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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Work in progress: A quick look ahead to 2015

I'm not a big holiday decorator -- here's is this year's "tree"

OK, so I’m not a big holiday decorator

Thank you…

…for your continued readership! I look forward to a seventh year of writing blog posts and publishing your comments. For better and for worse, the world of work gives us plenty to talk about. And so it will be in 2015.

When I started this blog in December 2008, I didn’t fully appreciate how it could become such an engaging way to share information, ideas, and opinions. But now, with 1,000+ subscribers, some 580,000+ page views, and several thousand posted comments, I’m grateful that Minding the Workplace can contribute to our conversation on work, workers, and workplaces.

We’ve still got a lot of work to do in order to create and grow workplaces that embrace worker dignity. Here’s to a New Year of progress on those fronts.


Forward on the Healthy Workplace Bill

With the 2015-16 state legislative sessions approaching, our advocates are preparing to resubmit and support the Healthy Workplace Bill in states across the nation. With two states, California and Tennessee, enacting workplace bullying legislation this year (albeit in very watered-down form), and other cities and municipalities approving workplace anti-bullying ordinances for public workers that draw language from our legislation, we’re steadily moving toward the day when more workers will have legal protections against this form of mistreatment. It is proving to be a hard slog at times, with opposition arising as our efforts gain support, but we continue to make progress.


New side gig

During 2015, I’ll be launching a part-time “side gig” initiative that offers coaching, consulting, and programming on workplace bullying, career transitions, and fostering dignity at work, as well as assorted publications covering the same. I’ll also be developing more free content and referral information for those in search of guidance and resources. I’m excited about putting some structure around activities that I’ve provided informally for many years. I’ll be rolling this out gradually, as time and energy permit. These services and materials will be offered on a separate website, with details to come!

At the same time, I’ll be keeping my day (and often evening) job as a law professor, and as a scholar and advocate I’ll remain steadfastly committed to advancing worker dignity. And as I indicated above, I’ll be adding lots of posts to this blog during the year to come and beyond!

Massachusetts Supreme Judicial Court: Cyber-harassment is not protected free speech

In a decision affirming the convictions for criminal harassment of William and Gail Johnson, the Massachusetts Supreme Judicial Court (SJC) ruled that cyber-harassment is not protected free speech under the First Amendment.

Laurel Sweet, reporting for the Boston Herald, summarized the underlying facts of the case:

The case in question involved Andover real estate developers William and Gail Johnson, who were convicted of criminal harassment in 2011 for arranging to have information posted online about neighbors they’d been embroiled in a feud with over land that falsely claimed the victims — married business executives — had property they wanted to sell or give away. The postings included ads on Craigslist advertising golf carts on their yard, free for the taking, as well as the victims’ address and phone number, and an ad seeking to unload their fictitious dead son’s Harley Davidson motorcycle for $300, according to court documents.

…William “Bill” Johnson was additionally convicted of filing a false child-abuse report [against one of the targets].

In Commonwealth v. William P. Johnson, the Court held that “a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets” was not constitutionally protected speech.

Implications for bullying and the workplace

It’s important to clarify that this ruling does not create an independent legal claim — criminal or civil — for online harassment or bullying. Rather, it holds, in essence, that the application of the state’s criminal harassment statute to online harassment does not violate the free speech clause of the U.S. Constitution.

Nevertheless, Laurel Sweet’s lede paragraph may resonate with readers of this blog when she refers to “Internet ‘cyberharassment’ and lies posted online for the purpose of encouraging others to join in the bullying” as a way of capturing the essential facts of the case.

Indeed, the SJC’s decision recognizes that intentional, malicious harassment is a form of wrongful conduct, not “free speech.” In doing so, the ruling implicitly undermines claims that anti-bullying laws are all about political correctness and clamping down on freedom of expression.

Workplace gossip: From intelligence gathering to targeted bullying

Especially in the work context, the definition of gossip can be hard to corral. The online Merriam-Webster dictionary defines gossip as “information about the behavior and personal lives of other people.” In the workplace, however, these shared tidbits can also include details and rumors about salaries, working relationships, and working conditions.

In many instances, this is the stuff of everyday conversations at work. However, the presence of frequent and intense workplace gossip may signal deeper dysfunctions about an organization’s culture. It may manifest itself in offsite social media exchanges. In more severe instances, what might appear to be casual gossip is really part of a targeted campaign of defamation or bullying.

Earlier this month, Sue Shellenbarger of the Wall Street Journal wrote about dealing with gossip at work:

Office gossip can be a welcome distraction. It just can be hard to know what to do when you become the focal point. Overreacting or saying the wrong thing may fan the flames, but ignoring some kinds of gossip can damage your reputation or even career.

The full article (subscription necessary from this link) contains advice on what to do if you are the subject of workplace gossip and includes video and radio clips. (Editor’s note: To access the article online, I Googled “Shellenbarger” and “gossip” and got a clean link.)

Healthier gossip

Shellenbarger aptly notes that gossip can have its beneficial qualities:

Not all gossip is bad. Some workplace talk can help ease stress or frustration over perceived injustices, research shows. . . . Knowing and sharing gossip are ways for employees who lack power to gain informal influence among their peers.

American workplaces, especially, are more likely to be built around a top-down, command-and-control organizational and communications structure. When employers do not provide healthy avenues for exchange and feedback, informal conversations may be the only way to share important information. Sometimes there’s a fine line between gossip and useful intelligence gathering.

In addition, what some employers might label as gossip may actually be, under certain circumstances, forms of legally protected speech, such as sharing concerns about discrimination or sexual harassment, or engaging in discussions about working conditions. Employment discrimination laws, occupational safety and health laws, labor and collective bargaining laws, and assorted whistle blower provisions may be sources of protection for certain types of worker speech.

Gossip as a bullying or mobbing tactic

A graphic accompanying Shellenbarger’s article recommends that when a “rumor is false and threatening your reputation,” confronting the source(s) of the gossip is the appropriate response. On this point, I strongly urge caution and remind us that universal recommended responses may fail to account for critical nuances and can have bad consequences. On balance: Confronting a subordinate is less risky; confronting a peer (or peers) is somewhat riskier; and confronting a supervisor or superior is a very different situation and can be fraught with risk.

If gossip is for the purpose of maliciously trashing someone’s reputation and pushing them out of the workplace, then the situation may be part of a bullying or mobbing campaign. This is a far cry from casual or even reckless rumor mongering. We’re now talking about orchestrated, deliberate behaviors.

Spreading malicious gossip is among the most frequent bullying tactics used, especially by those who demonstrate psychopathic qualities. Calculatedly and without conscience, they plant the seeds in casual conversations and e-mails: Oh, you know what I heard? Guess what so-and-so told me. You can’t share this with anyone, but….


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