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Category: Harassment

A Guide to Workplace Bullying

Posted on by Workplace Fairness
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Michael Metcalf, Author

Bullying is an all-too-common workplace issue. And if reports are correct, it seems to be on the rise.

Workplace bullying is one of the most damaging issues for any organization, as it can affect employee productivity, financial performance, and brand strength. On top of that, there’s no moral justification for letting it happen.

Employees deserve to work in comfortable environments of psychological safety. They should be able to relax, be themselves, and collaborate with others without fear or emotional upset.

Workplace Bullying Statistics in 2021

  • 1 in 4 UK workers have been bullied at work. The same amount also reported feeling left out in the workplace too.
  • One survey of 3,000 American adults found that workers across the age, gender, and education spectrum experience high levels of hostile behaviors at work.
  • 37% of Australian workers report having been cursed or yelled at in the workplace.
  • 1 in 5 American workers have been subjected to some form of verbal abuse, unwanted sexual attention, threats, or humiliating behavior at work.
  • 1 in 8 American workers have experienced direct verbal abuse or threats.
  • 8% of women aged 25-34 report having had unwanted sexual attention in the workplace during the last month.
  • Men aged 25-34 without a college degree report the highest levels of bullying, with 35% having experienced bullying at least once recently.
  • 1 out of 5 students in the US report being bullied, according to the National Center for Educational Statistics.
  • Workplace bullying is estimated to cost Australian businesses more than $6bn per year.

Why is it important to deal with workplace bullying?

It’s fairly easy to understand why this is important. Bullying is a workplace issue that can have tons of negative impacts on employees, management, company culture, and overall productivity.

If bullying becomes widespread enough, stories can leak out to the public and damage your brand – nobody wants to do business with a company of bullies, and not many people want to work in a place where bullies can get away with it.

Workplace bullying can have mild to severe impacts on victims, including:

  • low morale/loss of motivation
  • inability to concentrate or complete tasks
  • lowered productivity
  • social anxiety and avoiding people
  • anxiety and depression
  • stress, PTSD (post-traumatic stress disorder), and other mental health issues
  • reduced confidence and self-esteem
  • sleep problems
  • other consequences of stress like digestive issues and a weakened immune system
  • more frequent absences from work because of the above issues

If it’s obvious that one person is a bully, others might alter their behavior to avoid their attention. They might be reluctant to do anything distinctive that makes them stand out, or they could shy away in situations that require collaborative creativity. And even when bullies are dealt with by management, there’s a loss of productivity while they have to go through disciplinary procedures, maybe even getting suspended too.

Bullying can cause trust issues within your teams, too; not just directly between the bully and the bullied employee, but across the organization, fostering a culture of secrecy, gossip, and paranoia if left unchecked.

There’s also a measurable financial cost to bullying. If staff leave due to being bullied, there are the obvious costs of replacing them and training new staff. But there’s also the possibility of dealing with costly legal action if things get to a certain point, too. And higher incidences of sick leave and lower productivity will have a financial impact, as well.

No matter how competitive and high-pressure your work culture is, when positive aggression tips over into harmful bullying, you have to act quickly and decisively to stamp it out.

What should I do if I’m being bullied at work?

The first thing to do if you’re wondering how to deal with bullying at work is to tell someone about it.

It’s not always easy to do, of course. You might have a more reserved personality type, or you could have had a bad experience in the past when trusting someone with a personal problem.

But talking is almost always your best starting point, whether it’s with your line manager, a colleague, a close friend, or a family member. Getting it out of your head means you’re under less of a mental burden keeping it a secret, and talking it through will make you feel better. What’s more, you might end up getting some great advice on how to deal with the situation.

It’s also important to keep records of everything. Bullies can spread their deeds out into multiple small-scale transgressions, which individually, don’t seem much. It’s hard to complain about little things without feeling a bit silly – which is the reaction they’re looking for.

But if you note down details of each occurrence, you can build up a timeline that clearly illustrates a campaign of workplace harassment over time. You can take a report like this to management, presenting irrefutable evidence that you’re being victimized. If it’s noticeably affecting your job performance, any competent manager will want to intervene straight away.

Another option is to be proactive and confront the bully yourself – fight your corner.

You might think back to a parent telling you to “stand up for yourself” in the school playground when someone was bullying you – it’s easier said than done. Or how about “just ignore them” – well-meaning advice that’s nigh on impossible to follow when somebody really has it out for you. But if management isn’t being especially helpful, it might turn out to be the most effective strategy.

Instead of going in all guns blazing, you could take a less confrontational route.

You could try letting the bully know how their words or actions made you feel. They’ll already have a good idea, of course, if their actions are intentional, but by putting it all out there, it might cause a wave of guilt causing them to stop.

