“Mass exploitation hidden in plain sight”: Idaho-bound to discuss unpaid internships

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Tomorrow I’m off to Boise, Idaho to participate in a conference — “Equality in Employment” — sponsored by the Idaho Law Review. On Friday I’ll be discussing the legal and policy implications of unpaid internships as part of a panel on exploitative labor practices.

The title of my talk and a forthcoming essay to appear in the Idaho Law Review is “‘Mass Exploitation Hidden in Plain Sight’: Unpaid Internships and the Culture of Uncompensated Work.” The first part of the title is a quote taken from a passage in Ross Perlin’s Intern Nation (rev. ed. 2012), with Ross’s blessing.

Here’s the abstract for my talk:

Although gaining internship experience has become a largely expected rite of passage for those seeking entry into many professions and vocations, until recently the legal implications of unpaid internships had remained something of a sleeping giant. In recent years, however, growing attention has been directed to this subject through litigation, legislative advocacy, social activism, and media coverage. My remarks, drawing on previous and current scholarship, will summarize the emergence of the so-called intern economy, examine the two primary legal issues relating to unpaid internships, and discuss several significant, broader policy themes concerning the intersection of internships, education, and the nature of paid employment.

It’s a lot to cover in 25 minutes, but I’ve become pretty good at focusing on the highlights! In addition, I’m looking forward to a stimulating day of presentations and discussions with learned colleagues and students at the University of Idaho College of Law.

Slow retaliation: When workplace payback is subtle, nuanced, and drawn out

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We tend to think of workplace retaliation as being immediate, dramatic, and obvious: An employee files a sexual harassment complaint against her boss and is savagely bullied in response. A worker complains of unsafe working conditions and has his hours reduced. A group of workers engage in a union organizing campaign and are terminated. And so on.

But there’s another, insidious form of retaliation sometimes visited upon those who raise legal and ethical concerns at work. 

This type of retaliation lacks the sudden oomph that easily trips the legal wires of anti-retaliation provisions and whistleblower laws. Rather, it may come in milder doses, such as smaller raises, fewer opportunities for advancement, petty criticisms and slights, and selective marginalization that stops short of complete exclusion. It is subtle, nuanced, and drawn out over time, sometimes morphing into a seemingly organic or cultural practice of treating a dissenter as the Permanent Other.

Less obvious and immediate, and cloaked in the subjective standards of the modern workplace, slow retaliation provides the perpetrators with a veneer of deniability. Even if the target has her suspicions, the tracks have been covered.

Slow retaliation typically occurs in insular, insecure, dysfunctional institutions, and it is often directed at someone whose strong performance would make sharp, full frontal retaliation all too transparent. Of course, if the target of such low-level payback ever commits a transgression or falls short in any way that opens the door for serious discipline or discharge, then the guns will come out blazing with righteous fury: Now we’ve got him in our sights. Fire away.

Legal claims for retaliation are easiest to win when the retaliatory behaviors are significant and come soon after filing a complaint or reporting a concern. By contrast, slow retaliation can be next to impossible to prove, requiring the complainant to piece together a collection of behaviors, often at the hands of different actors, in an attempt to show an orchestrated pattern in response to the triggering act. Short statutes of limitations may complicate matters as well.

The “good” news is that slow retaliation — at least in the lesser form described here — can be tolerable, falling short of behaviors that severely undermine psyches, careers, and livelihoods. This is hardly an ideal state of affairs, but in a world that often requires trade-offs in work situations, at least the target has some degree of self-negotiated choice.

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The sociopathic employee handbook

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I once had an opportunity to review provisions of an employee handbook from a large, mostly non-union employer in the non-profit sector. Like many employee handbooks, there were sections devoted to employee rights, obligations, and performance expectations. On the surface, this handbook seemed to provide a good number of safeguards for workers to prevent unfair treatment and evaluations. But then I read the document more closely, and a chill ran up my spine. It was a cleverly, nay, ingeniously worded document that exposed workers to severe remedial measures, substantial discipline, or even termination for relatively minor inadequacies and transgressions. 

Among my reactions was that this read like the work of a sociopathic lawyer! The handbook contained a lot of cool, calm, bureaucratic-sounding language, mixed in with deftly worded provisions that would allow the employer to make mountains of molehills and to quietly knife people in the back — figuratively speaking, of course.

Employee handbooks are legally significant. During recent decades, state courts have consistently held that handbook provisions can be contractually binding upon employers and employees alike. For better or worse, employee handbooks heavily weighted toward management prerogative are pretty much the norm these days.

However, much worse are those handbooks that have a distant appearance of fairness while actually being loaded with details that can be used to roughhouse rank-and-file employees. I think there is a special place in a certain hot spot for those who write and impose such documents on workers. It is, to be sure, a twisted abuse of power.

