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:

My 2017 written testimony in support of the MA Healthy Workplace Bill

As some readers know, I am the author of the template version of the Healthy Workplace Bill (HWB), model workplace anti-bullying legislation that provides a civil claim for damages for bullied workers who can show they have been subjected to an abusive work environment and suffered physical and/or psychological harm as a result. The bill also includes liability-reducing incentives for employers who act preventively and responsively toward workplace bullying, mobbing, and abuse.

During the past eight years, we have been steadily building support within the Massachusetts legislature to enact the Healthy Workplace Bill, which has been filed in the current 2017-18 session as Senate No. 1013. Along with other advocates and supporters, I have filed written testimony in support of the HWB. Here is a slightly edited version of what I submitted in March:

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Written Testimony in Support of Senate No. 1013,

“An Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status”

 

(a/k/a “Healthy Workplace Bill”)

 

David C. Yamada

Professor of Law, Suffolk University Law School

Author, Healthy Workplace Bill 

Dear Members of the General Court:

As the author of the original language contained in Senate No. 1013, workplace anti-bullying legislation informally known as the Healthy Workplace Bill, I respectfully submit this testimony to summarize what we know about workplace bullying, the need for legal reform, and key features of the legislation. This is our fourth full session in bringing this bill to the Legislature, and we strongly believe that it should become law.

Workplace Bullying is a Form of Targeted, Interpersonal Abuse

Workplace bullying is the intentional, repeated, health-harming mistreatment of one employee by one or more employees, by verbal and non-verbal means. Individual bullying behaviors come in overt and covert varieties, such as

  • false accusations of mistakes and errors;
  • yelling, shouting, and screaming;
  • exclusion, ostracism and the “silent treatment”;
  • withholding resources and information necessary to the job;
  • behind-the-back sabotage and defamation;
  • use of put-downs, insults, and excessively harsh criticism;
  • hostile glares and other intimidating non-verbal behaviors;
  • unreasonably heavy work demands designed to ensure failure.

Workplace bullying is not:

  • everyday disagreements and “dust ups” in the office;
  • someone having a bad day and losing his/her temper;
  • reasonable instructions, directives, and employee reviews.

In the United States, workplace bullying is common, often top-down, and typically does not end well for those targeted. A 2014 national public opinion survey sponsored by the Workplace Bullying Institute and conducted by Zogby pollsters found that:

  • 7% of respondents are currently experiencing workplace bullying, and another 20% of respondents previously have experienced workplace bullying, using a definition that tracks the language of the Healthy Workplace Bill.
  • 56% of bullying is committed by supervisors; 33% by co-workers; 11% by subordinates.
  • The most common “resolution” is that the target leaves the job: Quit or forced out (48%); terminated (13%); transferred (13%).

Human and Organizational Costs

Workplace bullying can inflict health-impairing physical and psychological harm on targeted employees, including:

  • stress disorders of all types
  • clinical depression
  • high blood pressure
  • cardiovascular disease
  • impaired immune systems
  • suicidal ideation
  • symptoms consistent with Post Traumatic Stress Disorder
  • severe residual effects on family and personal relationships
  • life-altering decisions about whether to stay in or leave a job.

Workplace bullying is very costly to employers. Organizations that play host to workplace bullying may suffer a variety of negative effects, including:

  • decline in productivity
  • reduction in morale
  • fear and mistrust permeating the workplace
  • greater attrition and “presenteeism” (i.e., workers going through the motions)
  • higher health insurance and benefit costs
  • elevated risks of workplace violence

The Need for Legal Reform

Current Law Does Not Protect Bullying Targets or Encourage Employer Prevention

  • Most instances of severe workplace bullying, especially those unrelated to protected class status (sex, race, disability, etc.) and whistleblower retaliation fall between the cracks of existing employment law.
  • Targets of severe workplace bullying are repeatedly told by plaintiffs’ attorneys that they have no legal recourse.
  • In the 2014 Workplace Bullying Institute national survey, 63% of respondents “strongly support” and 30% of respondents “somewhat support” workplace bullying laws.

