A view from Vienna: New wine and new bottles for the practice and substance of law

It seems that every time you turn a corner in Old Vienna, you see sights like this one. (photo: DY, 2015)

Location indeed: It seems that every time you turn a corner in Old Vienna, you see sights like this one. (photo: DY, 2015)

Yup, as the real estate folks might say, sometimes it’s all about location, location, location.

As I wrote over the weekend, I’m in Vienna, Austria, for the International Congress of Law and Mental Health. Among other things, this biennial gathering allows me to reconnect with people and ideas associated with therapeutic jurisprudence (TJ), the pioneering school of legal thought that examines the therapeutic and anti-therapeutic properties of law, legal processes, and legal practice.

It struck me how absolutely cool it is to be at this particular conference in a city where matters of the mind have such deep historical roots. It is both inspiring and instructive to exchange ideas with scholars, practitioners, judges, and students who embrace no less than a transformative commitment to creating laws and legal systems that advance psychological well-being.

Professor David Wexler, a co-founder of therapeutic jurisprudence, is fond of invoking a “new wine” and “new bottles” analogy for describing TJ’s role. In a 2014 law review article about the criminal justice system, David suggests that we “think of TJ professional practices and techniques as ‘liquid’ or ‘wine,’ and . . . think of the governing legal rules and legal procedures—the pertinent legal land- scape—as ‘bottles.'”

In other words, the “wine” of the law is how lawyers and other legal stakeholders go about doing their work. This may include essential lawyering tasks such as interviewing clients, negotiating settlements, and conducting litigation. The “bottles” of the law are the substantive rules that define legal rights, responsibilities, and relationships and the procedural structures and mechanisms by which we attempt to resolve legal matters.

I like the wine and bottles analogy, and it certainly applies to my realm of employment and labor law and policy. A TJ-inspired “wine” for employment law practice involves acting preventively concerning employment disputes, trying to mend work relationships rather than to further fracture them, and engaging in smart, sensitive client counseling.

A TJ-inspired “bottle” for employment law includes drafting and advocating for the anti-bullying Healthy Workplace Bill, the very topic that attracted me to therapeutic jurisprudence in the first place. Properly constructed workplace bullying legislation creates incentives for employers to act preventively and responsively towards bullying behaviors and provides targets with a legal claim for damages.

I realize that some readers may pass over articles in which I toss around this unwieldy sounding term. “Therapeutic jurisprudence” is a mouthful, yes? But let’s think about it: How much better would our laws and legal systems be if they were designed mainly to encourage psychologically healthy outcomes? If you understand the significance of this question, then you now comprehend the essence of therapeutic jurisprudence and why it’s so important.

U.S. Appeals Court deals setback to interns seeking to be paid for their work

The U.S. Court of Appeals for the Second Circuit has reversed a lower federal court decision holding that two unpaid interns hired by Fox Searchlight Pictures were entitled to back pay under minimum wage laws and certifying a class action on behalf of other interns hired by the company. The Second Circuit’s decision in Glatt v. Fox Searchlight Pictures, Inc.released today, is the latest development in a much-watched case about the employment rights of unpaid interns.

In 2013, a federal District Court in New York held that lead plaintiffs Eric Glatt and Alex Footman were employees for purposes of federal and state labor standards laws and thus entitled to compensation for their internships. The court also granted plaintiff Eden Antalik’s motion class certification under New York labor standards law and granted conditional class certification under federal labor standards law.

Primary beneficiary test

In reversing the District Court, the Second Circuit rejected the U.S. Department of Labor’s six part test for determining when private employers may be exempt from paying their interns the minimum wage. This test, among other things, considers whether or not the intern was providing an immediate benefit to the internship provider. Instead, the Court ruled that a “primary beneficiary” test should apply, examining “whether the intern or the employer is the primary beneficiary of the relationship.” The Court further offers its own set of factors to be applied toward this determination, heavily favoring intern providers and significantly discounting the work contributions of an intern.

In practical terms, the decision invites private employers and universities to collaborate on schemes that (1) create unpaid internships; and (2) charge students tuition for the “privilege” of doing unpaid work. Yes, that’s a strong characterization, but it’s pretty easy to read between the lines of this judicial opinion. However, the ruling also leaves vulnerable those employers who offer full-time unpaid summer internships not tied to a university educational program.

Class actions

The Second Circuit decision also makes it more difficult for interns to file class actions for unpaid wages. The practical downside here is that unpaid intern claims will be less appealing cases for lawyers, thus rendering this widespread practice more difficult to challenge in the courts.