Fear of retaliation: A prime indicator of organizational integrity and decency

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There are plenty of factors that go into what makes a good workplace, but I’d like to zero in on one measure: Do employees have reason to fear retaliation if they report alleged wrongdoings, such as discrimination and sexual harassment, bullying, unsafe working conditions, or ethical transgressions, or if they engage in legally protected activities such as union organizing?

The answer to this question speaks volumes about an organization’s integrity and decency. It all boils down pretty clearly: The good organizations don’t retaliate against individuals for engaging in legally protected conduct or for reporting potentially illegal or wrongful behaviors. The bad ones do.

Retaliation can take many forms, including:

  • Active, targeted, threatening, and prompt retaliation via overt and covert means;
  • Milder, usually indirect retaliation that makes it more difficult to establish a cause-and-effect relationship;
  • Taking a wait-and-see approach by watching the employee for the slightest mistake or transgression, and then blowing it up into a major performance weakness or act of misconduct;
  • Icing out the employee from various opportunities, while building elaborate, pretextual justifications for doing so; and,
  • Retaliating against the employee’s compatriots or friends.

Most protective employment statutes, such as discrimination laws, collective bargaining laws, and health & safety laws, have anti-retaliation provisions designed to protect those who report alleged violations and who cooperate with related investigations and legal proceedings. But prevailing on such claims is not easy, and the nastier the employer, the more likely it is to have raised hiding its motives to an art form.

A lot of retaliation takes the form of workplace bullying. However, establishing motive and causation under anti-retaliation provisions of various laws can be a challenge. It’s among the reasons why we need standalone legal protections against workplace bullying.

Freedom from fear is an important element of dignity at work. Praise be to organizations that truly practice this value.

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The article in the screenshot above is just one of an endless number of pieces online about fear of retaliation for whistleblowing and asserting one’s legal rights.

On being “in the arena” and “daring greatly”

(Photo: Wikipedia, from Library of Congress)

(Photo: Wikipedia, from Library of Congress)

In April 1910, former President Theodore Roosevelt delivered a speech at the Sorbonne in Paris, titled “The Man in the Arena.” It was, in many ways, classic Teddy Roosevelt, full of manly vim and vigor, urging citizens of democratic societies to participate in the world of public affairs. One particular passage from the speech has become rather famous as an inspirational call to living a courageous, engaged life:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

Two words from the quoted passage inspired the title of Brené Brown‘s Daring Greatly (2012). As I wrote previously, I’m taking Dr. Brown’s online course, the “Living Brave Semester,” which includes plenty of lessons from that book. She builds much of the course’s early foundation around that passage. However, Brown’s conceptualization of daring greatly draws us away from the kind of boyish, chest-thumping image that characterized Teddy Roosevelt’s public persona. Rather, she associates vulnerability with daring greatly. According to Brown, only by being vulnerable to setback, rejection, disappointment, and failure can we reach these higher places in our work lives, personal lives, and other endeavors.

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Brené Brown’s lessons are resonating with me personally and professionally. In terms of my work, they relate directly to efforts to mainstream human dignity as our core societal value, to promote therapeutic jurisprudence as a primary vehicle for understanding and reforming the law, and to make human dignity the framing concept for workplace law and policy. I believe that in order to advance these interrelated spheres, we must dare greatly — or, to put it in more contemporary, pop culture terms, go big or go home.

It means taking the risks of getting knocked down a bit . . . or perhaps a lot. For example, it’s no fun, as Brown notes, to see one’s work being mocked, twisted, or unfairly criticized online. Calls for more dignity in society are not likely to be greeted with open arms within many circles of our world today; some may even make fun of them. But such responses only underscore the need for change. Even if the world that we want to see is unlikely to become a reality during our lifetimes (regardless of our respective ages), we can be part of what moves things in the right direction.

Coping with workplace bullying, mobbing, and abuse: Letting go of the story (but not completely)

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One of the very, very hardest challenges in dealing with workplace mistreatment is, well, dealing with it. By this I mean not letting it consume us. The fight or flight response ratchets up, and soon the situation rents way too much space in our heads.

Mediator and facilitator Diane Musho Hamilton, writing for the Harvard Business Review, delves into brain science in describing what happens when we feel threatened:

We have two amygdala, one on each side of the brain, behind the eyes and the optical nerves. Dr. Bessel Van Der Kolk, in his book The Body Keeps the Score, calls this the brain’s “smoke detector.” It’s responsible for detecting fear and preparing our body for an emergency response.

When we perceive a threat, the amygdala sounds an alarm, releasing a cascade of chemicals in the body. Stress hormones like adrenaline and cortisol flood our system, immediately preparing us for fight or flight. When this deeply instinctive function takes over, we call it what Daniel Goleman coined in Emotional Intelligence as “amygdala hijack.” In common psychological parlance we say, “We’ve been triggered.”

