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.

Labor Day 2015: Affirming worker dignity

(Image courtesy carlswebgraphics.com)

(Image courtesy carlswebgraphics.com)

Folks, I don’t have any huge epiphanies for this Labor Day 2015. We simply must plow forward to affirm human dignity in our workplaces, and so the task remains before us.

However, I do want to take this opportunity to remind us of the importance of quality labor unions, especially in the lowest-paying vocations. Without the labor movement, the quest for worker dignity has no chance of success.

In my 2009 law review article, “Human Dignity and American Employment Law” (University of Richmond Law Review), I devoted a fair amount of space to discussing the labor movement as a centerpiece for affirming worker dignity. I noted how union membership levels have been in a consistent and sharp decline in the U.S., often prompted by virulent anti-union messaging and intimidation campaigns by employers. I also outlined the benefits of union membership to many workers, including higher wages, better benefits, and safer working conditions.

If you want to understand the bigger framework concerning worker dignity and the law in the U.S., please read the full article (freely downloadable pdf here), which runs under 50 pages. If you want to read only the portions specifically about unions and collective bargaining, you may read pages 532-34 and 556-58.

In writing the article, I made an extra effort to keep it as free of legal jargon and mumbo jumbo as possible. If you do take the time to read the whole thing, I think you’ll find it a worthwhile effort. The piece is now some six years old, but the basic points still ring very true.

What is at-will employment?

The legal rule of at-will employment is the presumptive employment relationship in the United States. It means that an employer can hire or terminate a worker for any reason or no reason at all, so long as that action does not violate existing legal protections. It also means that an employee may leave a job for any reason or no reason at all, again, subject to existing legal protections.

Outside the U.S., at-will employment is not the norm. In many industrialized nations, workers can be terminated only for just cause, which usually means inadequate performance, serious misconduct, or financial exigency. Within the U.S., such protections typically extend only to unionized workers (less than 12 percent of the workforce) and to select categories of employees, such as tenured professors.

At times, at-will employment can inure to the employee’s benefit, especially if someone has unique talents that can be shopped around in the midst of a robust job market. However, more often the employer holds the cards in at-will employment situations, especially when jobs are in short supply.

This is why employers in the U.S., in particular, have been extremely opposed to relinquishing their at-will right to hire and fire. It’s one of the main reasons why they resist labor unions that introduce collective bargaining to the employment relationship.

Here’s a snippet of what I wrote about at-will employment in my 2009 law review article, “Human Dignity and American Employment Law” (University of Richmond Law Review):

The low union density in America means that most workers are not covered by collective bargaining agreements and presumptively are at-will employees. In terms of voice in the workplace, the typical at-will employee enjoys, at best, the ability to make requests of, or submit non-binding suggestions to, an employer. Only the most fortunate individuals, notably those with special skills or in high-demand professional, athletic, or artistic vocations, possess the leverage to engage in individual negotiations over job security, compensation, and working conditions.

Consequently, in most non-union workplaces, the power to set internal employment policies, as well as compensation and benefits, remains largely in the hands of management, but is subject to compliance with regulatory standards. At larger companies, high-level executives establish broad parameters for employment relations, human resources offices administer personnel policies, and mid-level managers supervise and evaluate the work of sub- ordinates. They are supported by in-house lawyers who provide advice, counsel, and litigation support.

Of course, at-will employees are not without labor protections and safeguards. In particular, the 1960s and 1970s witnessed the emergence of a large body of statutory, administrative, and common-law protections granting various employment rights to individuals. The most notable of these are the Civil Rights Act of 1964 and other employment discrimination laws, the Occupational Safety and Health Act, and various wrongful discharge claims grounded in contract and tort law doctrine. The ongoing development of this body of law has resulted in greater safeguards against physical and dignitary harms, created several exceptions to the rule of at-will employment, and forged a modest safety net of wage and benefit protections.

For most American workers, this somewhat unwieldy legal smorgasbord serves as their primary source of legal protections on the job. Although the creation of individual employment protections was spurred in part by civil rights advocacy backed by the solidarity of social movements, workers often must effectuate these rights in solitary fashion, pursuing stressful, lengthy, and expensive legal proceedings, typically without the benefit of large group or union support. Modern employment litigation all too often encompasses the David versus Goliath scenario of an aggrieved worker and a small plaintiffs’ law firm vying against a large company armed with an overstaffed team of attorneys.

***

Related posts

“Master and servant”: The roots of American employment law (2013) — “‘Master and servant’ is a legal term ported over from English common law, centuries ago. It is what it sounds like, a term deeply rooted in hierarchical, subservient personal and occupational relationships.”

At-will employment and the legality of workplace bullying: A brutal combo punch (2011) — “In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless.”

“On Limiting the Abusive Exercise of Employer Power” (2011) — “For legal geeks like me, one of the starting places for understanding the modern state of workers’ rights is a classic 1967 Columbia Law Review article by University of Kansas law professor Lawrence Blades, ‘Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power.’ . . . Although he may not have fully anticipated the growth of the service sector and the non-profit sector and the significance of employment discrimination law, his success is in how he foresaw the expansion of private economic power and shaped the thinking of employment law scholars and other legal stakeholders.”

At age 25, Americans with Disabilities Act offers only limited relief to workplace bullying targets

The Americans with Disabilities Act turns 25 this year. This landmark federal law mandates, among other things, that employees and job applicants cannot be discriminated against because of a recognized disability and that disabled workers must be provided with reasonable accommodations in their places of employment.

In the late 1990s, when I first began researching potential legal protections for targets of workplace bullying, I hoped to discover that the ADA and its state equivalents were providing some relief for those whose work experiences had triggered or exacerbated mental conditions such as depression or various types of stress disorders. However, I soon found that mental health law expert Susan Stefan had examined the application of the ADA to abusive work environments and found that litigants were “losing their ADA cases because stress and abuse are seen as simply intrinsic to employment, as invisible and inseparable to conditions of employment as sexual harassment was twenty years ago.”

I included Stefan’s findings in my 2000 law article, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection” (Georgetown Law Journal, 2000), the first law review article to comprehensively examine the legal and policy implications of workplace bullying under American employment law. That article planted the seeds for my drafting the anti-bullying Healthy Workplace Bill.

Since then, the ADA has undergone some changes, including a major package of amendments in 2008 and a set of disability law regulations issued by the Equal Employment Opportunity Commission. These developments were widely understood to strengthen protections for disabled workers.

However, the ADA and similar laws at the state level remain rather elusive legal tools for those whose mental disabilities are connected to workplace bullying. Simply put, although workplace bullying is among the most frequent forms of interpersonal abuse on the job, there has been no apparent groundswell of bullying-related disability discrimination claims. Although such claims may not be easy to bring successfully even under the recent changes to the ADA, I believe this approach remains underutilized by employment lawyers seeking to help bullied workers.

In any event, the limitations of disability discrimination protections further underscore the need for comprehensive workplace anti-bullying laws, and that’s yet another reason why I continue to advocate for passage of the Healthy Workplace Bill.

One separate but related public benefit is relevant here, and that is Social Security Disability. Although hard numbers are unavailable, more than a few severely bullied workers have obtained SSD benefits because they have been unable to return to work. Securing these benefits is not easy. It is not uncommon for initial applications to be rejected, necessitating an appeals process. However, many appeals are successful — perseverance definitely counts in this context — so rejected applicants should not take an initial denial of benefits as the last word on the matter.

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.

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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.

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