Try to figure out why they have a problem with you. Offer to lay it all out on the table, apologize for anything you might have done to upset them, and clear the air. This strategy won’t work for every situation and does take a bit of bravery, but it might be the quickest, most effective way to solve your bully problem. You might even end up becoming friends with them.

What are the signs that someone is being bullied at work?

There’s a bunch of different bullying at work signs that you should look out for. When coworkers are having problems with a bully, they might be reluctant to bring attention to it. So here are some of the signs to look out for:

  • They’re absent from work more often
  • They seem dissatisfied, downbeat, and unmotivated
  • They’re not performing so well at their job
  • They make excuses for avoiding work-related social events
  • You hear others gossiping about them

You might see one of these signs on its own, which doesn’t necessarily mean they’re being bullied. There might be a perfectly reasonable explanation.

But if you start noticing a couple of these signs together, something is probably going wrong for your coworker behind the scenes. Reach out, talk to them, and offer to help.

Final thoughts

Bullying and harassment in the workplace is a serious problem that needs to be addressed. Certain social movements from the 2010s onwards have given more people the confidence to speak up when they witness injustice in their organization, but there’s still a long way to go.

Tackling bullying takes a combined effort from coworkers and management. Workers need to be supported both with the presence of official procedures and the confidence that their complaints will be taken seriously.

If workplace bullying goes unchecked, the negative effects on employees, management, and the public reputation of the company can be enormous – so it’s something to deal with swiftly and judiciously.

Read the full article here.

This blog was printed with permission.

About the Author: Michael is a passionate writer and has written for other major publishing sites such as Trello, Unilever, and Timetastic. At F4S, he writes research-based articles and guides covering leadership, management, and everything involving workplace wellness.


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Meet the Warehouse Worker Who Took On Amazon Over Inhumane Conditions and Harassment

Posted on by Michelle Chen
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Hibaq Mohamed has worked for Ama­zon near­ly as long as she’s been in the Unit­ed States. In 2016, the twen­ty-some­thing Soma­li immi­grant land­ed in Min­neso­ta by way of a refugee camp, join­ing one of the largest East African com­mu­ni­ties in the coun­try. She soon joined the legion of work­ers who fuel the state’s main Ama­zon facil­i­ty, the MSP1 ful­fill­ment cen­ter in Shakopee, near the Twin Cities.

“This was my first job,” Mohamed says. “They were hir­ing work­ers … East African and peo­ple like me. [These work­ers] didn’t have a lot of expe­ri­ence, they don’t know a lot.” 

The Shakopee facil­i­ty employs rough­ly 1,000 work­ers to exe­cute Amazon’s high­ly mech­a­nized work reg­i­men every day, pack­ing orders at a fren­zied rate of around 250 units per hour. While items zip down a con­vey­or belt, the work­ers are mon­i­tored, through an auto­mat­ed sys­tem, to track their speed and any errors that might dam­age their per­for­mance ratings.

On top of the pres­sure to meet quo­tas, Mohamed says man­age­ment decid­ed to “fire a crazy num­ber of work­ers” short­ly after she start­ed work­ing there. “And they are not telling us what they fired them for,” she recalls. She says the work­ers were immi­grants who did not speak Eng­lish fluently.

Though Ama­zon says these were sea­son­al hires—and were there­fore dis­missed once their tem­po­rary stints end­ed, the seem­ing lack of trans­paren­cy trou­bled Mohamed. “I feel like this was unfair,” she says.

Around 2017, Mohamed and oth­er East African immi­grant work­ers start­ed meet­ing with the Awood Cen­ter, a Min­neapo­lis work­er cen­ter. As fledg­ling com­mu­ni­ty orga­niz­ers, Mohamed says, “We have to be smart, we have to have the train­ing to do this.” Over the past two years, East African work­ers have spear­head­ed a num­ber of walk­outs and protests at Ama­zon against what they per­ceive as incom­pe­tence, inhu­mane pro­duc­tiv­i­ty stan­dards and a lack of diver­si­ty among the man­age­ment. Images of hijabis walk­ing the pick­et line and ban­ners pro­claim­ing that work­ers are “not robots” gar­nered nation­al headlines. 

Fol­low­ing ini­tial protests in 2018, Ama­zon man­age­ment sat down with MSP1’s East African work­ers to dis­cuss work­ing con­di­tions—high­ly unusu­al for Ama­zon, which had pre­vi­ous­ly avoid­ed such direct talks with workers.

