Workplace bullying, psychological trauma, and the challenge of storytelling

(image courtesy of freepik.com)

(image courtesy of freepik.com)

Why is it that some targets of severe workplace bullying and mobbing have difficulty telling or jotting down their stories in a straightforward, chronological manner? And why do they often launch into what sounds like a War and Peace version of their story, when all that’s needed (for now) is the quick elevator speech?

It can make for a long, rambling account, laden with emotion.

We should not blame this on the target. Work abuse situations are often complex and hard to summarize. Equally significant, the effects of psychological trauma may have a lot to do with the “word salad” narrative.

I’m currently preparing a couple of short talks on how emerging insights from neuroscience inform our understanding of workplace bullying and mobbing, along with accompanying challenges that may confront targets who are trying to harness legal protections or secure employee benefits such as workers’ compensation.

In The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (2014) (which I praised here), pioneering trauma expert Dr. Bessel van der Kolk explains the latest research on how traumatic experiences may impact the brain, including sharp cognitive impairments that undermine an individual’s ability to present information in an ordered manner. Put simply, an individual dealing with psychological trauma may be able to share emotions and impressions about the experience, while being unable to tell the essential story behind it.

I have been interacting with targets of severe workplace bullying and mobbing behaviors for some 18 years. I have witnessed, over and again, how some individuals encounter great difficulty explaining specific timelines and events. Many of them tell me that they are experiencing symptoms consistent with Post Traumatic Stress Disorder.

The effects of psychological trauma relate directly to legal advocacy supporting targets of bullying, mobbing, and harassment. Effective legal advocacy is built around a story of what happened. Where legal representation is involved, the process of developing this story starts from the very first meeting between attorney and client. What happens when the experience of psychological trauma makes it difficult for a lawyer and client to build a coherent understanding of a prospective legal case or claim for benefits? How can an individual’s wrought emotional state make it difficult to put together a basic chronology and description of events related to a legal dispute and the resulting harm, including pain & suffering and emotional distress?

I now understand how insights from neuroscience help to explain why some individuals face such difficulties in providing coherent narratives of their abusive work experiences. My forthcoming presentations will present my initial ideas for further research and writing on this topic.

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Related post

Stories can drive change, but workplace bullying stories often defy quick summaries (2016)

Challenges posed by the gig economy are hardly new

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The Fall issue of Yes! magazine devotes a collection of articles to the so-called “gig economy”:

Four out of 10 Americans work outside of the traditional 9-to-5, a rate that is growing fast. For workers, this “gig” work can feel both empowering and precarious. This issue looks at how we can bring out the best of the gig economy, but also protect workers. From cooperatives and online communities to “portable” work benefits, we can make the gig economy work for us.

You’ll find a few pieces from the issue posted online, but for the complete package you’ll want to obtain a hard copy. Yes! prides itself on addressing economic, social, and human rights issues with a solution-oriented journalistic approach, and you’ll find that theme running throughout its examination of the work world of freelancers and independent contractors. It’s worth picking up if this topic interests you.

The gig economy aka the contingent workforce

Although the trendy term gig economy is of more recent vintage, the challenges facing those engaged in contractor, part-time, and short-time work have been with us for some time. For several decades, this group of workers has been referred to as the “contingent workforce.”

In 1994, a blue-ribbon federal commission, the Dunlop Commission on the Future of Worker-Management Relations, released a much anticipated report that examined, among other things, how workers in the contingent workforce fared under existing employment statutes. Among the report’s key findings was that the legally defined line between “employee” versus “independent contractor” played a significant role in determining who is covered by federal employment laws, such as anti-discrimination and minimum wage protections. Those determined to be contractors usually fell outside the reach of these protective laws.

The contingent workforce has been the subject of much attention since then. For example, back in 1997, pioneering workers’ rights attorney and Lewis Maltby and I co-authored a law review article, “Beyond ‘Economic Realities’: The Case for Amending Federal Employment Discrimination Laws to Include Independent Contractors” (Boston College Law Review). The piece continues to be cited in scholarly articles today.

Closer to the trenches, the Freelancers Union provides policy advocacy, continuing education, and services in support of independent workers.

I would add the whole realm of internships and unpaid interns to this discussion as well.

In sum, whether we’re calling it the gig economy or the contingent workforce, the challenges of providing good work with decent pay and benefits to those whose work arrangements do not fit within the 9-to-5 standard (to the extent that it’s a standard at all) remain. It’s something to keep on our radar screens as we head into this Labor Day weekend.

