Disgruntled, tenured, and silent in the academic workplace

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As some readers are quite aware, these are trying times at many universities, private and public alike. Finances are precarious, budgets are tight, and cutbacks are often the norm. At some schools, board members and senior administrators have turned into micro-managers. Highly paid senior administrators are proliferating at many universities, even as full-time faculty and staff are being laid off. Many will hire pricey consultants to help them do the work that they are not competent to do themselves, despite their hefty paychecks.

Instead of best practices winning the day, some of the worst excesses of private, non-profit, and public sector management seem to be festering in all too many institutions of higher learning.

In response, the voices of accountability, or at least those of the devil’s advocate, should be the tenured faculty. As I wrote in one of this blog’s most popular posts, tenured faculty typically have gone through a rigorous review process spanning many years, resulting in job protections much greater than those of the average worker. This includes the right and privilege of academic freedom, which is among the qualities that make colleges and universities different from many other workplaces.

In fact, the term “faculty governance,” a supposed bulwark of higher education culture and practice, relates directly to the exercise of academic freedom. It anticipates an active role for faculty in determining the future of an institution, and this may include questioning, probing, and criticizing proposed and adopted policies within the university.

But there’s a kind of hush…

All too often, however, certain tenured faculty remain silent. They may deeply object to what is transpiring around them, out of principle and/or self-interest. They also may enjoy additional institutional privileges, sometimes by dint of accomplishments, other times because of connections, and on occasion due to demographic status. If they would only speak up, they could make a difference.

But rather than jeopardize their privileges, they have nothing to say.

While others are questioning unwise and/or unfair practices and policies, they are nowhere to be heard. Oh, they may grouse in private, perhaps vehemently so. Maybe they’ll send a (private) e-mail of support to one of the “dissenters,” “rabble-rousers,” or “bomb throwers,” but when it comes to publicly aligning themselves with those who are sticking out their necks (sometimes on their behalf!), they stay mute.

If letters of protest are circulated, they may consider signing, but not until confirming that many others have signed on ahead of them. If a resolution criticizing a bad administrative move is being considered at a faculty meeting, they’ll wait a half second to see how others vote before raising their hand. If a close colleague or co-worker faces retaliation or termination and approaches them for help, they may express sympathy, while adding it’s a shame that there’s nothing they can say or do.

They obviously had the intellectual chops to get tenure, but in the aftermath of obtaining that brass ring, they’ve decided that it’s wiser to conduct themselves on a risk-free basis. If there are battles to be fought, let others step up to the challenge.

Over the years I have talked to faculty at many different universities about this dynamic. It is not uncommon, especially at more dysfunctional institutions.

The perks of silence

The disgruntled, tenured, and silent will stay in their offices, with fingers crossed that no one comes for them, while continuing to collect and enjoy the perks of silence.

The least admirable of these folks will kiss up to the very people whose actions they so (privately) criticize.

This is, of course, their right. Tenure does not oblige one to exercise the freedom of expression bestowed by that status. Nor does it prohibit anyone from stroking the egos of those they silently oppose. After all, why risk retaliation and sacrifice one’s privileges — earned or not — when others are willing to do so?

“Askhole” behavior in non-profits: An insightful and entertaining Vu

In a marvelously insightful and entertaining piece published on his Nonprofit With Balls blog, executive director Vu Le calls out non-profit leaders and organizations who are constantly asking their employees and other stakeholders for feedback and ideas, only to reject or ignore their suggestions over and again. He uses the term “askhole” to capture this behavior, and many who have experienced work life in this sector will find themselves chuckling in agreement.

Le begins by illustrating askhole behavior in an everyday social context. It’s hilarious:

Basically, you know that one friend who keeps coming crying to you about something, asks you for advice, and so you hit pause on Netflix, listen to them attentively, empathize, and give them reasonable suggestions, and then later you find out that they completely ignored you or did the opposite of what you recommended? That’s an askhole. Or someone who keeps asking for advice until they get an answer they agree with. That’s also an askhole.

Although Le is especially critical of the askhole dynamic confronting communities of color, it may apply in virtually any non-profit context. In essence, askhole behavior in the non-profit world promotes false hopes and leads to jaded attitudes, especially when it occurs repeatedly. In a line that jumped out at me, Le says, “We’ve been giving the same answers for, like, forever.”