Ama­zon even­tu­al­ly agreed to make some accom­mo­da­tions at the facil­i­ty, such as com­mit­ting man­agers to meet quar­ter­ly with work­ers and respond to com­plaints with­in five days, accord­ing to the New York Times. But work­ers have con­tin­ued to com­plain about the intense pro­duc­tiv­i­ty pres­sure, which often leaves them with­out time for dai­ly prayers and bath­room breaks, despite Ama­zon claim­ing that work­ers can pray at any time. MSP1 also has one of the high­est injury rates among Amazon’s ful­fill­ment centers.

Awood has become a hub for the East African work­er com­mu­ni­ty, teach­ing orga­niz­ing tac­tics and build­ing mutu­al sup­port. Awood oper­ates as a grass­roots group and not a for­mal union, but oth­er unions—includ­ing the Ser­vice Employ­ees Inter­na­tion­al Union and the Team­sters—have been sup­port­ing Ama­zon work­ers at MSP1 and oth­er facilities.

Just over a month after Min­neso­ta issued stay-at-home orders, Ama­zon elim­i­nat­ed unlim­it­ed unpaid time off for those who opt­ed to stay home for health con­cerns, which trig­gered a walk­out by more than 50 MSP1 work­ers. The work­ers also protest­ed what they said was the retal­ia­to­ry fir­ing of two work­er activists, Faiza Osman (who Awood claims was ter­mi­nat­ed after stay­ing home with her chil­dren to avoid infec­tion, but was lat­er rein­stat­ed) and Bashir Mohamed (who appar­ent­ly was dis­ci­plined for vio­lat­ing social dis­tanc­ing guide­lines, which work­ers say are selec­tive­ly enforced).

Work­ers’ fears about the virus were con­firmed in June, when about 90 ware­house employ­ees test­ed pos­i­tive for Covid-19. Bloomberg report­ed that Ama­zon had care­ful­ly tracked the Covid-19 infec­tion rate at MSP1, but did not dis­close details on the num­ber of cas­es to workers.

Man­age­ment “want[ed] to hide it,” Mohamed says. But while the high­er-ups were not exposed like the front­line work­ers on the ware­house floor, “We are the ones who are going togeth­er to the bath­room, to the break room. We are the ones get­ting the virus.”

Ama­zon has boast­ed about its Covid-19 response, claim­ing it has tak­en exten­sive mea­sures to keep work­ers safe while eas­ing up on quo­tas. But Mohamed says Amazon’s lead­ers “focus more for the mon­ey than the work­ers and people.”

Last week, work­ers’ fears about their risk of infec­tion were real­ized when the com­pa­ny report­ed that more than 19,000 of its 1,372,000 employ­ees at Ama­zon and Whole Foods had test­ed pos­i­tive for COVID-19. Though it claims that the infec­tion rate at its facil­i­ties was about 40 per­cent low­er on aver­age than in sur­round­ing com­mu­ni­ties, labor advo­cates denounced the com­pa­ny for need­less­ly putting work­ers’ health at risk.

The man­age­ment seems focused on Mohamed, how­ev­er. Amid ris­ing fears of Covid-19 risks at work, Mohamed was writ­ten up in July for tak­ing too much “time off task,” Amazon’s term for inter­mit­tent breaks. But she con­tends she had rarely received any dis­ci­pli­nary write-ups until the man­age­ment “clear­ly made me a tar­get” after she had protest­ed work­ing conditions. 

She wrote to Min­neso­ta Attor­ney Gen­er­al Kei­th Elli­son seek­ing pro­tec­tion under an exec­u­tive order shield­ing whistle­blow­ers from retaliation. 

“Ama­zon man­agers have tar­get­ed me and open­ly harassed me before,” Mohamed wrote, “but increas­ing­ly dur­ing the pandemic.”

Ama­zon denies Mohamed and her cowork­ers’ claims of retal­i­a­tion. Ama­zon spokesper­son Jen Crow­croft states via email, “We do not tol­er­ate any kind of dis­crim­i­na­tion in the work­place and we sup­port every employee’s right to crit­i­cize their employ­er, but that doesn’t come with blan­ket immu­ni­ty to ignore inter­nal poli­cies.” Sim­i­lar­ly, Ama­zon attrib­ut­es Bashir’s dis­missal to vio­la­tions of work­place rules. It also states Osman still works at Ama­zon and was not fired.

Mohamed’s alle­ga­tions reflect a broad­er pat­tern of fir­ings and pun­ish­ment of work­er-orga­niz­ers dur­ing the pan­dem­ic, which has prompt­ed law­mak­ers to inves­ti­gate Amazon’s labor prac­tices.. Last week, 35 work­ers at MSP1 staged yet anoth­er walk­out to protest the alleged fir­ing of one of Mohamed’s cowork­ers, Farhiyo Warsame, for “time off task” vio­la­tions, after she had voiced con­cerns about safe­ty pro­tec­tions at work.