“The right to be let alone”

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In 1890, the Harvard Law Review published a seminal article by attorneys Samuel Warren and Louis Brandeis — “The Right to Privacy” — asserting that American law must recognize a right to privacy grounded in tort (personal injury) law. Paying primary attention to the growing ability of the press and modern communications technologies to delve into and make public the personal lives of private citizens, they reasoned that invasions of privacy now subjected individuals to “mental pain and distress, far greater than could be inflicted by mere bodily injury.” Accordingly, “(t)houghts, emotions, and sensations demanded legal recognition,” which should be in the form of “the right to be let alone.”

The right to be let alone. In 1890, attorneys Warren and Brandeis weren’t thinking about the workplace when they invoked that phrase. However, their words capture a big piece of what should constitute the experience of work. This includes freedom from disabling bullying and mobbing.

While we’ve seen strides in the evolution of privacy laws since the publication of “The Right of Privacy,” countless numbers of workers who are subjected to severe bullying at work do not enjoy a right to be let alone. This is among the many reasons why I will continue to engage in public education work concerning the need for the anti-bullying Healthy Workplace Bill and similar legal protections.

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This post was adapted from my 2009 law review article, “Human Dignity and American Employment Law” (University of Richmond Law Review).

Coming in 2017: An organization to advance therapeutic jurisprudence

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Regular readers of this blog may know that I am associated with therapeutic jurisprudence (TJ), a school of legal philosophy and practice that “concentrates on the law’s impact on emotional life and psychological well-being.” For some 25 years, TJ adherents have been creating a global network of scholars, practitioners, judges, and students. My own attraction to TJ arose out of my work on workplace bullying and my broader commitment to creating systems of employment law that embrace human dignity. TJ, I realized, was a natural match for those interests.

In fact, I am something of a full-on convert. I now believe that our legal system must, as a primary objective, embrace psychologically healthy outcomes in legal proceedings and transactions, while honoring other important political and economic concerns and core notions of rights and responsibilities.

Accordingly, I am working closely with a group of TJ-affiliated professors, judges, and lawyers to create an international, non-profit membership society that will build the therapeutic jurisprudence community and expand TJ’s scope and influence. We are looking at a 2017 organizational launch. Here’s a passage from a piece describing this effort that we just posted to the Therapeutic Jurisprudence in the Mainstream blog:

For over a quarter of a century, the growing therapeutic jurisprudence movement has existed as an informal, multidisciplinary community of scholars, practitioners, judges, and students. We are now ready to take things to the next level.

Plans are underway to create a new, international, learned society dedicated to TJ. This non-profit organization will consolidate many existing TJ activities, support new TJ initiatives and programs, and serve as a virtual gathering place for those interested in advancing TJ as an important school of legal philosophy and practice.

The new TJ society will be a lean operation, built on modest membership fees and a simple organizational structure, with its eyes trained on facilitating and supporting good works rather than getting overly caught up in internal machinations.

Many details have yet to be settled, and many individuals have yet to be contacted. However, the TJ society will hold its opening event at the July 2017 Congress of the International Academy of Law and Mental Health, to be held in Prague. This will include a substantial, participatory roundtable discussion about initial plans for the organization, followed by a luncheon for those who would like to commemorate this very promising new venture.

This is a very exciting development, and during the coming months I will be sharing occasional updates about this initiative.

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Related posts

Here are three previous blog posts about therapeutic jurisprudence:

Can a quirky band of law professors, lawyers, and judges transform the law and legal profession? (2015)

A view from Vienna: New wine and new bottles for the practice and substance of law (2015)

Visioning law and legal systems through a psychologically healthy lens (2014)

Law review articles

I’ve written several law review articles that incorporate insights from TJ, and you may freely download pdf copies by clicking the links:

Intellectual Activism and the Practice of Public Interest LawSouthern California Review of Law and Social Justice (2016)

Therapeutic Jurisprudence and the Practice of Legal Scholarship – University of Memphis Law Review (2010)

Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the Workplace — Florida Coastal Law Review (2010)

Human Dignity and American Employment Law – University of Richmond Law Review (2009)

The future of the Healthy Workplace Bill in Massachusetts

Massachusetts State House: We'll be back (photo: DY)

Massachusetts State House: We’ll be back (photo: DY)

The end of the formal 2015-16 legislative session in Massachusetts left the anti-bullying Healthy Workplace Bill (House No. 1771) languishing at a procedural stage known as Third Reading, meaning it was eligible to be brought before the full House of Representatives for a floor vote. Moving to this significant next step, however, required the approval of House leadership, and they opted not to do so.