Not the end of the case

This is not necessarily the end of the Glatt litigation. The Second Circuit did not dismiss the lawsuit; rather it “remanded” the case back down to the District Court for a potential decision in congruence with the new legal standards specified in this opinion. It is possible, for example, that Glatt and Footman could still be owed back wages under the more stringent, one-sided factors adopted by the Second Circuit.

The Second Circuit’s decision is a setback, albeit possibly only a temporary one, for an emerging movement challenging the widespread practice of unpaid internships. I’ll have more to say about the implications of this decision soon.

Slowly but surely, workplace bullying laws are becoming a reality in the U.S.

HWB_logo_09

Not too long ago, any reference to workplace bullying laws in the U.S. was purely aspirational. During the past three years, however, several states and municipalities have enacted workplace bullying laws that, while falling short of providing comprehensive protection to targets of these behaviors, signal America’s growing commitment to using the legal system to prevent and respond to abusive work environments.

Since 2003, some 30 American states and territories have considered some form of workplace bullying legislation, a variation of the Healthy Workplace Bill, model anti-bullying legislation I have drafted that provides targets of severe workplace bullying with a legal claim for damages and creates liability-reducing incentives for employers to act preventively and responsively toward bullying behaviors at work.

As the full versions of the Healthy Workplace Bill continue to gain support in state legislatures, several jurisdictions have enacted some form of workplace bullying legislation. Here is a brief summary:

Fulton County, Georgia (2012)

In 2012, the Commissioners of Fulton County, Georgia, adopted a workplace anti-bullying policy that covers county employees. Under the policy, suspension and termination are possible sanctions for those who engage in severe bullying behaviors.

The Fulton County measure prohibits abusive conduct such as repeated derogatory insults and epithets; conduct of a threatening or intimidating nature; and the deliberate sabotage of someone’s work.

Tennessee (2014)

In 2014, Tennessee enacted a statute directing a state commission to develop a model workplace anti-bullying policy for potential adoption by state, country, and local governmental entities. The new law does not create a legal cause of action for bullied workers. Rather, adoption of the state’s model policy or one that comports with its essential features will insulate a public entity from liability:

 …(I)f an employer adopts the model policy . . . or adopts a policy that conforms to the requirements set out in [the statute}, then the employer shall be immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish. Nothing in this section shall be construed to limit the personal liability of an employee for any abusive conduct in the workplace.

Obviously this is far from ideal. The specific language of the immunity provision potentially transforms the Tennessee statute into an employer safeguard measure rather than an employee protection law. The model policy has been developed, drawing heavily upon language of the Healthy Workplace Bill, but so far Tennessee officials have balked at adopting and implementing it.

California (2014)

California’s employment discrimination statute requires “(a)n employer having 50 or more employees” to “provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position.” Now, thanks to the 2014 amendment, covered employers must include “prevention of abusive conduct” in these training and education programs. “Abusive conduct” is defined as:

…conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

The definition is a verbatim adoption of that contained in an earlier template version of the Healthy Workplace Bill. Furthermore, California’s requirements for sexual harassment training and education are fairly specific, but it is unclear from the language of the amendment whether training and education concerning workplace bullying will have to be as thorough as that for sexual harassment. Nevertheless, this will surely give rise to the development and marketing of education and training programs.

The California amendment does not create an independent legal claim for abusive conduct, which makes references to legally actionable conduct covered in the state’s discrimination law inapplicable to bullying situations unrelated to protected class status. However, this amendment at least raises the possibility of bullying-related wrongful discharge claims grounded in contract theory, and it certainly has caught the attention of California’s employment lawyers.

Utah (2015)

Earlier this year, Utah enacted a law requiring state agencies to train state supervisors and employees about how to prevent abusive conduct. This training, to be provided biannually, must include the definition of abusive conduct, its ramifications, resources available, and the employer’s grievance process. In addition, professional development training will also cover ethical conduct and leadership practices based on principles of integrity. The law covers only state workers and does not create a legal claim for bullying-related conduct.

Implications

  1. Workplace bullying legislation will be increasingly significant to employee relations stakeholders in the U.S.
  1. The current trend of legislative activity strongly favors public sector interventions.
  1. Laws such as California’s, which implicate private sector employers, are likely to have wider ripple effects on employee relations stakeholders, including lawyers, consultants, and trainers.
  1. The enacted state laws are very limited in scope. They heavily favor anti-bullying policies and training, while resisting the creation of new legal claims for damages for workplace bullying. This is not sufficient to encourage employers to take workplace bullying seriously.
  1. The definition of abusive work environments (a/k/a workplace bullying) as set out in the template Healthy Workplace Bill is very evident in recently enacted laws.