For now, how­ev­er, Mohamed’s out­spo­ken­ness might pro­tect her, as the work­ers’ upris­ings have put Amazon’s labor prac­tices in the pub­lic spotlight. 

Ama­zon esti­mates about 30% of its Shakopee work­ers are East African, many of whom live in the Twin Cities Soma­li refugee com­mu­ni­ty, which has his­tor­i­cal­ly strug­gled with racial dis­crim­i­na­tion and socioe­co­nom­ic hard­ship. Now, these bonds have trans­formed into orga­niz­ing pow­er against a cor­po­rate empire. Hav­ing built a diverse com­mu­ni­ty of mil­i­tant work­ers at MSP1—Soma­li, Span­ish and Eng­lish speak­ers alike—Mohamed knows there is safe­ty in numbers.

“We have one goal, and we can under­stand each oth­er,” Mohamed says. “We have the pow­er to change pol­i­cy. … We have the right to exer­cise that in the Unit­ed States.” Although the com­pa­ny “give[s] us a lot of fear,” she adds. “[we] still have the courage to fight back and work for the change we want.”

This blog originally appeared at In These Times on October 5, 2020. Reprinted with permission.

About the Author: Michelle Chen is a con­tribut­ing writer at In These Times and The Nation, a con­tribut­ing edi­tor at Dis­sent and a co-pro­duc­er of the “Bela­bored” pod­cast. She stud­ies his­to­ry at the CUNY Grad­u­ate Cen­ter. She tweets at @meeshellchen.


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“So Bad I Had to Quit”: Understanding Constructive Discharge

Posted on by The Attorneys of Passman and Kaplan
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When is a resignation not considered a voluntary act?  When it is unlawfully coerced or the only escape from an intolerably hostile work environment?

A finding of “constructive discharge” is essentially the same as wrongful termination. The person technically quit but for all practical purposes they were pushed out. Federal employees alleging constructive discharge have a very short window to bring such a complaint.

What is constructive discharge?

Constructive discharge means that an employee, rather than being terminated, was forced to resign because of deception, coercion and/or unbearable treatment by the employer. In other words:

  • I quit because they lied to me about what would happen if I stayed.
  • I quit because they threatened to ruin me.
  • They made my job a living hell. I had no choice but to quit.

When an employee voluntarily leaves a job, they are typically not entitled to unemployment benefits. They are no longer entitled to due process through their employer. And they forfeit the right to sue for wrongful discharge. So it is in the employer’s interests to “encourage” employees to quit and characterize the exit as voluntary.

Involuntary resignation is not always constructive discharge

Quitting because of subjective feelings of “unfair” treatment is not grounds for a constructive termination lawsuit. Nor is quitting rather than face disciplinary proceedings or “I quit before they could fire me.”

In general, constructive discharge must meet one of these scenarios:

  • Hostile environment — The employee was subjected to retaliation, harassment or discriminatory conduct that created a hostile work environment so intolerable that a reasonable person would not be able to stay.
  • Coercion — The employer made misrepresentations or threats of adverse employment actions that the employee relied upon as a forced resignation.

You don’t have to prove that management conspired to make you quit, only that their actions or deceptions led you to believe you had no alternative.

Government workers must claim constructive discharge within 45 days

A landmark U.S. Supreme Court decision in 2016 (Green v. Brennan) clarified that the clock starts from the date of your resignation, not from the date of the manipulative or abusive conduct. For federal employees, that means you have just 45 days from your separation (the day you gave your resignation) to initiate a constructive discharge claim through the EEOC or the MSPB.

Where the complaint is filed depends on the underlying nature of the mistreatment, such as Title VII discrimination or whistleblower retaliation.

Don’t be too quick to quit your job

It is difficult to “undo” a resignation. If you storm out, dramatically shouting “I quit!” that is as legally binding as resigning in a formal letter. In general, it is harder to land new a job if you have already left gainful employment – you will have to explain the employment gap or explain why you left. Don’t do anything rash without getting legal advice.

In a perfect world, you should remain on the job and exhaust all of your due process rights, including filing a formal complaint of harassment, discrimination or retaliation. Obviously, if it gets so bad that your physical and mental health are jeopardized, you may conclude you can longer go back to work. Hopefully by then you have reported and documented the mistreatment, reprisal or inadequate response. Ideally, you will have another job lined up before leaving.

This blog was originally published by The Attorneys of Passman & Kaplan on January 8, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.


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Former Houston Texans cheerleaders sue team over low pay and harassment

Posted on by Kiley Kroh
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Five former Houston Texans cheerleaders are suing the NFL team, claiming they weren’t paid for many hours of work and were subjected to intimidation and harassment on the job.