Given the title of her piece, one might question whether it applies to forms of workplace mistreatment. After all, severe bullying, mobbing, discrimination, and harassment are not varieties of conflict, but rather forms of intentional abuse. However, I suggest that there’s a lot of overlap in terms of the neuroscience and that Hamilton’s descriptions of the triggering response are spot-on.

Her advice on calming your brain in the midst of these experiences will sound familiar to those who do mindfulness practice. One point, however, may be especially hard to process:

Step 2: Let go of the story.

This might be the most difficult part of the practice. We need to completely let go of the thinking and judging mind. This is a very challenging step because when we feel threatened, the mind immediately fills with all kinds of difficult thoughts and stories about what’s happening. But we must be willing to forget the story, just for a minute, because there is a feedback loop between our thoughts and our body. If the negative thoughts persist, so do the stressful hormones. It isn’t that we’re wrong, but we will be more far more clear in our perceptions when the nervous system has relaxed.

Wait a minute, let go of the story?! As a law professor and activist, my knee-jerk response is that it’s all about the story. In fact, just two months ago, I devoted a blog post to the topic of storytelling for social change. And our campaign to enact workplace anti-bullying legislation is built upon the stories of abuse at work shared by people who want stronger legal protections against this form of mistreatment.

But that’s not what Hamilton is talking about, and I know many of you understand that. She’s saying that we have to break the feedback loop of letting the story of injustice, unfairness, and mistreatment rule our emotions in a toxic, 24/7 sort of way, for the sake of our own health if nothing else.

That said, the triggering response can be a powerful one. It has an unfortunate way of focusing our attention and emotional energy with a laser-like intensity. As I’ve written before, targets of workplace bullying have described the experience as a nightmarish “game or battle.” It’s not easy to put that on one’s emotional shelf.

So herein lies a challenge: How do we keep the narratives of workplace injustice alive, without letting them consume us personally? This is one of the most difficult intersections of individual recovery and social change, and for many it is an ongoing work in progress.

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Related posts

Post-traumatic embitterment disorder as a consequence of workplace bullying (2015)

Helping workplace bullying targets get beyond rumination (2015)

Targets of workplace bullying: Getting unstuck (2014)

Dealing with a bad workplace: Getting to tolerance (2014)

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Working Notes: Publications update

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Dear readers, this blog serves as a more informal medium for my commentary on workplace bullying, employee relations, workers’ rights, and the like. As I periodically mention here, most of my in-depth, scholarly writings on these topics are in the form of law review and journal articles.

Fortunately, most of these longer writings are freely accessible via my Social Science Research Network (SSRN) page, where you can read short abstracts of my scholarly articles and download full pdf texts of each. I’m happy to invite you to take a look at them, as I strive to write academic pieces that can be read and understood by those who are not necessarily trained in law. To date I have posted 19 articles to my SSRN page, including:

  • The first U.S. law review article to comprehensively assess the legal and policy implications of workplace bullying (“The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection,” Georgetown Law Journal, 2000);
  • A more recent piece on legal developments concerning workplace bullying that contains the full text of the current template version of the Healthy Workplace Bill and an explanation of its major provisions (“Emerging American Legal Responses to Workplace Bullying,” Temple Political & Civil Rights Law Review, 2013);
  • A theoretical and public policy exploration of how U.S. employment law can better affirm and protect human dignity at work (“Human Dignity and American Employment Law,” University of Richmond Law Review, 2009);
  • One of the first law review articles to examine legal issues relevant to the intern economy, which, in turn, helped to inform eventual litigation challenges to the widespread practice of unpaid internships (“The Employment Law Rights of Student Interns,” Connecticut Law Review, 2002);
  • An article that posits how therapeutic jurisprudence both exemplifies good legal scholarship and inspires a healthier culture of scholarly activity (“Therapeutic Jurisprudence and the Practice of Legal Scholarship,” University of Memphis Law Review, 2010); and,
  • The closest thing I have to an academic and social activist autobiography, a piece exploring how we can use  legal scholarship to inform and inspire law reform initiatives that advance the public interest, drawing heavily on my involvement in the workplace anti-bullying movement and the intern rights movement, as well as interdisciplinary initiatives committed to advancing human dignity (“Intellectual Activism and the Practice of Public Interest Law,” Southern California Review of Law and Social Justice, forthcoming).

To access these articles, it may be necessary to complete a free registration, but there’s a big advantage to doing so. SSRN is one of the world’s largest repositories of research and scholarship, containing over a half million freely downloadable papers and articles, including many on legal and employee relations topics. It’s a searchable treasure trove of scholarly research and commentary.

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