As I’ve written here before, legislative advocacy requires ongoing patience and determination; it is a not a game for those who expect quick, effective responses to even the most significant of problems. Nevertheless, this shows we’re making progress. American state legislatures in so-called red and blue states alike are demonstrating a willingness to seriously consider and even enact workplace bullying laws.

***

This blog post is adapted from my presentation, “The Impact of New Workplace Bullying Laws on American Employee Relations Stakeholders,” at last week’s Work, Stress, and Health conference, co-sponsored by the American Psychological Association, National Institute for Occupational Safety and Health, and Society for Occupational Health Psychology.

Those who would like to read more in-depth commentaries about workplace bullying and the law may freely download my law review article on this and related topics from my Social Science Research Network page.

U.S. legislative developments concerning workplace bullying (2013-15)

I just posted to my Social Science Research Network (SSRN) page a draft of a forthcoming law review essay, “Workplace Bullying and the Law: U.S. Legislative Developments 2013-15,” slated to appear later this year in the Employee Rights and Employment Policy Journal, published by the Chicago-Kent College of Law. This short piece is a follow-up to a panel presentation I gave in January at the Annual Meeting of the Association of American Law Schools.

Here’s the abstract:

In 2014, California and Tennessee enacted statutes covering workplace bullying, making them the first American states to codify laws addressing this form of interpersonal mistreatment at work. These two statutes led a procession of recent legal and policy initiatives concerning workplace bullying in the United States, which also included a vetoed state bill and continued advocacy at the state levels for enactment of comprehensive workplace anti-bullying legislation. This essay, a follow-up to my panel presentation at the 2015 Annual Meeting of the Association of American Law Schools, will discuss significant legislative developments concerning workplace bullying at the state levels, covering 2013 through early 2015. It is the latest in my series of periodic law review commentaries about workplace bullying and American employment law.

The essay focuses on four states: It summarizes and analyzes the new California and Tennessee laws. It discusses the merits of a gubernatorial veto of workplace bullying legislation in New Hampshire. Finally, it examines the fortunes of the Healthy Workplace Bill in Massachusetts. This is by no means a comprehensive summary of legislative activity during the past three years, but rather takes a snapshot look at some of the most significant recent developments.

You may download pdfs of this piece and my other law review commentaries without charge from my SSRN page.

Bad Tweets, the Internet, and mobbing behavior

Illustration accompanying Jon Ronson's "How One Stupid Tweet Blew Up Justine Sacco's Life," NY Times Magazine

Photo of illustration by Andrew B. Myers and Sonia Rentsch accompanying Jon Ronson’s NY Times Magazine article (Photo: DY)

Let’s say you have a Twitter account, and one day, in a flash of supposed brilliance, you think of something clever but offensive and edgy. Your brain’s screening process falls prey to your quick wit, and you decide to Tweet it. Even though you don’t have many followers, somehow your Tweet goes viral. Before you know it, thousands of people you’ve never met are calling you the worst human being on the planet and demanding that you lose your job (or worse).

Justine Sacco and others

If you doubt how easily this can happen, take a look at Jon Ronson’s excellent piece in the New York Times Magazine, “How One Stupid Tweet Blew Up Justine Sacco’s Life.” In 2013, Sacco was a 30-year-old New York communications executive on her way to visiting family in South Africa when she issued a series of Tweets about her travel experience. Here is the Tweet that became her downfall:

Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!

By the time she landed in South Africa, it had gone viral, with the Internet lighting up with cries of indignation and racism. As a result of the outcry, Sacco would soon lose her job, and her reputation would be in tatters.

Ronson goes into some detail about Sacco’s experience, sharing parts of several interviews with her. In addition, he provides stories of other individuals who said or allegedly said something that caused offense and rippled at hyper speed through the online world, ultimately imposing a heavy price in terms of careers and reputations.

Mobbing behaviors

In most cases, the virulent anger fueling the responses directed toward offending Tweet authors far outweighs the purported sin. The stories that Ronson shares in his article are excellent examples.

It struck me as eminently fitting that Ronson’s piece is accompanied by the illustration above, showing birds ganging up on one of their own. During the 1980s, the late Swedish psychologist Heinz Leymann used the term “mobbing” to describe the kinds of abusive, hostile behaviors that were being directed at employees by their co-workers. Leymann’s theories were informed by the mobbing behaviors of birds! (Leymann was a pioneer practitioner and theorist in addressing workplace bullying, mobbing, and abuse. You can learn more about his work here.) While the situations Ronson describes are not solely work-related, the mobbing dynamics resonate strongly with Leymann’s work.