“We were harassed, bullied, and body shamed for $7.25 an hour,” former cheerleader Ainsley Parish said at a press conference Friday.

The women, who are represented by prominent women’s rights attorney Gloria Allred, accuse the team of failing to pay its cheerleaders minimum wage and overtime, as well as failing to provide a safe working environment.

“I was attacked by a fan at a game leaving abrasions on my shoulder. My attacker was not approached, nor was he removed from the game,” former cheerleader Hannah Turnbow said during the press conference. “I was told to just suck it up.”

The five women aren’t alone; just last month, three other former Houston Texans cheerleaders sued the team and its cheerleading supervisor for failing to adequately compensate the women for hours worked, and accused the supervisor of body-shaming and failing to protect the cheerleaders from physical harm.

The suit alleges that the cheerleader director, Altovise Gary, told one cheerleader that she had a “jelly belly,” and criticized another cheerleader’s hairstyle, threatening to “find another Latina girl to replace her.”

In a statement, the team said it is “proud of the cheerleader program” and “will continue to make adjustments as needed to make the program enjoyable for everyone.”

The legal actions against the Texans are the latest in a growing body of reports and lawsuits detailing the exploitation of cheerleaders across the NFL.

Last month, the New York Times reported on disturbing allegations from former cheerleaders for Washington, D.C.’s NFL team, who claim they were forced to pose topless during a trip to Costa Rica in 2013 while male sponsors and suiteholders watched. Some of the women were then told they had to escort the men to a club later that night.

A former New Orleans Saints cheerleader filed a complaint with the Equal Opportunity Employment Commission earlier this year, claiming she was fired for posting a photo of herself in a bathing suit on her private Instagram account and for attending a party where Saints players may have also been present. Saints cheerleaders are instructed to avoid players in any setting, even on social media, and as ThinkProgress’ Lindsay Gibbs wrote, the onus is fully on the cheerleaders to comply.

In recent years, cheerleaders for the Oakland Raiders, Cincinnati Bengals, Buffalo Bills, Tampa Bay Buccaneers, and New York Jets have all filed lawsuits just to be paid the minimum wage for their work.

This blog was originally published at ThinkProgress on June 2, 2018. Reprinted with permission.

About the Author: Kiley Kroh is a senior editor at ThinkProgress.


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What Do Roger Ailes & Charlie Sheen Have in Common? Both Wanted to Hide Alleged Abuse of Women

Posted on by Paul Bland
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paulblandLast week, longtime Fox News anchor and host Gretchen Carlson filed a lawsuit against Roger Ailes, the chairman of Fox News, alleging that he sexually harassed her in the workplace. Within a day, Ailes and his lawyers asked a court to force the case into arbitration, under a special gag order that would block anyone from publicly disclosing any of the evidence in the case or the outcome of the arbitration.

The lawsuit alleges that Ailes sabotaged Carlson’s career after she “refused his sexual advances and complained about severe and pervasive sexual harassment.” Her complaint, which can be found here, alleges that her time at Fox News was riddled with Ailes’s inappropriate references to his own sexual history and marital issues and juxtaposed with a vocal interest in Carlson as a sexual partner. Ms. Carlson further alleges that Ailes used his power against her when she denied his advances, taking several steps that culminated in her being dismissed.

According to Fox News and Ailes, none of this is true. But instead of welcoming the chance to vindicate themselves in court, they want to move the case to a secret arbitrator.

Just Like Charlie?  Just after the news came out that Charlie Sheen was HIV positive, and he publicly admitted having unprotected sex with at least a couple of partners after his diagnosis, another revelation was widely reported: he’d been requiring visitors to his home to sign arbitration clauses with confidentiality provisions. And Sheen admitted on TV that he had paid “millions” to settle claims relating to his HIV status. These revelations created a very serious possibility:  that the secrecy of his arbitration clause made it possible for him to engage in risky behavior, then pay off injured women in secret proceedings, and then repeat the whole thing. When you look at the contracts guests to his home were required to sign it’s sort of bizarre, but the upshot of the arbitration ploy was pretty much the same as it is in the Roger Ailes case: it’s a way for a powerful man to impose a shroud of secrecy over allegations of serious mistreatment of women.

And these are not the only two cases involving this kind of allegation. Today’s New York Times reports how Ailes’ effort to force Ms. Carlson into arbitration is reminiscent of the actions of the infamous former head of American Apparel, Dov Charney, who was able to force a number of cases involving allegations of sexual harassment into secret arbitration.

Secrecy as the Driving Force. From the perspective of an employee, there’s a lot not to like about being forced to sign an arbitration clause as a condition of keeping your job, or applying for a job. For one thing, as the Washington Post reported, a substantial scholarly study of many thousands of arbitration cases (and a comparable pool of court cases) discovered that workers are less likely to win cases in arbitration than they would be in court, and that when workers do recover some kind of award in arbitration, that their recoveries tend to be pretty dramatically lower than they would have been in court.

