On being restlessly patient in advancing positive law and policy reforms

A piece in the current issue of the Economist, the venerable British news magazine, resurrects the tax policy positions of Henry George, an author and political economist who built a worldwide following during the last half of the 19th century:

ON A trip to New York in the late 1860s the journalist Henry George was puzzled. He found the rapidly growing city to be a place of unimaginable wealth. Yet it also contained deeper poverty than the less-developed West Coast. How could this be? George had an epiphany. Too much of the wealth of New York was being extracted by landowners, who did nothing to contribute to the development of the city, but could extract its riches via rents. The problem could be solved by a tax on land values.

George’s subsequent masterpiece, “Progress and Poverty”, sold more copies in America in the 1890s than any other book except the Bible. It spawned campaigns for land-value taxation around the world. It also inspired a board game, “The Landlord’s Game”, a precursor to “Monopoly”. The game was designed to show how property markets naturally tend towards monopolies in which one player can extract all the rent.

Examining the current state of tax policy, the Economist concludes that a stronger reliance on land taxation might be a good thing.

I’ve been interested in George’s land tax proposal ever since reading about it in Robert L. Heilbroner’s The Worldly Philosophers: The Lives, Times, and Ideas of the Great Economic Thinkers back in college. (Heilbroner has passed, but his book — last revised in 1999 — remains, in my opinion, the most engaging, lucid, and accessible introduction to the history of economic thought.) As the Economist piece suggests, Henry George’s ideas would fade into obscurity. They have been kept alive by a small but determined band of economists and social activists, coalescing around a group of independent Henry George Schools dedicated to providing continuing education and scholarship about Georgist economic principles.

But the purpose of this writeup isn’t to convince you, dear readers, on the merits of Henry George’s taxation theories, even though I believe they are worth considering. Rather, it’s to point out that important ideas about law reform and public policy sometimes take years to percolate, in some cases beyond our lifespans.

With that reality in mind, I have favored an attitude of restless patience in advocating for desired changes in law and public policy. In this context I think of restless as being dissatisfied with the status quo. I think of patience as being smart, persistent, and determined. I have had to give myself this advice on at least three areas of law and policy reform very dear to me:

Workplace bullying and law reform

Some 20 years ago, my first law review article on the legal and public policy implications of workplace bullying was accepted for publication, and it would be published by the Georgetown Law Journal in 2000. Among other things, it surveyed potential legal protections for targets of workplace bullying under American employment law and found them wholly wanting. I proposed the parameters of what would become a model workplace anti-bullying statute, eventually dubbed the Healthy Workplace Bill (HWB).

For some 15 years, the HWB has been the main template for law reform efforts concerning workplace bullying, but it has not yet been enacted in its full form by any of the 30 states in which it has been introduced. However, in recent years we have had some breakthroughs, with several states and municipalities enacting workplace bullying legislation and ordinances drawing heavily from the language of the HWB. Unions and government entities are also using the HWB language to collectively bargain over workplace bullying concerns and to design internal agency employment policies.

Here in Massachusetts, we continue to work hard to make our state the first one to enact comprehensive workplace anti-bullying legislation. The HWB once again stalled in the just-completed session of the MA legislature, despite dozens of legislative sponsors and a positive report out of the committee overseeing it.

Advocacy work can be frustrating and sometimes demoralizing. But if you believe deeply in something, you keep going. Maybe you change strategies or tactics, but you persevere. And come January, when the 2019-20 session of the legislature begins, we’ll be ready to go.

Like an unwanted holiday fruitcake

In 2002, the Connecticut Law Review published my article on the legal status of interns, in which I looked at the burgeoning intern economy and concluded that many unpaid internships are running afoul of minimum wage laws. I hoped that the piece would quickly stir some interest, but for many years it pretty much sat there, like an unwanted holiday fruitcake.