Le does not merely curse the darkness. In his article, he offers good advice on how non-profits can avoid askhole behavior, such as “before launching some listening forum, check around to see what work has already been done,” and “if you insist on doing a listening process, get your org or foundation mentally ready and committed to trust the community’s feedback and act on it.”

So here’s the question for you non-profit dwellers: How many town meetings, “open door policies,” online surveys (helloooo, Survey Monkey!), strategic planning discussions, and coffee hours have you been invited to by senior administrators and perhaps board members? Of these, how many times have your concerns or suggestions been seriously considered, much less acted upon in an inclusive way?

Your answers will go a long way toward determining whether you have a healthy or dysfunctional organizational culture. They also will correlate strongly to the overall morale of rank-and-file stakeholders within your organization.

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Hat tip to Kayhan Irani for the Vu Le article!

Related posts

Myths and realities about working in the non-profit sector (2014)

One-way feedback: In-house employee surveys and the illusion of open decision making (2012)

“Strategic planning”: All too often, a time-sucking bridge to nowhere (2011)

Recycling: Five years of February

Each month I’m reaching into the archives to highlight a piece from that month for each of the past five years. Especially for those of you who missed them the first time around, I hope they provide interesting and useful reading. For each post I’m including a short excerpt; you may click on the title for the full article.

February 2014: “I want to help stop workplace bullying” — “Periodically I get e-mails and voice mails from people who would like to get involved in addressing bullying at work. More often than not, they have experienced or witnessed workplace bullying firsthand, and now they’d like to do something on a broader scale to prevent bullying and help others who have been targeted. Here are my thoughts on this topic . . .”

February 2013: On creating organizational culture: What if your boss simply doesn’t care? — “We talk about good leaders who strive to create healthy organizational cultures, the places where people want to work. We talk about bad leaders who crack the whip, bully, and treat others as expendable parts. But what about bosses who don’t think much at all about the quality of work life within their organizations? What if notions such as supportive work environments, fair compensation structures, and organizational justice don’t cross their radar screens? What if all that matters to them are profits/revenues, avoiding liability, pleasing their boards & superiors, and getting ahead?”

February 2012: Recipe for healthy employee relations: Encourage speech, nurture civility, and prohibit abuse — “Organizations can, if they wish, clamp down on employee speech, encourage cutthroat competition, and bully workers relentlessly. Much of this will be legal, given the weaknesses of worker protections beyond employment discrimination laws. Of course, most of us know that such practices are a recipe for disaster, or at least guarantee an underperforming, low-morale workplace. With that in mind, let’s set out a few basic parameters for something better . . .”

February 2011: School bullying and workplace bullying: More alike than different? — “Beyond our families, our first encounters with others in a structured setting come via school. Is it not surprising that bullying behaviors modeled and validated in school settings reappear and evolve devolve in the workplace? More stuff to ponder here.”

February 2010: The University of Alabama-Huntsville shootings and the academic workplace — “I usually hesitate to use this blog to provide instantaneous analyses of developing news stories, but already it is clear that Friday’s terrible shootings at the University of Alabama-Huntsville will carry broader implications for academic workplaces. Three professors were killed, and two other professors and one staff member were injured during an incident that took place at a faculty meeting. In custody is Amy Bishop, an assistant professor in UAH’s biology department. Earlier that day, Bishop learned she had lost an appeal of her tenure denial. As soon as that piece of information was reported, the story behind this tragedy started to sharpen quickly.”

How to clamp down on worker dissent

If you’re a senior executive or manager and want to make sure that your workers don’t get too uppity, you might achieve your goal by being a tyrant and by encouraging your lieutenants to be the same way. Surely management-by-intimidation works, right?

Well, maybe, for a short while. At the same time, it surely will give rise to claims that you’re a jerk and maybe even a bully. And given a chance, your employees will leave for (hopefully) greener pastures.

