Charging tuition for credit-bearing, unpaid internships

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I’m delighted that Washington Post reporter Danielle Douglas-Gabriel is shining a light on the all-too-common practice of colleges and universities charging full tuition for unpaid internships that earn academic credit. In a front-page, bottom-of-the-fold story in today’s edition, she reports on Seton Hall University (New Jersey) students who are mounting a petition drive, calling upon the university to stop charging for internship credits:

Seton Hall University senior [Joshua Siegel] is among a group of students petitioning the school in South Orange, N.J., to stop charging for internship credits.

“It’s unfortunate that the school, which is not providing the service, not facilitating the process, not suffering any strain on its resources, feels it is owed compensation for me performing a function on my own,” Siegel said.

The university is responding by saying that the resources invested in overseeing, supervising, and monitoring internships justify that tuition charges. This response echoes what others within the higher education industry are saying in defending this practice.

True, a university expends resources in sponsoring credit-earning internship programs. However, those resources are largely administrative, with some faculty oversight that doesn’t come close to demanding the time and effort devoted to traditional classroom teaching and evaluation of students. I believe that charging some fee for facilitating and overseeing credit-earning internships is appropriate, but not close to full tuition.

Here’s one of my quotes in the Washington Post article:

“This is a huge ethical issue for universities that they are sneaking under the rug,” said David Yamada, director of the New Workplace Institute at Suffolk University Law School in Boston. “In this era of skyrocketing student debt, the fact that students are probably having to borrow money to do an internship for free is appalling.”

Grading exams and papers: A brief stay in the No-Fun Zone

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There are lots and lots of things that I appreciate about an academic career, but grading exams and papers is not among them! This is the slow slog of the job for me, especially with finals and term papers calling out to be marked. During post-finals grading period, virtually anything except what I’m supposed to be doing becomes fascinating by comparison: Looking out the window, listening to birds chirping, trying to recall the third-string quarterback on the 1985 Chicago Bears (Mike Tomczak), you name it.

And so it is this week, when procrastination habits usually conquered roar back with a vengeance.

I need to get back to my grading (or at least thinking about grading), but in the meantime I’m happy to share a few recent items with you:

WGBH segment on the Healthy Workplace Bill

Craig LeMoult, a reporter for WGBH news radio (an NPR station in Boston), did a story “Is It Time To Outlaw Workplace Bullying in Massachusetts?,” which included our advocacy efforts to enact the anti-bullying Healthy Workplace Bill. I was among those interviewed for the segment, and here’s a snippet:

“Most severely bullied employees do not have a direct line of legal recourse for that type of abuse,” said David Yamada, a professor at Suffolk University Law School who studies the issue.

. . . Yamada has written legislation to stop that kind of thing. It’s called the Healthy Workplace Bill, and it would allow victims to bring a civil claim against their employer and an individual bully. Yamada points out the bill would also give the employer the chance to avoid a penalty.

CommonWealth Magazine on unpaid internships

Colman Herman, a writer for CommonWealth Magazine, did a piece on the legality of unpaid internships for Massachusetts employers, “Unpaid internships — hard work, questionable legality.” Here’s part of what I had to say:

“There are a lot of students who simply can’t afford to work for free for such a long period of time,” says Yamada, the Suffolk law professor, “because they have to make some money — to pay their bills, to pay their tuition, to pay their expenses, and to put a roof over their head. So they have to pass up valuable internship opportunities. It doesn’t seem to me that asking for the minimum wage in return for entry-level performance is asking a lot.”

An honor from Valparaiso University

The Alumni Association of Valparaiso University, my undergraduate alma mater, has informed me that I am a 2016 recipient of Alumni Achievement Award, given to “alumni who have demonstrated outstanding achievement in their chosen career or area of professional life.” I will be traveling to VU’s Homecoming weekend this fall in northwest Indiana to receive the award and to participate in a program in which recipients discuss their work and how their college education and experience contributed to their lives. I am very grateful for this award and look forward to the Homecoming activities.

“Mass exploitation hidden in plain sight”: Idaho-bound to discuss unpaid internships

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Tomorrow I’m off to Boise, Idaho to participate in a conference — “Equality in Employment” — sponsored by the Idaho Law Review. On Friday I’ll be discussing the legal and policy implications of unpaid internships as part of a panel on exploitative labor practices.