But in the Ailes case, there’s something else afoot as well. While arbitration is always far more shadowy than the public court system (it’s generally incredibly hard for a journalist or member of the public to get copies of pleadings or evidence put before an arbitrator, for example, unless one of the parties to the case send the materials to them; arbitrators often don’t issue public opinions; etc.), the Fox News arbitration clause has a specific and broadly written gag order that goes far beyond the typical arbitration clause. And in Ailes’ pleadings in a New Jersey federal court, trying to force the case into arbitration, he and his lawyers specifically complain that Ms. Carlson’s allegations have become a matter of widespread public discussion. The conclusion of Mr. Ailes’ brief stresses that arbitration is necessary to make sure that the case cannot “sully his reputation in public,” apparently without respect to whether the actual facts would justify harm to his reputation. The point is not a search for the truth and exoneration; it’s to shut Ms. Carlson up.

Hypocrisy About Transparency:  As a news organization, Fox has repeatedly called for transparency with respect to all sorts of allegations against important public figures.  For example, Fox is very jacked up to try to break up an alleged “cover up” with respect to Secretary Clinton’s emails. And Fox was extremely interested in trying to make sure that every fact came out about allegations of problems at the World Bank.

But when it comes to allegations that relate to their own chairman, they seem to be awfully keen on making sure that the evidence of the case – in moving it to arbitration – be kept secret from the public.  If the case proceeded in the public court system, by contrast, then the actual truth – whether it’s good for Ailes and Fox or not – would come out.

So What Happens Now? It turns out, as the New York Times explained in some detail, that there’s a good chance that Ailes’ strategy won’t work.  Ms. Carlson has a number of good arguments against the enforcement of the arbitration clause, perhaps most notably that Mr. Ailes is not a party to the arbitration clause or named in it.

But if Ailes does succeed, then not only is Ms. Carlson less likely to win her case, but the American public and women in the workplace will be the losers. Because once again, a powerful man accused of mistreating women in the workplace will have been able to sweep all of the facts about the dispute under the big rug of forced arbitration. It’s easy to see why every significant civil rights organization or group that advocates for workers strongly opposes the use of forced arbitration in the work place, and they all keep urging the Congress to ban these clauses.

This piece was co-written with Kenda Tucker, Communications Intern at Public Justice.

This blog originally appeared on dailykos.com on July 14, 2016. Reprinted with permission.

Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy. Follow him on Twitter: .


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“Bow at the Altar . . . of Political Correctness”

Posted on by Philip Miles
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philip_miles_smallGender stereotyping claims, meet the super-manly world of ironworkers – men’s men. Macho men. Masculine men. What “real men” should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let’s start with the harassing conduct. The crew superintendent called the plaintiff “pu–y,” “princess,” and “fa–ot”; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that’s “kind of gay.”

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing “shop talk” types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):

By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . .

In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one’s speech is chilled as a condition of keeping one’s job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a â€code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate.

The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”

Wow, tell us how you really feel! So, what’s the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation – but trust me, if you’re counting votes at a circuit court in an en banc review of a jury verdict then you’ve already lost even if you win. That type of legal battle doesn’t come cheap.

This article was originally printed on Lawffice Space on October 11, 2o13.  Reprinted with permission.

About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.


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Workplace Bullying vs. Workplace Harassment: Is There a Difference?

Posted on by Teresa Zerilli-Edelglass
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Teresa Zerilli-EdelglassBack when my workplace nightmare first began in 1992, during an 11-year tenure at New York City Transit that ended in termination on the heels of a hard-fought federal court victory, there was no such thing as “workplace bullying”.  Bullying – or at least the term – was reserved for what one mean-spirited kid did to another in the schoolyard.  However, “bullying” has now become the catch phrase for every mean-spirited act that one human being commits against another, whether in the workplace or the schoolyard — or just about anywhere!

Just at the time when I was finally beginning to realize my American Dream, the harassment began. Over time, with no help in sight, it escalated to epic proportions, causing debilitating mental illness that would eventually render me incapacitated.  What I experienced back then was characterized as “harassment”. Today, this same treatment has evolved into “workplace bullying”, though legally speaking, it is still called harassment.  (Unless I’ve missed something, I’ve never heard of anyone filing a “workplace bullying” claim.) Still, if one is harassed, he is being bullied.  But are these terms legally interchangeable?  Is it just semantics that separates them?  Or do they, in fact, have different meanings.