A “better” approach

Fortunately, there’s another, more effective way to clamp down on worker dissent and possibly not have to answer for it. The trick is to do it with a smile, albeit an insincere one, and then take some action steps such as these:

  • Create a workplace culture that values superficial politeness over honest work relationships. Make sure that superficial atmosphere — what psychologists Linda Hartling and Elizabeth Sparks call a “pseudo-relational” organizational culture — sweeps employee concerns or differences of opinion under the rug. 
  • Insert a civility rule into your employee handbook that ensures, say, when a young staff assistant complains angrily about management inaction on her sexual harassment allegation, you can nail her for acting inappropriately, “in violation of our employee policies.” By turning targets of mistreatment into transgressors, you can get rid of pesky complainers.
  • Keep using the word “transparency” over and again, even as you become less transparent.
  • Favor and reward a group of loyalists who will act as surrogate defenders to slap down any criticism on your behalf. 
  • Bully and expel a dissenter or two to send a message to everyone else that they’d better not question the organizational line.

But hold on! At some point, this approach doesn’t work either. Once your employees figure out the passive-aggressive culture of your workplace, they’ll take a hike when other options open up.

Instead, try this…

Of course, the best way to reduce worker dissent is to keep an open door and an open mind to employee concerns. An energetically healthy workplace is not necessarily free of disagreement or conflict, but rather one that handles such matters honestly, transparently, and respectfully, whenever possible.

By creating an organizational culture of genuine openness, mutual accountability, fair expectations, dignified treatment, and maybe even some kindness and humor to go with it, you’ll reap the benefits and feel good about what you’re doing.

If more employers understood these basic “soft skills” of good management, then (1) our workplaces would be more productive; (2) workers at every level would be happier and healthier; and (3) the number of work-related grievances and lawsuits would shrink markedly.

It seems so easy, right?

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As long-time readers may recognize, I’ve been using this blog as sort of a work-in-progress to sift through, relate, mix, and match assorted information, research, and insights. I’ve drawn upon a good dozen or so previous posts to crystallize ideas for this one. Thank you for your continued readership!

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Workplace gossip: From intelligence gathering to targeted bullying

(Image courtesy of clipart panda.com)

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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One-way feedback: In-house employee surveys and the illusion of open decision making

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(image courtesy clipart-library.com)

A recent conversation at a conference confirmed my suspicions: More organizations are using online, “anonymous” surveys to get feedback from their employees. This practice appears to be especially common during strategic planning or organizational assessment stages.

Typically, an employee will get an e-mail in her inbox, inviting her to complete an online survey, often using programs such as SurveyMonkey. Topics vary widely, but usually they cover some aspect(s) of employment relations or management decision making.

Multiple choice, yes-no, agree-disagree questions will predominate, sometimes exclusively, thus sharply limiting the range of feedback.

The catch (or, catches)

So the employee may be thinking, great, they want my opinion! I’m fortunate to be working at a place that welcomes what I have to say!

But hold on. Frequently these surveys are done with an underlying agenda, usually one that seeks validation for an already favored course of action. (A telltale sign is when obvious choices or answers are not provided as response options, or when the survey is framed to exclude entire points of view.)

Call me a cynic, but here’s the usual situation:

1. The raw survey data are not shared with those who participated. Instead, a sanitized summary may be prepared and released.

2. If the survey results favor the desired outcome, they likely will be trumpeted to the high heavens.

3. If the results are ambiguous, you may not hear anything more, or those in charge will say the feedback was inconclusive and requires more thought.

4. If the results run squarely counter to the desired outcome, it’s possible that you’ll never hear another word about the survey, or reasons will be generated to disregard it (e.g., “it’s just a snapshot,” “too few respondents,” “we really shouldn’t be swayed against our better judgment”).

If organizations want genuine exchanges about planning, actions, and evaluations, they should consider making these survey results completely available, edited only for information that is defamatory or confidential — or at least guarantee that the individual tallies will be released regardless of how they come out.

Recipe for healthy employee relations: Encourage speech, nurture civility, and prohibit abuse

Okay, I’m thinking out loud here, but I’ve been pondering the lines between promoting positive organizational cultures and drawing clear distinctions on when certain abusive behaviors call for sanctions.

In the U.S., the omnipresence of at-will employment — the right to hire and fire for any reason or no reason at all — and the low density of labor union membership means that most employers enjoy wide latitude to develop and implement employee relations policies and practices.

Organizations can, if they wish, clamp down on employee speech, encourage cutthroat competition, and bully workers relentlessly. Much of this will be legal, given the weaknesses of worker protections beyond employment discrimination laws.