The title of my talk and a forthcoming essay to appear in the Idaho Law Review is “‘Mass Exploitation Hidden in Plain Sight’: Unpaid Internships and the Culture of Uncompensated Work.” The first part of the title is a quote taken from a passage in Ross Perlin’s Intern Nation (rev. ed. 2012), with Ross’s blessing.

Here’s the abstract for my talk:

Although gaining internship experience has become a largely expected rite of passage for those seeking entry into many professions and vocations, until recently the legal implications of unpaid internships had remained something of a sleeping giant. In recent years, however, growing attention has been directed to this subject through litigation, legislative advocacy, social activism, and media coverage. My remarks, drawing on previous and current scholarship, will summarize the emergence of the so-called intern economy, examine the two primary legal issues relating to unpaid internships, and discuss several significant, broader policy themes concerning the intersection of internships, education, and the nature of paid employment.

It’s a lot to cover in 25 minutes, but I’ve become pretty good at focusing on the highlights! In addition, I’m looking forward to a stimulating day of presentations and discussions with learned colleagues and students at the University of Idaho College of Law.

Working Notes: Publications update

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Dear readers, this blog serves as a more informal medium for my commentary on workplace bullying, employee relations, workers’ rights, and the like. As I periodically mention here, most of my in-depth, scholarly writings on these topics are in the form of law review and journal articles.

Fortunately, most of these longer writings are freely accessible via my Social Science Research Network (SSRN) page, where you can read short abstracts of my scholarly articles and download full pdf texts of each. I’m happy to invite you to take a look at them, as I strive to write academic pieces that can be read and understood by those who are not necessarily trained in law. To date I have posted 19 articles to my SSRN page, including:

  • The first U.S. law review article to comprehensively assess the legal and policy implications of workplace bullying (“The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection,” Georgetown Law Journal, 2000);
  • A more recent piece on legal developments concerning workplace bullying that contains the full text of the current template version of the Healthy Workplace Bill and an explanation of its major provisions (“Emerging American Legal Responses to Workplace Bullying,” Temple Political & Civil Rights Law Review, 2013);
  • A theoretical and public policy exploration of how U.S. employment law can better affirm and protect human dignity at work (“Human Dignity and American Employment Law,” University of Richmond Law Review, 2009);
  • One of the first law review articles to examine legal issues relevant to the intern economy, which, in turn, helped to inform eventual litigation challenges to the widespread practice of unpaid internships (“The Employment Law Rights of Student Interns,” Connecticut Law Review, 2002);
  • An article that posits how therapeutic jurisprudence both exemplifies good legal scholarship and inspires a healthier culture of scholarly activity (“Therapeutic Jurisprudence and the Practice of Legal Scholarship,” University of Memphis Law Review, 2010); and,
  • The closest thing I have to an academic and social activist autobiography, a piece exploring how we can use  legal scholarship to inform and inspire law reform initiatives that advance the public interest, drawing heavily on my involvement in the workplace anti-bullying movement and the intern rights movement, as well as interdisciplinary initiatives committed to advancing human dignity (“Intellectual Activism and the Practice of Public Interest Law,” Southern California Review of Law and Social Justice, forthcoming).

To access these articles, it may be necessary to complete a free registration, but there’s a big advantage to doing so. SSRN is one of the world’s largest repositories of research and scholarship, containing over a half million freely downloadable papers and articles, including many on legal and employee relations topics. It’s a searchable treasure trove of scholarly research and commentary.

Working Notes: Engaging in intellectual activism

I’m delighted to share a draft of a forthcoming law review article on intellectual activism and news of a wonderful new board affiliation with a favorite group.

“Intellectual Activism and the Practice of Public Interest Law”

I’ve posted to my Social Science Research Network page a draft of a law review article, “Intellectual Activism and the Practice of Public Interest Law,” which will appear in the Southern California Review of Law and Social Justice, published at the University of Southern California law school. You may access a freely downloadable pdf version here.