We have traditionally associated workplace harassment with the unlawful behavior described under the various acts created by Congress to protect workers from unfair employment practices.  Legislative measures (such as Title VII of the Civil Rights Act of 1964) exist to protect workers from discrimination against age, gender, race/color, religion, national origin, disability, genetic information, pregnancy, and compensation.  It also prohibits sexual harassment and retaliation.  While this might sound like a fairly inclusive body of protection, do these seemingly well-intentioned laws really cover everything?  Should protection be afforded only to these “protected classes” for the specific violations they are designed to address?

The short answer: no.

An obvious gaping hole in employment law still remains; the door is wide open for a cornucopia of offenses screaming to be addressed.  For instance, what about the fat person, the ugly (or pretty) one, the smelly one or the annoying one?  And how about the once untouchable white guy who gets wrongfully kicked around?  These folks have no real recourse except to complain to their supervisors, who, in all likelihood are ill-equipped to handle such matters.

When I worked for New York City Transit, I witnessed bullying like it was for sport.  In fact, it was the managerial style of choice. When one of “the men” as they referred to themselves, got out of line in any way believed to be even remotely threatening, he would likely pay for it lest he fell back in line posthaste.  God forbid, he resisted for he would be shipped off to the most undesirable location, usually the place no one wanted to be and that would make his life a living hell.  In fact, that same threat was deviously employed on job interviews.  One was pretty much forced to say he was okay with working at any one of the numerous locations in the system, albeit an outright lie.  Then, once he conceded to being the flexible, indispensable best man for the job, he might well find himself in one of our little “Siberias” anyway because, after all, he said he was willing to go there.  A real Catch 22, for sure.

Was this modus operandi unto itself harassment in the legal sense – or was it simply bullying? Well, unless one individual of a particular protected class, let’s say an employee over 40 amidst a group of twenty-somethings was singled out, it wouldn’t be classified as unlawful; however, it is not less wrong and must be treated as such.  Working forever shrouded in fear of retribution is unacceptable.

Since having written Thrown Under the Bus: The Rise and Fall of the American Worker, it is amazing how many folks have felt compelled to come forward to share their workplace horror stories with me.  They, too, attest that it is the bully’s way or the highway – with no help in sight.  I pray that my book serves to lend some insight to ways in which to successfully navigate “the system” without undue repercussion.

In a nutshell, the message is this: workplace harassment has evolved to a new form of the same called â€workplace bullying’, the catch-all phrase for the ubiquitously inappropriate treatment of anyone and everyone where such behavior rises to the same egregious level of currently actionable legal claims under the law. If you can prove that which you claim to have occurred as having risen to the same degree of unlawfulness as prescribed by Congress, you shouldn’t need to be part of a protected class, just an aggrieved employee of any stripe with a legitimate claim.

Printed with permission

About the Author:  Teresa Zerilli-Edeleglass is the author of Thrown Under the Bus: The Rise and Fall of the American Worker, the provocative true story that begs the question: Is the American Dream ours for the taking, or can it just be taken away?  Ms. Zerill-Edelglass earned a Bachelor of Science degree from St. John’s University in 1989 and an Executive Masters in Public Administration from Bernard Baruch College in 1992. It was in 1988 that the opportunity presented itself for Ms. Zerilli-Edelglass to switch gears from the private to the public sector, one she enthusiastically embraced. No sooner had all of her hard work finally begun to pay off when everything suddenly went up in smoke, laying the groundwork for â€Thrown’.  Thrown Under the Bus: The Rise and Fall of the American Worker is available online at Amazon, Barnes & Noble, and through the author’s website.


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A Post-Brinker Victory for Employees: Bradley v. Networkers International, LLC

Posted on by Bryan Schwartz
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In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements.  In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.

 

Last week, in Bradley v. Networkers International, LLC (December 12, 2012)  —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.

Background

While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker.  Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal. 

Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.

Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.

In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.

Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action. 

The Court of Appeal’s Decision on Remand

Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.
 
Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform)  lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.

The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code. 

Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable.  In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.

The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.

Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.

About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.

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Workplace Harassement: The Recession’s Hidden Byproduct

Posted on by Jane Slaughter
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The recession numbers focus on the out of work, the nearly 10 percent of the workforce who are unemployed. Not counted in the stats of workplace misery are those still “lucky to have a job.”

A Labor Notes survey this month found harassment in the workplace at unprecedented levels, with a sharp uptick since the recession began. It may be that a measurable chunk of the unemployed have been harassed out of their jobs, fired rather than laid off.

Union members report increases in verbal abuse, discipline including discharge, crackdowns on attendance, surveillance, hassling to work faster, forced overtime, and a concerted effort to get rid of older workers. “It’s at a level that I have not seen equaled in my 20 years with the company,” said Seattle UPS driver Dan Scott.