Of course, most of us know that such practices are a recipe for disaster, or at least guarantee an underperforming, low-morale workplace. With that in mind, let’s set out a few basic parameters for something better:

1. Encourage speech — The late Peter Drucker, management guru extraordinaire, nailed it in his book Managing for the Future (1992), where he extolled the virtues of employee input and participation in problem solving. Drucker urged that “partnership with the responsible worker is the only way” to succeed in today’s knowledge and service economy.

Worker silence is a sign that many have withdrawn emotionally from the broader enterprise and are doing what they have to do to survive. An organization that encourages a robust, honest exchange of ideas and feedback is much better off than one that sends the opposite signal.

But be forewarned: Once someone is punished for stating her opinion or offering constructive criticism, trust can easily disintegrate. This has to be a “walk the talk” commitment if it is to flourish.

2. Nurture civility — Civility, fairness, and genuine inclusion should be practiced by management rather than preached. It’s all about creating a culture based on actual, observable practice and conduct.

However, imposing company civility or speech codes is problematic. The give and take of ordinary human interactions needs to make room for occasional sharp exchanges and flaring of tempers. When conduct gets out of hand, someone should step in (see below), but an everyday dust up should not be punished. In fact, it may be the canary in the coal mine that signals a deeper problem worth addressing. Take, for example, a victim of sexual harassment who is written up for violating a civility code because she is angry about organizational indifference to her reports of mistreatment.

3. Prohibit abuse — When speech becomes abusive, intervention is necessary. Bullying, harassment, and intimidation should be prohibited. Some aggressors can be coached or counseled; others should be disciplined or terminated. Targets of their behavior should be safeguarded and protected from retaliation for reporting the mistreatment.

This is an ultimate test of organizational ethics, especially if an aggressor happens to be a senior person. Strewn around too many workplaces are a lot of lumpy rugs, with very ugly, destructive behaviors swept under them.

Does federal labor law allow you to criticize your boss on Facebook?

Let’s suppose you go to Facebook and start posting critical comments about your boss. If he finds out, does federal labor law protect you from being fired or disciplined?

Answer: Maybe.

Sorry folks, but the lawyer in me resists, with good reason, a yes or no answer. Here’s why:

National Labor Relations Act

The National Labor Relations Act (NLRA), the main federal law governing labor unions, collective bargaining, and collective worker action, makes it an unfair labor practice to retaliate against employees who “engage in…concerted activities for the purpose of…mutual aid or protection.” Typically this provision of the law is invoked when, say, workers are attempting to form a union or banding together to address issues of pay and working conditions.

The emergence of social media sites such as Facebook has led the National Labor Relations Board (NLRB), the federal agency charged with enforcing and interpreting federal labor law, to address whether workers’ online communications about their bosses and working conditions are protected forms of concerted activity.

NLRB’s Facebook and other social media cases

Last year, the NLRB’s acting general counsel, Lafe Solomon, collected 14 relevant decisions issued by the agency’s Division of Advice and summarized them in a detailed memorandum. Here is the NLRB’s summary of that memo:

In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected.

In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page.

In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

You can access the full memorandum here.

Key questions

In essence, there are three important questions to ask in determining whether employee activities will be protected under this provision of the NLRA:

1. Was the activity truly concerted within the meaning of the NLRA? Activity not intended to enlist the support or participation of co-workers likely falls outside of the reach of the law.

2. Was the activity for mutual aid or benefit? Talk about wages and working conditions very likely meets this standard, while gossiping about a supervisor’s personal life probably does not.

3. Was the activity of a protected nature? Constructive criticism of wages and working conditions is probably protected, whereas filling up a website with vile epithets about a boss is not.

Many workers are not protected by the NLRA

In addition, it is vital to note that many workers are not covered by the NLRA.  Expressly excluded from coverage are supervisors, independent contractors, domestic and agricultural workers, and family member employees. In addition, the U.S. Supreme Court has held that managerial and confidential employees are excluded as well.

All told, some 40 percent or more of the American workforce is not protected by the NLRA, including the concerted activities provision cited above.

So, for example, if you’re a mid-level manager at a local retail store who reads this and thinks, “hey, I’ll go on Facebook and complain about the CEO,” there’s a good chance you’re not covered by the NLRA.

Possible protections for anti-bullying advocates, but ask a labor lawyer first

Based on this assessment, the NLRA may provide legal protections for workers who are raising concerns with co-workers about bullying behaviors, including exchanges on sites such as Facebook. However, this assumes the activities are truly “concerted” within the meaning of the law and that the workers are not exempt from the protections of the National Labor Relations Act.