Here is the article abstract:

How can law professors, lawyers, and law students use legal scholarship to inform and inspire law reform initiatives that advance the public interest? How can we bridge the gaps between academic analyses that sharpen our understanding of important legal and policy issues and practical proposals that bring these insights into the light of day and test their application? How can we bring an integrated blend of scholarship, social action, and evaluation into our professional practices?

I would like to explore these and related questions by invoking a simple framework that I call intellectual activism, which serves as 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 hopeful benefit of interested law professors, lawyers, and law students. It is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) researching and authoring proposed workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) playing a visible role in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in three unique, multidisciplinary networks and institutions that have nurtured my work in an intellectual activist mode, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists.

The article also includes an annotated bibliography of books broadly related to intellectual activism. Those seeking guidance and inspiration on how to blend scholarship and social action will find some valuable stuff in this book list.

Human Dignity and Humiliation Studies

I have gratefully accepted an invitation to join the board of directors of Human Dignity and Humiliation Studies (HumanDHS), a global, transdisciplinary network of scholars, practitioners, activists, and students who are committed to advancing human dignity and reducing the experience of humiliation.

I have written frequently about HumanDHS and my participation its annual workshops, including a piece last week highlighting writings by some of its core members that dig deep into the meaning of dignity and humiliation in our society. 

Frankly, some requests to join non-profit boards feel like a burden. Others, however, naturally mesh with one’s ongoing work and activities. My joining the HumanDHS board fits squarely in the latter category.

Great social media memes from Intern Labor Rights

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I’m closing the work week with a shout-out to the folks at Intern Labor Rights, who have been circulating these neat Internet memes about unpaid internships.

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Intern Labor Rights maintains an active Facebook page, which has become a popular online gathering spot for those in the intern rights movement.

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Earlier this summer, they released a statement criticizing the recent U.S. Second Circuit Court of Appeals decision in Glatt v. Fox Searchlight Pictures, Inc., in which the court fashioned a remarkably pro-employer standard for justifying exemptions from paying the minimum wage to interns:

Intern Labor Rights sees the Second Circuit’s ruling as a direct attack on the central purpose of Fair Labor Standards Act (FSLA): that people must be paid at least a minimum wage for the work they do.

In a recent article published in Forbes Magazine, Boston University labor law professor Michael Harper stated that the reasoning behind the appeals court’s seven new criteria for evaluating unpaid internships “is made out of whole cloth.” Suffolk University law professor David Yamada concurred stating “All the factors they drew up were really without legal authority.” Yamada believes that the Second Circuit judges “apparently decided to invent something new here, which is surprising at the appellate level.”

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The latest major effort to obtain legal redress for unpaid internships is a new class action lawsuit brought against the Olsen Twins fashion empire, filed in New York state court. Earlier this week, Jessica Goldstein, writing for ThinkProgress, interviewed me about this lawsuit and the broader legal implications of unpaid internships.

Why this unpaid internship stuff should matter to everyone

As I wrote last week, a federal appeals court ruling in Glatt v. Fox Searchlight Pictures, Inc., reversing a lower federal court decision holding that two unpaid interns hired by Fox Searchlight Pictures were entitled to back pay under minimum wage laws and certifying a class action on behalf of other interns hired by the company, was a setback for a growing intern rights movement.

In practical terms, the decision by the U.S. Court of Appeals for the Second Circuit invites private employers and universities to collaborate on schemes that (1) create unpaid internships; and (2) charge students tuition for the “privilege” of doing unpaid work. The ruling also makes it harder for unpaid interns to band together to challenge unpaid internships via class action lawsuits.

Basically, the “intern economy” that has been growing by leaps and bounds during the past three decades got a big judicial stamp of approval last week. It may be only temporary, but the Second Circuit’s ruling sends a bigger message that the label of “intern” is now being accorded its own legal meaning, one with a lesser status than that of a regular old “employee.” By slapping the intern label on what otherwise would be deemed an entry-level job, employers can potentially be exempt from paying even the minimum wage.