Main Features of Senate No. 1013

  • Provides workers with a legal claim for severe bullying behavior, but with a high threshold: They must establish that the behavior was intentionally abusive and caused tangible physical and/or psychological harm.
  • Imposes liability on both individual aggressors and employers, but allows employers to minimize liability by preventing and responding to bullying situations.
  • Includes provisions that discourage weak or frivolous claims.
  • Claims brought in court; no agency involvement.

Debunking Myths about the Healthy Workplace Bill

  1. “Existing harassment law is sufficient to protect bullying targets.” — This is untrue. Existing harassment law protects only those individuals who can prove that the harassment is due to their protected class membership, such as sex, race, or age.
  2. “Existing tort (personal injury) and workers’ compensation laws are sufficient to protect and compensate bullying targets.” — This is untrue. In Massachusetts, the Supreme Judicial Court has held that under exclusivity provision of the state’s workers’ compensation law, workers may not sue their employers for intentional infliction of emotional distress (IIED) and many other tort actions. Furthermore, workers’ compensation benefits are very difficult to recover for so-called “mental-mental” injuries, i.e., claims for psychological impairment based upon psychological mistreatment or harassment at work.
  3. “The HWB will open floodgates of litigation.” — Of course there will be lawsuits under the HWB; it would not be doing its job if workers did not bring claims under it. However, after an initial surge of litigation, the number of claims will moderate considerably once lawyers and the courts recognize the fairly high threshold for recovery. In fact, the HWB has been criticized from sectors of the left as setting too high a standard for recovery. Furthermore, Under the HWB, an employer may avoid liability by showing that it exercised reasonable care to prevent and correct promptly any bullying behaviors and that the employee unreasonably failed to take advantage of these remedial measures. This is practically identical to the liability-reducing incentives contained in current federal law covering sexual harassment.
  4. “The language of the Healthy Workplace Bill is too vague.” — Not if you consider the bill in its entirety. The HWB draws its definition of an abusive work environment from the U.S. Supreme Court’s definition of a hostile work environment for sexual harassment.
  5. “The HWB takes away traditional management rights.” — This is untrue. The HWB takes away only the current right to treat someone abusively. It preserves management rights by providing an affirmative defense where the complaint is based on upon (1) an adverse employment action (such as a termination) reasonably made for poor performance, misconduct, or economic necessity; or (2) a reasonable performance evaluation; and (3) where the complaint is based on the employer’s reasonable investigation about potentially illegal or unethical activity.

An Emerging Law Reform Movement on Behalf of Human Dignity at Work

  • Healthy Workplace Bill (HWB) and related bills in 30 states — Since 2003, the Healthy Workplace Bill and related workplace bullying legislation have been introduced in 30 states.
  • Massachusetts – In the 2011-12 and 2015-16 sessions, the HWB advanced to Third Reading in the House; in the 2013-14 session, the HWB advanced to Second Reading.
  • Illinois — In March 2010, a version of the HWB covering public employees was approved by the Illinois State Senate by a 35-17 vote.
  • New York — In May 2010, the New York State Senate passed the HWB by a 45-16 vote that included strong bipartisan support.
  • California – In 2014, California enacted a law requiring larger employers to engage in supervisor training and education concerning workplace bullying.
  • Tennessee – In 2014, Tennessee enacted a law directing a state commission to develop a model workplace bullying policy for public employers.
  • Other nations — Australia, Canada, Great Britain, Ireland, and Sweden are among the growing number of nations that already have enacted laws and regulations covering workplace bullying.

Conclusion

If I can be of any assistance toward understanding the phenomenon of workplace bullying and the underlying legal and policy issues, as well as specific provisions contained in the Healthy Workplace Bill, please contact me.

Personal crises and work life

Writing for the Harvard Business Review, Amy Gallo provides a very good advice piece on how to think through options when a personal crisis is affecting your work life. The crisis may be a family member with an illness, your own health situation, a divorce, or any other significant external stressor. Gallo’s full article goes into helpful detail, explaining key advice and discussing several case examples. She summarizes her major points this way:

Do:

  • Determine what type of support you need — at home and at work.
  • Tell your colleagues what’s happening so that they feel compassion for your situation.
  • Make clear, specific requests of your coworkers and boss so that they know how they can help you.

