1860s the journalist Henry George was puzzled. He found the rapidly growing city to be a place of unimaginable wealth. Yet it also contained deeper poverty than the less-developed West Coast. How could this be? George had an epiphany. Too much of the wealth of New York was being extracted by landowners, who did nothing to contribute to the development of the city, but could extract its riches via rents. The problem could be solved by a tax on land values.

George’s subsequent masterpiece, “Progress and Poverty”, sold more copies in America in the 1890s than any other book except the Bible. It spawned campaigns for land-value taxation around the world. It also inspired a board game, “The Landlord’s Game”, a precursor to “Monopoly”. The game was designed to show how property markets naturally tend towards monopolies in which one player can extract all the rent.

Examining the current state of tax policy, the Economist concludes that a stronger reliance on land taxation might be a good thing.

I’ve been interested in George’s land tax proposal ever since reading about it in Robert L. Heilbroner’s The Worldly Philosophers: The Lives, Times, and Ideas of the Great Economic Thinkers back in college. (Heilbroner has passed, but his book — last revised in 1999 — remains, in my opinion, the most engaging, lucid, and accessible introduction to the history of economic thought.) As the Economist piece suggests, Henry George’s ideas would fade into obscurity. They have been kept alive by a small but determined band of economists and social activists, coalescing around a group of independent Henry George Schools dedicated to providing continuing education and scholarship about Georgist economic principles.

But the purpose of this writeup isn’t to convince you, dear readers, on the merits of Henry George’s taxation theories, even though I believe they are worth considering. Rather, it’s to point out that important ideas about law reform and public policy sometimes take years to percolate, in some cases beyond our lifespans.

With that reality in mind, I have favored an attitude of restless patience in advocating for desired changes in law and public policy. In this context I think of restless as being dissatisfied with the status quo. I think of patience as being smart, persistent, and determined. I have had to give myself this advice on at least three areas of law and policy reform very dear to me:

Workplace bullying and law reform

Some 20 years ago, my first law review article on the legal and public policy implications of workplace bullying was accepted for publication, and it would be published by the Georgetown Law Journal in 2000. Among other things, it surveyed potential legal protections for targets of workplace bullying under American employment law and found them wholly wanting. I proposed the parameters of what would become a model workplace anti-bullying statute, eventually dubbed the Healthy Workplace Bill (HWB).

For some 15 years, the HWB has been the main template for law reform efforts concerning workplace bullying, but it has not yet been enacted in its full form by any of the 30 states in which it has been introduced. However, in recent years we have had some breakthroughs, with several states and municipalities enacting workplace bullying legislation and ordinances drawing heavily from the language of the HWB. Unions and government entities are also using the HWB language to collectively bargain over workplace bullying concerns and to design internal agency employment policies.

Here in Massachusetts, we continue to work hard to make our state the first one to enact comprehensive workplace anti-bullying legislation. The HWB once again stalled in the just-completed session of the MA legislature, despite dozens of legislative sponsors and a positive report out of the committee overseeing it.

Advocacy work can be frustrating and sometimes demoralizing. But if you believe deeply in something, you keep going. Maybe you change strategies or tactics, but you persevere. And come January, when the 2019-20 session of the legislature begins, we’ll be ready to go.

Like an unwanted holiday fruitcake

In 2002, the Connecticut Law Review published my article on the legal status of interns, in which I looked at the burgeoning intern economy and concluded that many unpaid internships are running afoul of minimum wage laws. I hoped that the piece would quickly stir some interest, but for many years it pretty much sat there, like an unwanted holiday fruitcake.

This changed when a writer named Ross Perlin authored the first comprehensive examination of the explosive growth of unpaid internships, Intern Nation (2011). He referenced my 2002 law review article and called it “the single best source of information for American internships and the law.” (Thank you again, Ross, for pulling my article out of depths of Westlaw and Lexis-Nexis.) One of Ross’s readers, Eric Glatt, chased down my law review article and concluded that his unpaid internship with Fox Searchlight Pictures just might’ve been in violation of minimum wage laws. Eric would become the lead plaintiff in a federal lawsuit seeking compensation for that internship.

To our disappointment, federal courts have not been friendly to these claims brought by unpaid interns, adopting a very pro-employer legal test for exempting interns from the minimum wage. However, the door has not been completely closed on such legal claims, and the considerable publicity generated by these cases has caused many employers to opt to pay their interns. The debate over unpaid internships, once a non-existent one, continues to reverberate in business and legislative settings.

Should law be therapeutic?

In recent years I’ve allied myself with a much broader effort to change our laws and public policies, an interdisciplinary field of philosophy and practice called therapeutic jurisprudence. “TJ,” as it is commonly referred to, examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. It favors outcomes in legal disputes and transactions that advance human dignity and psychological well-being.

TJ was founded in 1987 by two American law professors, David Wexler and Bruce Winick. Although it has grown into a global network of scholars, lawyers, judges, and other practitioners, it has yet to enjoy a mainstream presence in legal academe or legal practice. To help expand TJ’s influence, we have formed a new non-profit, membership organization, the International Society for Therapeutic Jurisprudence. I am serving as the ISTJ’s first board chair.