The hazards of Tweeting

Of course, virtually any offensive or provocative online utterance these days has some potential to go haywire. As for Twitter specifically, while it is a tremendously useful tool for informational networking, when used as a horn for drawing attention to one’s self or opinions, there’s an instant premium put on sharp, witty, and/or clever turns of the phrase. It’s an easy recipe for getting into trouble with a reckless or thoughtless statement or joke. Misguided Tweets have become one of the leading sources of public apologies, not only for celebrities and famous people, but also in the case of Justine Sacco and others like her, for everyday folks as well.

Over the years, many people have suggested to me that I start a Twitter account in order to promote the work I’m doing. My standard reply is that when it comes to social media, blogging and Facebook are just about all I have time for right now. But if I’m being totally honest, I must confess that another reason why I stay off of Twitter is that I don’t trust myself to avoid saying something really, really stupid with it. I fully understand how easy it is to Tweet first, think later.

Online floggings

I’m not defending the publication of insensitive, offensive, or hurtful jokes and statements. Nor am I suggesting that those who engage in abusive behaviors should be excused for their actions. But stories of public mobbings in response to relatively minor offending words constitute more evidence that the Internet, and our public discourse in general, have turned into free-for-alls that implicitly permit people to pummel, pillory, and threaten others for their perceived mistakes. These are not the characteristics of a healthy, compassionate society.

***

Legal briefing

You may wonder after reading this and Ronson’s article how someone can be so quickly terminated for behavior unrelated or perhaps only tangentially related to work. In America, at least, the rule of at-will employment is the norm, whereby an employer can fire someone for any reason or no reason at all. This rule is grounded in a legal structure called “master and servant” relations, and you can guess who is the master and who is the servant. For more on this, see my 2013 blog post, “Master and servant”: The roots of American employment law.

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Unpaid intern cases to be heard by federal appeals court

Cover of amicus brief filed by National Employment Law Project

Cover of amicus brief filed by the National Employment Law Project

On Friday morning, the U.S. Court of Appeals for the Second Circuit will hear oral arguments in two cases involving the legality of unpaid internships, Glatt v. Fox Searchlight Pictures and Wang v. Hearst Corporation. Both cases are on appeal from lower court rulings. The Second Circuit, which sits in New York City, is one of the nation’s most prominent federal appellate courts. Its decision will apply to the many New York employers that hire interns and will influence courts in other parts of the country that are deciding wage claims brought by unpaid interns.

The key issues before the court today are:

1. What legal standard will be applied to employers who seek exemptions from minimum wage laws for interns?

2. What legal standard will be used to certify class action lawsuits on behalf of unpaid interns?

We can expect a decision on these cases sometime this spring.

As long-time readers of this blog know, I’ve been writing about the intern economy and legal issues concerning the widespread practice of unpaid internships for many years. In addition, for the Glatt and Wang cases, I signed onto “Friend of the Court” (a/k/a “amicus”) briefs submitted by the National Employment Law Project in support of the interns pursuing these claims.

During the past couple of days, I’ve been interviewed by print media on the pending cases. Here are two articles that summarize the significant legal issues:

Fortune: Claire Zillman, “Unpaid interns have their day in court — again”

Wall Street Journal: Rachel Feintzeig, “A Question for the Court: What’s an Intern Worth?”

 

 

Presenting about workplace bullying & the law at annual legal education conference

On Monday, I’ll be participating in a panel discussion titled “Emotions At Work: The Employment Relationship During an Age of Anxiety,” at the annual meeting of the Association of American Law Schools (AALS), being held this year in Washington, D.C. My presentation is titled “Is Workplace Bullying Entering the Mainstream of American Employment Law?”

The AALS annual meeting is the major U.S. conference for legal academicians, and thus it will be a good opportunity to talk about workplace bullying and the law with fellow employment law professors.

In essence, I’ll be briefly covering developments that long-time readers of this blog have been following for years, including:

  • Introduction of the Healthy Workplace Bill in some 25 states over the past decade;
  • California and Tennessee workplace bullying legislation enacted in 2014;
  • Municipal and county anti-bullying policies covering public workers & proclamations supporting Freedom from Workplace Bullies Week ;
  • County grand jury reports on workplace bullying in county agencies;
  • Insurance companies starting to cover bullying-related lawsuits in Employment Practices Liability Insurance policies;
  • Professional associations, such as the Joint Commission (a non-profit organization that accredits health care providers), addressing workplace bullying in their membership requirements; and,
  • A growing amount of legal scholarship and coverage in the legal media about workplace bullying.

While these are all constructive developments, my main editorial point will be that workplace bullying has yet to enter the mainstream of U.S. employment law, especially in comparison to its presence in academic and professional fields such as organizational psychology and human resources. And obviously, we’re behind those countries that have enacted workplace bullying laws on a national or state/provincial levels.

***

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