This changed when a writer named Ross Perlin authored the first comprehensive examination of the explosive growth of unpaid internships, Intern Nation (2011). He referenced my 2002 law review article and called it “the single best source of information for American internships and the law.” (Thank you again, Ross, for pulling my article out of depths of Westlaw and Lexis-Nexis.) One of Ross’s readers, Eric Glatt, chased down my law review article and concluded that his unpaid internship with Fox Searchlight Pictures just might’ve been in violation of minimum wage laws. Eric would become the lead plaintiff in a federal lawsuit seeking compensation for that internship.

To our disappointment, federal courts have not been friendly to these claims brought by unpaid interns, adopting a very pro-employer legal test for exempting interns from the minimum wage. However, the door has not been completely closed on such legal claims, and the considerable publicity generated by these cases has caused many employers to opt to pay their interns. The debate over unpaid internships, once a non-existent one, continues to reverberate in business and legislative settings.

Should law be therapeutic?

In recent years I’ve allied myself with a much broader effort to change our laws and public policies, an interdisciplinary field of philosophy and practice called therapeutic jurisprudence. “TJ,” as it is commonly referred to, examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. It favors outcomes in legal disputes and transactions that advance human dignity and psychological well-being.

TJ was founded in 1987 by two American law professors, David Wexler and Bruce Winick. Although it has grown into a global network of scholars, lawyers, judges, and other practitioners, it has yet to enjoy a mainstream presence in legal academe or legal practice. To help expand TJ’s influence, we have formed a new non-profit, membership organization, the International Society for Therapeutic Jurisprudence. I am serving as the ISTJ’s first board chair.

I hope that someday, sooner than later, TJ will be recognized as a primary framing theory for the design and application of the law. In the meantime, I find myself inspired by that cohort of scholars, educators, and activists who have kept the flame of Henry George’s ideas alive for so many years.

On being restlessly patient

Indeed, I’d like to think that the spirit of Henry George is pleased to see his ideas about land taxation knocking on the door of greater mainstream reception. Of course, in my case I’d rather not wait for some 130 years to see workplace bullying laws widely enacted, interns being paid for their work, and our laws and public policies embracing human dignity and psychological well-being. But at least it’s a reminder that good ideas can’t be suppressed forever.

As I find myself urging upon those who are understandably frustrated with the pace of social progress and justice, we cannot control outcomes, we can only try to influence them. This is an especially important reality for the times in which we live. Buoyed by a spirit of restless patience, our job is to dig in, plant the seeds for positive change, and take part in moving our society toward something better.

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You may freely download my law review articles on workplace bullying, intern rights, and therapeutic jurisprudence from my Social Science Research Network page. At the risk of being immodest, I have been told by many folks who are not lawyers or academics that they are very readable and accessible, which I consider to be a supreme compliment.

In the news

It has been a year of prominent news stories related to the workplace, especially the avalanche of accounts concerning sexual harassment. Here are many of the 2017 news stories in which I’ve been quoted or where my work has been discussed:

Unpaid internships and the intern economy: Latest work

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A look at unpaid internships and the intern economy

As steady readers here are aware, for many years I’ve been engaged in scholarship, public education, and advocacy concerning the oft-exploitative practice of unpaid internships. I’d like to provide a quick update on my latest activities in this realm.

I just posted to my Social Science Research Network (SSRN) page a short law review essay, “‘Mass Exploitation Hidden in Plain Sight’: Unpaid Internships and the Culture of Uncompensated Work,” a followup to an excellent symposium on employment law issues hosted by the Idaho Law Review last year. For those who would like a more compact scholarly summary of recent major legal and policy developments concerning the employment rights of interns and the larger implications of the burgeoning “intern economy,” this piece will provide it. You may freely download it from my SSRN page.

Brief filed by attorneys at Lieff Cabraser

Brief filed by attorneys at Lieff Cabraser

Wang v. Hearst Corporation is one of the most prominent legal challenges to unpaid internships, and the case is currently pending before the U.S. Court of Appeals for the Second Circuit. Recently I agreed to be a party to a “Friend of the Court” brief supporting the legal position of the unpaid interns, organized by the National Employment Law Project and authored by Rachel Geman and Michael Decker, attorneys at the law firm of Lieff Cabrasser in New York City. Rachel and Michael did a wonderful job on the brief, seamlessly incorporating suggested additions from parties into their already superb draft. (You may go to this link for a pdf of the brief.)