Don’t:

  • Feel you have to tell everyone directly — it’s OK to ask close colleagues to explain to others what’s going on.
  • Share every detail of your situation; tell coworkers only the details that are pertinent to them.
  • Assume that it will be painful to continue working during this time — sometimes going to the office can be a comfort.

Employee benefits

I’m going to put on my employment lawyer hat and underscore the importance of understanding your benefit options.

First, know your employee benefits. They may include, among other things, vacation and sick days, personal leave, and perhaps even pay advances or long-term disability coverage.

Second, if the situation involves your own health, you may have a right to a reasonable accommodation under the Americans with Disabilities Act and/or an equivalent state law.

Third, if your health or that of an immediate family member is involved, consider the option of unpaid leave under the Family and Medical Leave Act. Some employers and a few jurisdictions may offer paid medical leave.

Words of caution

Finally, if you happen to be working for a not-so-great employer, be careful about disclosures and requests involving personal crises — notwithstanding Amy Gallo’s advice. Unfortunately, there are all too many stories of unscrupulous employers using an employee’s personal crisis as a way of pushing them out of the workplace. Maybe they don’t want to provide medical leave or a reasonable accommodation. Maybe they’re looking for the right excuse to get rid of an otherwise productive worker. As many of those who have experienced workplace bullying can attest, some abusive managers are very, very good at sniffing out vulnerability.

If you think your situation may be putting your job at risk, that is the time to seek the advice of a lawyer who specializes in representing employees. For more on securing an employment attorney, see my article posted earlier this year, “Bad work situations: When do you need an employment lawyer?

On racism and bias: Research confirms that Rodgers & Hammerstein got it right

In the aftermath of the Charlottesville, Virginia, white supremacist rally, the Washington Post‘s William Wan and Sarah Kaplan set out to learn about the science behind racism and bias. Here’s an answer from one social psychologist they interviewed:

“In some ways, it’s super simple. People learn to be whatever their society and culture teaches them. We often assume that it takes parents actively teaching their kids, for them to be racist. The truth is that unless parents actively teach kids not to be racists, they will be,” said Jennifer Richeson, a Yale University social psychologist. “This is not the product of some deep-seated, evil heart that is cultivated. It comes from the environment, the air all around us.”

And here’s more from another psychology prof:

“An us-them mentality is unfortunately a really basic part of our biology,” said Eric Knowles, a psychology professor at New York University who studies prejudice and politics. “There’s a lot of evidence that people have an ingrained even evolved tendency toward people who are in our so-called ‘in group.’”

But how we define those groups, and the tendency to draw divisions along racial lines, is social, not biological, he added. “We can draw those lines in a number of ways that society tells us,” he said.

…“The most likely predictor of that is exposure to a kind of ideology,” Knowles said. Most if not all people carry implicit biases and unexamined prejudices, he said, and some may harbor feelings of fear or resentment that they don’t express in public.

These insights are important, and kudos to these reporters for presenting a scientific perspective on the racism that motivated this horrible event. As helpful as this research is, however, it only reaffirms what some folks have known for years: That bigotry and bias are taught and reinforced by society.

In fact, if you want a more pop culture approach to this basic postulate, go back to the classic Rodgers & Hammerstein musical “South Pacific,” which opened on Broadway in 1949 and was later made into a movie in 1958. Set on a South Pacific island during World War II, the show deals with serious issues of race and color and was considered quite controversial for its time. One of the numbers, “You’ve Got To Be Carefully Taught,” is about how people learn racist beliefs and intolerance. Go here or click above for a snippet of the song from the movie version.

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Related note: The Bloomberg/BNA Daily Labor Report interviewed me about the employment law implications of the Charlottesville rally in this piece, “Can You Fire Someone for Attending a Rally of Racists?”

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