In any event, I strongly urge workers considering federal labor law as a source of legal protection to seek the advice of a qualified labor lawyer, rather than blithely making the assumption that they are covered.

In summary

If you surf the Internet for articles about the NLRB’s social media decisions, you’ll read headlines suggesting that you now have a blanket right to criticize or complain about your boss on Facebook. I hope this article has alerted you to the hazards of making that assumption.

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Obligatory but important disclaimer: This post is not intended as legal advice, and it is provided for informational purposes only. There are serious potential pitfalls for employees and employers alike in dealing with this body of labor law, and a summary of a few hundred words cannot replace legal advice tailored to a specific situation.

If you are in a situation that raises issues under federal labor law, consult a labor law attorney for an assessment of your rights and responsibilities.

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Longer commentaries

The National Labor Relations Act and workplace bullying

I explored the potential application of the National Labor Relations Act to bullying situations in my first law review on workplace bullying and American employment law, David C. Yamada, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection,” 88 Georgetown Law Journal 475 (2000), at pages 517-521. The entire article can be downloaded without charge, here.

Employee free speech rights

For those who want to learn more about employee free speech rights in the private sector, this slightly dated but still informative law review article may be of interest: David C. Yamada, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace,” 19 Berkeley Journal of Employment and Labor Law 1 (1998), which can be downloaded without charge, here.

At-will employment and the legality of workplace bullying: A brutal combo punch

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.

In October I wrote a short post criticizing the rule of at-will employment, which allows an employer to terminate an employee for any reason or no reason at all. In America — in contrast to many other nations — at-will is the presumptive employment relationship.

This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

Hollomon v. Keadle

When I first started researching potential legal protections against workplace bullying, I assumed that a tort claim called intentional infliction of emotional distress (IIED) would provide severely abused workers with sufficient redress.

I was in for a big surprise: Most bullying-type lawsuits that allege IIED are unsuccessful, with courts routinely dismissing claims even before they get to trial, mostly on grounds that the offending behavior was not sufficiently outrageous. (Furthermore, in many states, IIED claims against employers are precluded by workers’ compensation laws.)

My “poster case” for this reasoning came in Hollomon v. Keadle, a 1996 Arkansas Supreme Court decisions that involved a female employee, Hollomon, who worked for a male physician, Keadle, for two years before she voluntarily left the job.

Hollomon claimed that during this period of employment, “Keadle repeatedly cursed her and referred to her with offensive terms, such as ‘white nigger,’ ‘slut,’ ‘whore,’ and ‘the ignorance of Glenwood, Arkansas’.” Keadle repeatedly used profanity in front of his employees and patients, and he frequently remarked that women working outside the home were “whores and prostitutes.”

According to Hollomon, Keadle “told her that he had connections with the mob” and mentioned “that he carried a gun,” allegedly to “intimidate her and to suggest that he would have her killed if she quit or caused trouble.” Hollomon claimed that as a result of this conduct, she suffered from “stomach problems, loss of sleep, loss of self-esteem, anxiety attacks, and embarrassment.”

The Arkansas Supreme Court ruled that even if every one of Hollomon’s allegations were true, Keadle’s behaviors were not sufficiently outrageous to allow the case to proceed to trial.

Hypothetically speaking

You may be thinking, what about self-help measures? What if Hollomon had stood up to this guy and basically told him off, perhaps right there in the waiting room where he routinely humiliated her in front of patients? What if she would’ve told him, you pompous, threatening jerk, how can you treat me like this in front of your own patients? Have you no decency?

Had this occurred, the rule of at-will employment would’ve permitted Keadle to fire Hollomon immediately, on the spot, while adding a few more choice words on his own.

No free speech rights

But then you might ask, doesn’t Hollomon have a right of free speech under the First Amendment? Doesn’t she have a right to dish it right back to Keadle?

In a nutshell, no. Constitutional free-speech protections do not apply to private-sector employees. (They also are very limited for public-sector workers.) While it’s possible that anti-retaliation provisions of other laws might protect certain types of whistle blowing and reporting activities, there are no obvious possibilities under this scenario.