Enjoying post-filming dinner with Nathalie Berger and Leo David Hyde

Enjoying a post-filming dinner with Nathalie Berger and Leo David Hyde

Yesterday I had the pleasure of being interviewed for a documentary project on unpaid internships being produced by Nathalie Berger and Leo David Hyde of Switzerland. During a whirlwind North American trip, Nathalie and Leo are conducting interviews with activists, writers, policy analysts, and scholars on the social, economic, and legal aspects of unpaid internships. Their documentary will paint a picture of the intern economy on a global scale. I was so impressed with their knowledge and depth of understanding of this topic, and I’m very excited to watch this project unfold.

A talk on advancing dignity in our workplaces

For those of you who would like to contemplate the big picture of why we need to inject the value of human dignity into our workplaces, you’re invited to watch this 40-minute talk that I gave at the 2014 annual workshop of Human Dignity and Humiliation Studies (HumanDHS) in New York City. It was part of a public program on “Work That Dignifies the Lives of All People,” [Note: You may have to “rewind” the YouTube video to the beginning, as some for some weird reason, the talk sometimes starts at around the 10 minute mark!]

The talk gave me a chance to discuss many topics that I’ve raised here on this blog, such as workplace bullying, the low-wage economy, and the ravages of globalization. I then tied them together under the overall rubric of worker dignity.

Next I asked participants to consider our respective roles in promoting worker dignity. At the very least, I suggested, we can do our best to practice the Golden Rule at work, treating others as we would have them treat us. That’s not always easy, but it’s an especially good starting place.

This morning I was poking around the HumanDHS website and to my surprise found the video! I hadn’t posted it before, but I’m pleased to share it with you now. Introducing me is HumanDHS director Linda Hartling. As I mentioned in my last post, I just finished participating in this year’s HumanDHS workshop, and it once again was a tremendously rewarding experience.

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.

On immersing yourself and finding the ground floors of positive change

Hackers

For many years, I have counted Steven Levy’s Hackers: Heroes of the Computer Revolution (1984 orig ed.; now in a 25th ann. 2010 ed.) among my favorite books. It’s the story of the pioneers of personal computing, starting back in the late 50s and going into the heart of the 80s. It’s a wonderfully written book, full of personalities, discoveries, and innovations.

Nevertheless, from a distance this doesn’t look like the kind of book that would hold my affection. I’m not a tech geek. In fact, I am among a minority of professors at my law school who prohibit the use of laptops in my classrooms, and I have used PowerPoint only once in the many talks I’ve given at conferences and programs over the years.

So what’s the ongoing draw of this book?

For me, Hackers captures the great pull of immersing yourself in something that matters deeply to you; doing something positive, constructive, and/or creative; and being part of a group of people whose collective efforts exceed the sum of their parts. At times, it’s about being able to join something truly exciting on the ground floor.

Within the past decade or so, I’ve found those kinds of connections:

  • The workplace anti-bullying movement has become a core piece of my work and life. I feel very blessed that I discovered this movement early in its inception and am playing a meaningful role in growing it.
  • The emerging intern rights movement has also become deeply important to me. I’m delighted over my supportive, “senior” role to this predominantly younger cohort of activists.
  • The therapeutic jurisprudence network, only a quarter century old, is about to launch a global non-profit organization, and I am excited to be working closely with a small group of organizers.
  • Human Dignity and Humiliation Studies, founded in the early 2000s, is poised to help shape dialogue, research, and practice toward a more dignified society. Last year I joined its board, and I am stoked about the possibilities for expanding the influence of this wonderful network.

Most of the crowd in Hackers found their passions early in life. For me, these pieces didn’t truly come together until my fifties. Call me a late bloomer, but it took me a long time to grow into and find this groove. Now, it feels right, and I’m very grateful for that.

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You may read more about my work in these realms in my recently published law review article, “Intellectual Activism and the Practice of Public Interest Law” (Southern California Review of Law and Social Justice).

 

 

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

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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.

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