It wasn’t just us; many bills advance to Third Reading and stay there. Nevertheless, it was a somewhat frustrating conclusion to a session that saw the HWB move to Third Reading about a year ago, reflecting the considerable amount of support that had been generated for it within the State House.

As I’ve reported on this blog (here, here, and here), we made valiant efforts to make our case for advancing the HWB during the final months of the session. With 58 legislative sponsors and co-sponsors, and a growing number of citizen advocates reaching out to their Representatives and Senators urging their support, we thought we had a chance.

But such are the realities of legislative advocacy. It can be a long, hard slog, requiring what I call a sort of restless patience. On that point, here’s a lesson in perseverance: The legislature did pass a strong fair pay law that will help to reduce gender inequities in compensation. It is being heralded as one of the strongest equal pay laws in the nation. As reported in the Boston Globe, the origins of this legislation date back to 1998. 

I believe that we will see the Healthy Workplace Bill become law sooner than later. This was our third full session in the Massachusetts legislature, and we had a good run. We will be making plans this fall for stepped-up advocacy efforts during the 2017-18 session. We’re not going away, and we will succeed.

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Finally, I would be remiss if I did not acknowledge, with our profound thanks, the retirement of our stalwart lead sponsor in the House, Representative Ellen Story (D-Amherst). This smart, principled, and caring legislator has long served her district and the citizens of Massachusetts with great humanity and distinction. Ellen has been with us on this cause longer than anyone else in the State House, and when the Healthy Workplace Bill becomes law, I hope she’ll be there to celebrate with us and to share well-deserved credit for that success.

Rep. Ellen Story (photo: ellenstoryma.com)

Rep. Ellen Story (photo: ellenstoryma.com)

 

Published: “The Legal and Social Movement Against Unpaid Internships”

northeastern.internships

The Northeastern University Law Journal has published my law review article, “The Legal and Social Movement Against Unpaid Internships.” It offers a comprehensive overview and assessment of major legal, policy, and advocacy developments concerning unpaid internships during the past six years, including the signature Glatt v. Fox Searchlight Pictures, Inc., lawsuit for back wages in unpaid internships, which culminated in a recent decision by the U.S. Courts of Appeals for the Second Circuit.

I posted the original version of this article some three years ago. However, by mutual agreement with the journal’s editors, we postponed a final version and publication to cover developments in the Glatt litigation. Here is the updated abstract:

Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.

This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.

In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.

This article grew out of my presentation at the March 2013 Northeastern University Law Journal symposium on employee misclassification. By mutual agreement with the journal editors, we postponed publication of the article to allow for further resolution of the Glatt litigation.

I believe this constitutes the most comprehensive, informed examination of recent developments on this topic in the current law review literature. You may freely download a pdf copy from my Social Science Research Network page.

Published: “Intellectual Activism and the Practice of Public Interest Law”

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I’m pleased to report that the Southern California Review of Law and Social Justice has published my law review article, “Intellectual Activism and the Practice of Public Interest Law.” It’s probably the closest thing to an academic autobiography that I’ll ever write, in that it recounts experiences and draws lessons from the work I’ve been doing during the past fifteen years, including workplace bullying, unpaid internships, and workplace dignity in general.

Here’s the posted abstract from my Social Science Research Network (SSRN) page:

Intellectual activism is both a philosophy and a practice for engaging in scholarship relevant to real-world problems and challenges, putting its prescriptions into action, and learning from the process and results of implementation. In the legal context, intellectual activism involves conducting and publishing original research and analysis and then applying that work to the tasks of reforming and improving the law, legal systems, and the legal profession. This article explores the concept and practice of intellectual activism for the benefit of interested law professors, lawyers, and law students.

This is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) fostering the enactment of workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) participating in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in multidisciplinary networks and institutions that have nurtured my work, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists. This article closes with an Appendix containing a short annotated bibliography of books that are broadly relevant to the topics discussed in the text.

I wrote the article for those who want to use research and analysis to inform and inspire positive social change work, with a special nod to those who work largely outside of the realm of highly elite educational and public policy institutions.

You may obtain a freely downloadable pdf copy of the article from my SSRN page.

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