“Primary beneficiary” test

The Second Circuit adopted a “primary beneficiary” test to determine whether interns should be exempt from minimum wage laws. In other words, if someone is labeled an intern by an employer, we will now engage in a balancing test to determine who gets the better of the deal, the intern or the employer, taking into account a laundry list of “intangibles” such as training, networking opportunities, and so forth. It’s noteworthy that the Court said a lot less about the intangible benefits of interns to employers, such as training, mentoring, and evaluating the next generation of new people into a profession, in addition to the tangible work contributions that many interns provide.

Furthermore, it’s clear that these hedgerows to a paycheck are being created only for those trying to get their careers off the ground. Although many new high-level managers and professionals also go through training periods and enjoy networking opportunities, they will not be subject to this legal test.

Why this matters to all of us

This litigation, and the many other pending and settled lawsuits concerning unpaid internships, obviously are of direct importance to students and recent graduates. However, we all should be paying attention to this, because these cases are raising the fundamental question of whether people have a legal right to be paid for their work.

We are going down that slippery slope. Whereas internships were once largely confined to graduate-level professional programs, they now have become staples for undergraduates as well. Even more alarming is the expansion of unpaid internships into the post-graduate stage, sometimes dressed up under the label of “non-stipendiary fellowships.”

The work-for-free creep has already entered certain vocations with a vengeance. Last year I wrote about how so many writers, journalists, and other creative folks are struggling to find gigs that pay them for their labor. I quoted an extended editorial essay titled “The Free and the Antifree: On payment for writers,” in which the editors of N+1 magazine examined the challenges of economic and technological systems conspiring to make it difficult for capable writers, journalists, editors, and other wordsmiths to get paid for their work and to earn a living. (The N+1 piece favorably cited Ross Perlin’s Intern Nation (2011) — touted on several occasions in this blog — as one of the first books to come out of the “antifree movement.”)

So…for anyone who thinks this unpaid intern stuff is someone else’s problem, please think again. This is all about the dignity of being paid for one’s labor, and the resolution of these lawsuits will help to determine if the door has been opened or closed to more and more unpaid work.

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Media Coverage

Forbes.com

I was quoted in this Forbes.com piece by Susan Adams on the Court of Appeals ruling:

Agrees Suffolk University law professor David Yamada, who wrote the first law review article on unpaid internships back in 2002, “All the factors they drew up were really without legal authority.” In fact the judges cite no case law for their checklist. “They apparently decided to invent something new here, which is surprising at the appellate level,” says Yamada.

Bloomberg Law

I appeared on June Grasso’s radio program for a 20-minute segment, along with entertainment law professor Jay Dougherty. It was a lively, collegial exchange that allowed for some substantive give-and-take about internships and compensation. You may access the link here.

U.S. Appeals Court deals setback to interns seeking to be paid for their work

The U.S. Court of Appeals for the Second Circuit has reversed a lower federal court decision holding that two unpaid interns hired by Fox Searchlight Pictures were entitled to back pay under minimum wage laws and certifying a class action on behalf of other interns hired by the company. The Second Circuit’s decision in Glatt v. Fox Searchlight Pictures, Inc.released today, is the latest development in a much-watched case about the employment rights of unpaid interns.

In 2013, a federal District Court in New York held that lead plaintiffs Eric Glatt and Alex Footman were employees for purposes of federal and state labor standards laws and thus entitled to compensation for their internships. The court also granted plaintiff Eden Antalik’s motion class certification under New York labor standards law and granted conditional class certification under federal labor standards law.

Primary beneficiary test

In reversing the District Court, the Second Circuit rejected the U.S. Department of Labor’s six part test for determining when private employers may be exempt from paying their interns the minimum wage. This test, among other things, considers whether or not the intern was providing an immediate benefit to the internship provider. Instead, the Court ruled that a “primary beneficiary” test should apply, examining “whether the intern or the employer is the primary beneficiary of the relationship.” The Court further offers its own set of factors to be applied toward this determination, heavily favoring intern providers and significantly discounting the work contributions of an intern.

In practical terms, the decision invites private employers and universities to collaborate on schemes that (1) create unpaid internships; and (2) charge students tuition for the “privilege” of doing unpaid work. Yes, that’s a strong characterization, but it’s pretty easy to read between the lines of this judicial opinion. However, the ruling also leaves vulnerable those employers who offer full-time unpaid summer internships not tied to a university educational program.