Indeed, had this been a larger medical practice with an HR office, the at-will rule would’ve permitted the firing of Hollomon merely for filing a complaint about Keadle. The only remotely viable avenue that I can see for Hollomon in approaching HR, looking at it from a 2011 rather than 1996 lens, is taking some of Doc Keadle’s abusive language and trying to fashion it into a sexual harassment complaint. But that could be a stretch.

Yes, there’s more

Let’s take this scenario one more step. Suppose that after being terminated following her hypothetical outburst in the waiting room, Hollomon applied for unemployment benefits.

Unfortunately, it’s possible the employer could successfully oppose her claim on grounds she was fired for misconduct. You see, misconduct is one of the standard reasons why unemployment benefits can be denied. While state courts and agencies vary widely in what they define as misconduct, in some states this may be sufficient to deny her application.

One-way boxing match

Talk about a one-two punch: The combination of at-will employment and the general legality of workplace bullying means that an employee being subjected to targeted, ongoing psychological abuse at the hands of a supervisor often has little, if any, legal protection to stand upon.

It’s cases like Hollomon v. Keadle that prompted me to draft the Healthy Workplace Bill, which provides severely bullied workers with a claim for damages, creates legal incentives for employers to minimize potential liability, and protects those who report workplace bullying from retaliation. After all, one-way boxing matches are monstrously cruel, even if they are “just” a battle of words.

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For more about the Healthy Workplace Bill, please go here.

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For serious study

If you really want to study the relevant inadequacies of current American employment law, several of my law review articles will either keep you up all night or help you get to sleep:

The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection – Georgetown Law Journal, 2000 (first comprehensive law review article on workplace bullying, including a thorough discussion of IIED claims for workplace bullying-type behaviors).

Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial WorkplaceBerkeley Journal of Employment and Labor Law, 1998 (explains why private-sector employees have few free speech rights; slightly dated but basic legal discussion largely holds up today).

Human Dignity and American Employment Law – University of Richmond Law Review, 2009 (setting out the philosophical and public policy parameters for a system of employment law that safeguards human dignity).

Occupy movement goes global: 900 cities and counting

The social protest movement that started several weeks ago with Occupy Wall Street has gone global, as Esther Addley reports for Guardian newspaper (link here):

  • 60,000 protesters in Barcelona, Spain
  • 25,000 in Santiago, Chile
  • 5,000+ “massed outside the European Central Bank” in Frankfurt, Germany
  • 4,000 in London
  • 3,000 in Auckland, New Zealand

Addley adds:

The Occupy campaign may have hoped, at its launch, to inspire similar action elsewhere, but few can have foreseen that within four weeks, more than 900 cities around the world would host co-ordinated protests directly or loosely affiliated to the Occupy cause.

Testifying on the human costs: Occupy the Boardroom

As protests mount, others are finding ways to spread the message online. Joshua Holland, writing for AlterNet (link here) reports on Occupy the Boardroom, a project that allows members of the public to share personal stories of what the economic meltdown has done to them and their families. For example, here is what one woman from North Carolina wrote to fellow Tar Heel Erskine Bowles, co-chair of the President’s national debt commission:

Like you I’m from the Tar Heel state so I thought I’d tell you my story. A couple of years ago my father died waiting for a liver transplant. It was an ugly, horrible death and left me parentless while still in my 20s. My brother and I inherited the small ranch-style house my father worked his whole life to pay off. (Our mother died during our childhoods.) I wanted to take care of my father’s money so I invested it. Six months later I had lost over half of it when the crash happened. I lost half of my father’s life savings because of the corrupt practices of Wall Street. My father worked his whole life. He was the 11th child of a sharecropping family and was sent to the cotton fields before he was ten. He completed high school but there was no money for college so he went to work at blue-collar jobs which he used to support us his whole life.

When I think of the money I lost, I think of my father’s hands. I think of his broken, scarred hands that built a home and future for me. It wasn’t just money that Wall Street stole. Futures, trust, hard work and respect — those are the things Wall Street corruption has stolen from the American People, not just money. I don’t think everyone on Wall Street is corrupt, but the system is, and I want to do my part to correct it, even if it’s just writing a letter like this. I owe my father that. Mr. Bowles, I hope you do your part too. Because of your position, you are a powerful person in our society. So I ask you, how will you use your power? What will your legacy be?

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Watch and listen to this catchy video and song above, “We Are the 99%,” posted on YouTube.

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