I hope that someday, sooner than later, TJ will be recognized as a primary framing theory for the design and application of the law. In the meantime, I find myself inspired by that cohort of scholars, educators, and activists who have kept the flame of Henry George’s ideas alive for so many years.

On being restlessly patient

Indeed, I’d like to think that the spirit of Henry George is pleased to see his ideas about land taxation knocking on the door of greater mainstream reception. Of course, in my case I’d rather not wait for some 130 years to see workplace bullying laws widely enacted, interns being paid for their work, and our laws and public policies embracing human dignity and psychological well-being. But at least it’s a reminder that good ideas can’t be suppressed forever.

As I find myself urging upon those who are understandably frustrated with the pace of social progress and justice, we cannot control outcomes, we can only try to influence them. This is an especially important reality for the times in which we live. Buoyed by a spirit of restless patience, our job is to dig in, plant the seeds for positive change, and take part in moving our society toward something better.

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You may freely download my law review articles on workplace bullying, intern rights, and therapeutic jurisprudence from my Social Science Research Network page. At the risk of being immodest, I have been told by many folks who are not lawyers or academics that they are very readable and accessible, which I consider to be a supreme compliment.

Getting beyond the justice lottery of the #MeToo movement

When Fox News program host Gretchen Carlson agreed to a $20 million settlement of her claim accusing Fox News chairperson Roger Ailes of sexual harassment, it helped to spark a movement underscored by the harsh reality that behaviors prohibited under law still manage to flourish in too many workplaces and other settings.

However, for those who have been victimized by sexual harassment and assault, the #MeToo movement remains something of a justice lottery, with some folks more eligible to win than others. A small number of women — mostly in positions of prominence — obtain very large settlements or verdicts in civil claims, and/or pursue successful criminal prosecutions of their abusers. Meanwhile, many others are left to look at these highly publicized outcomes and wonder what it will take to get similar results in their situations.

Please don’t get me wrong. The #MeToo movement is overdue and vitally important. It’s just that there’s a lot more progress to be made before the results obtained in headline-making cases become the norm rather than the exception. This will require cooperative grassroots organizing and support, legal and policy advocacy in the trenches, and media outlets willing to give voice to the stories of all victimized individuals. It also would help if those who are influential within this realm commit to the proposition that the #MeToo movement is not done until it reaches all walks of life.

After all, the chances of obtaining justice should not rival the odds of buying a winning lottery ticket.

Should taxpayers pay when elected officials engage in sexual misconduct?

Stateline‘s Jen Fifield, in a piece that ran on PBS News Hour, asks why taxpayers should have to foot the bill when a legislator engages in sexual misconduct and a settlement is reached with the victim:

When Pennsylvania state Rep. Thomas Caltagirone was accused of harassing a staff member, the Legislature settled the matter outside of court. The state’s insurance paid out $250,000 in 2015, and no one said a word — even during the next year’s elections, when Caltagirone retained his seat.

This secret settlement is one of many involving state lawmakers or legislative aides that have been exposed in the last few months, as a wave of sexual misconduct allegations has flooded the country. And in state after state, the allegations of wrongdoing quietly went away after victims received payouts from public funds.

The revelation that legislatures frequently use taxpayer money to protect lawmakers and staff accused of harassment or assault has sparked outrage and prompted reporters to try to tally up the bill.

I was among those whom Fifield contacted for an opinion, and here’s what I said:

But some employment lawyers, such as David Yamada, a law professor and director of the New Workplace Institute at Suffolk University in Boston, say the issue is more complicated than it seems.

Holding individual lawmakers, and not the government, responsible for sexual harassment may lessen the incentive for legislatures to offer sexual harassment training and to police their own, Yamada said. And, because some lawmakers may not be able to come up with the money for a settlement, it also may make it less likely that the victim will receive compensation for her claim.

“There are better ways to spend public money than to have to spend it to atone for the misdeeds of public servants,” Yamada said. But, he said, “We have to hold public employers liable.”

In other words, I understand the outrage over using taxpayer monies to cover for misbehaving legislators and other elected officials. However, if local, state, and federal governments are not held at least jointly responsible for the misconduct, then there’s scant organizational incentive to act preventively and responsively.

In addition, let me add that especially in the public sector, such settlements and dispositions should always be public. As the phrase goes, sunlight is always the best policy. Furthermore, there also should be ways to publicly discipline or, where appropriate, remove an elected official who engages in sexual misconduct. After all, holding elected office should not insulate someone from responsibility for his or her wrongful actions. In severe cases of misconduct, having to wait until the next election for a chance to “throw the bum out” should be unnecessary; once an appropriate investigative finding is made, out the door they should go.

In the news

It has been a year of prominent news stories related to the workplace, especially the avalanche of accounts concerning sexual harassment. Here are many of the 2017 news stories in which I’ve been quoted or where my work has been discussed:

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