Class actions

The Second Circuit decision also makes it more difficult for interns to file class actions for unpaid wages. The practical downside here is that unpaid intern claims will be less appealing cases for lawyers, thus rendering this widespread practice more difficult to challenge in the courts.

Not the end of the case

This is not necessarily the end of the Glatt litigation. The Second Circuit did not dismiss the lawsuit; rather it “remanded” the case back down to the District Court for a potential decision in congruence with the new legal standards specified in this opinion. It is possible, for example, that Glatt and Footman could still be owed back wages under the more stringent, one-sided factors adopted by the Second Circuit.

The Second Circuit’s decision is a setback, albeit possibly only a temporary one, for an emerging movement challenging the widespread practice of unpaid internships. I’ll have more to say about the implications of this decision soon.

The “summer job” vs. the “fancy internship” (revisited)

Ribordy Drugs in Highland, Indiana, site of my college summer jobs, where I worked as a stock clerk

Some four years ago, I mused on the nature of traditional, entry-level summer jobs versus fancy internships for undergraduates:

Say you’re a young college student, weighing your options for the summer. Assuming you have some choice in the matter, what’s better preparation for a successful career, a summer internship with a prominent business or non-profit group, or a summer job filling shelves and running a cash register for a local supermarket?

Although I readily admitted that the internship is most likely the better option in terms of credentialing and experience, I waxed nostalgic about past summer jobs when I was a college student, in the days before internships became so common. For those who find themselves “stuck” in a low-paying summer job rather than a career enhancing internship, I’d like to expound upon some of the hidden advantages of the minimum wage gig compared to interning for that Master of the Universe on Wall Street or Senator Wanna-be-Prez on The Hill:

1. It’s about work: In the summer job, you’re paid for your work, maybe not a lot, but it’s an exchange of labor for a paycheck, and that’s it. There’s no B.S. about “gaining experience,” “networking,” and “building contacts” — lines especially favored by those touting unpaid internships.

2. More diversity: You’re likely to work with a more socio-economically diverse group of people, with varied backgrounds, ages, and life stories. You’ll see good people working hard, even if the job isn’t their life dream or doesn’t pay all that great.

3. Work ethic: The summer job reminds you not to be a snowflake. If you do quality work, you’ll probably be treated okay. If you don’t, you’ll likely hear about it. You’ll learn that a work ethic is generated largely from within. You’ll also come to savor a nice word for doing an extra thorough job on a task that required more sweat and determination than analytical know-how.

4. Keeping it real: While a positive disposition is always helpful in any job or internship, in an ordinary summer job you don’t have to fake it quite as much and project a false sense of gee-whiz enthusiasm for a mundane project. Your boss knows that putting 20 cartons of products on the store shelves isn’t an exciting assignment, and all she asks is that you do the job competently and with a decent attitude.

5. Appreciating contributions: Whether it’s unpacking boxes, cleaning tables, taking customer orders, running errands for the boss, sweeping the floors, or some other seemingly unglamorous duty, you’ll learn how these tasks contribute to a successful business. And if you ever become the CEO of a company like that, then maybe you’ll appreciate those contributions in setting or negotiating the pay and benefit scales for your employees.

Reality checks

Okay, as I conceded four years ago, I realize the game has changed a lot since my collegiate days. These days, a student who opts for the kind of unglamorous summer jobs that I had over an internship that looks good on a resume and potentially opens a door, might actually be called foolish.

Furthermore, the pressures and realities for college students have intensified:

1. Not either/or: Because of the costs of college and the perceived need to build credentials, way too many undergraduates are doing both the summer job and the unpaid internship. This is especially the case for those who don’t have funding from family or other sources to cover their living expenses. For those who, in essence, are pulling ongoing double shifts, this also creates the risk that they won’t be as sharp in either position.

2. Shorter supply: Even the old-fashioned, minimum wage-type summer jobs are in shorter supply. Many of these positions have been taken by adults of all ages who cannot find better paying work elsewhere. The sharp decline of the U.S. manufacturing sector, in particular, has contributed to a huge shortage of jobs that pay living wages and decent benefits. Also, more than a few “summer jobs” have been relabeled unpaid “internships” in an effort to escape expectations of compensation. (Long-time readers know that I have been very involved in supporting legal challenges to the widespread practice of unpaid internships, but this practice remains very common.)

3. A lot less fancy: Building on my point above, the intern economy has become an exploitative extension of the training and credentialing period necessary to qualify for full-time employment in a given occupation. When I was in college, securing an internship as an undergraduate was seen as a plum achievement, worthy of envy — “Hey, I got this incredible internship where I’m going to meet all these heavy hitters and gain tons of experience!!!” Today, however, the intern world has devolved into an ongoing procession of unpaid and low-paid “opportunities,” with few assurances of a post-graduate paying gig at the end.

I guess the upshot of all this is that it’s hard to reverse course. The intern economy is now baked into the superstructure of training and credentialing for many professions, and that’s unlikely to transform anytime soon. The entry-level summer job market for students has shriveled, especially during these post-meltdown years.

Back in the late 1970s, had someone told me that my summer job unloading trucks and doing other retail tasks for a local drugstore chain would actually teach me more valuable lessons than an elusive internship secured by someone at a tonier college, I would’ve scoffed at them dismissively. Today, however, I’m grateful for that experience, especially in light of how things have changed.

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This entry was revised in June 2018.

Let’s get apocalyptic

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University of Texas journalism professor Robert Jensen, in his thought provoking little book We Are All Apocalyptic Now: On the Responsibilities of Teaching, Preaching, Reporting, Writing, and Speaking Out (2013), urges intellectuals to be “responsibly apocalyptic.” I’ve discussed Dr. Jensen’s book before, and I’d like to spend a little more time with it. 

A different kind of revelation

Jensen defines apocalypse not in dramatic Biblical terms, but rather in reference to “crises that concentrated wealth and power create.” He continues, saying that “(i)t is not crazy to look at the state of the world — economically, politically, culturally, and ecologically — and conclude that there are rocky times ahead.” However, rather than invoking “a reactionary theology” that predicts “the rapture to come,” the concept of “apocalyptic vision can help us understand social and ecological ruptures in the here and now” (emphasis mine).

Intellectuals in institutions

Furthermore, Jensen observes that many intellectuals associated with institutions — “universities, think tanks, government, corporations” — go along with prevailing norms because they either believe in them or don’t want to get in trouble. Instead, he urges intellectuals to be “responsibly apocalyptic” and “to challenge the pre-ordained conclusions that the powerful prefer.” If intellectuals do not confront these norms, then the powerful need not worry about being accountable for their actions.

Responsibility

I referenced Dr. Jensen’s work in a blog piece in 2013, “The social responsibilities of intellectuals at a time of extraordinary human need,” written in conjunction with my participation in the biennial Congress of the International Academy of Law and Mental Health.” In that post, I invoked “responsibly bold” as my catchphrase for how scholars and intellectual activists should conduct themselves.

I agree with Jensen that we are living in an era marked by extreme inequalities of wealth and power distribution. These inequalities surely relate to a market-based economy run amok. In addition, they implicate power grabs in many societal settings that may transcend political labels — unless, of course, “thuggishness” counts as an ideology.

I have witnessed these dynamics in the workplace issues I study, research, write, and advocate about on a regular basis.

For example, workplace bullying is directly linked to organizational leadership and abuses of power. Though perpetrated by individuals, work abuse cannot flourish without buy-in and endorsement from the top.

Also, the widespread practice of unpaid internships, especially in the private sector, exploits labor under the guise of gaining “experience” and “credentials.” It also excludes those who cannot afford to work without pay.

Topics that haven’t been focal points for my scholarship, but that have appeared regularly on this blog, include exorbitant student loan debt, long-term unemployment for older and younger workers alike, and America’s burgeoning retirement funding crisis. In the U.S. alone, these are all symptomatic of a broken economic structure and social safety net.

Those of us who engage the world of public ideas have a change-making opportunity to be responsibly bold. We should put forth sound analyses, interpretations, and recommendations for the greater good, especially during this plutocratic, New Gilded Age that has become our reality. If that’s what being “apocalyptic” is all about, then so be it.

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