As a rule recessions are a time for management to bear down in all sorts of ways, as the order to do more with less comes down the supervisory food chain.

Now, unions may be less prepared than ever to resist the harassment. In previous rounds of concessions, many surrendered work rules that had given workers flexibility or some say over their work day. Some took two-tier contracts that diluted solidarity on the job. And many older workers who knew—and defended—a less onerous workplace are gone.

Mark Bass, president of a Longshoremen’s local in Mobile, Alabama, said foremen are rushing dock workers and blackballing those who don’t speed up.

“It has not always been this way,” Bass added. “We had a large group of longshoremen retire who knew the longshoreman industry and had the union at heart. Now with the newcomers that don’t know the history and the story that goes from one to the other, we are faced with the challenge of educating our people.”

A recession is a hard time to do that. “At least I’ve got a job,” many say. And union leaders feel pressed to save jobs, not job standards. Still, some locals are hearing members’ desire for day-to-day respect.

BROWN DOG BITES

UPS made its plans for the recession clear with a video shown to workers late last year. CEO Scott Davis warned that companies come out of a recession three ways: weakened, not at all, or leaner and stronger. UPS bosses—long expert at micromanagement—intend to take the third path.

Scott, the Seattle driver, said managers are putting on the brown uniform and riding along with drivers in record numbers. From an average of three or four rides per month, he says, they’ve increased to that many per week. They choose perfectly sorted trucks, open doors for drivers, walk really fast—everything to speed up on measurement day.

“You have to fight the urge to walk as fast as they’re walking. If I had a nickel for every time he said, ‘let’s go, let’s move it,’” Scott said. “It’s perpetual chatter the whole day.”

If the numbers at the end of a ride day are higher than on a regular day, that’s proof the worker has been “stealing time.”

UPS made $400 million in the first quarter of this year, despite recession blues. Telecommunications giant AT&T is even better off, pulling down $12.9 billion in 2008. But once the AT&T contract expired April 4, says Dan Coffin, a business agent with Communications Workers Local 1298 in Connecticut, suspensions skyrocketed.

Because AT&T has a two-tier contract, management is intent on getting rid of first-tier workers. Walt Cole is a case in point. He and other Local 1298 installers were transferred temporarily to U-Verse, which installs TV and Internet lines. They brought their higher pay and contract rights with them.

“Management hated paying us $30 an hour,” said Cole. “We had things to say about work rules being violated, we filed grievances, we were a thorn in their side.”

When Cole exercised his contractual right not to work on his day off—a right not shared by the U-Verse second-tier workers—he was suspended. When he ducked into a restaurant for carry-out and forgot to lock his truck, he was put on final warning for a year—despite a 10-year record of no discipline. Now he’s fired.“When the contract expired,” Cole said, “you could almost see them rubbing their hands and saying, ‘This is the time to get rid of people.’”

SICK AND TIRED

Hospital workers, too, report that penalties are ratcheting up, with suspensions substituting for progressive discipline. A punitive approach to medication or practice errors has employees fearing for their jobs—and could pressure workers to cover up mistakes rather than report them.

Judy Sheridan-Gonzalez, a nurse at Montefiore Medical Center in New York, says nurses are harassed to punch out and finish their paperwork off the clock or to work through their meal breaks to finish on time.

At the University of Chicago Medical Center, the endowment took a hit from the stock market crash, and the president decided on 9 percent cuts to come through the recession leaner. Layoffs mean blue-collar and clerical workers are working short-handed and lunches are denied, according to Teamsters Local 743 rep J Burger.

Workers are bumping into new jobs where they’re pressured to be up to speed within 30 days. Burger said many find the environment “so nasty and hostile they said they were leaving.” The local managed to negotiate severance pay.

At the same time management created a new non-union position, “advanced pharmacy tech,” that does bargaining unit work. “They’re using them to snitch on people,” said Burger. “We’ve gone from one or two grievances every two months to 15 outstanding.”

GET THE OLD GUY

At the L’Oreal hair dye factory in New Jersey, chemical compounder Tom Walsh says management is targeting older workers to discipline and then fire. As a part-time business agent for RWDSU-UFCW Local 262, Walsh sees a similar crackdown across the wide variety of workplaces he represents.

“They write them up for every little thing, it doesn’t matter how minor, and then it progresses to the next step till they’ve got their foot out the door,” Walsh said.

Scott, the UPS steward, said each of the four drivers he represented in management reviews in two months’ time has had more than 20 years.

At other UFCW-represented companies, workers on sick leave for more than 13 weeks are fired. Walsh notes that lower managers are not immune: “They got rid of pretty much anybody over the age of 40 and brought in a bunch of young kids right out of college.”

NO ROLLING OVER

Some CWA locals at AT&T are using the fact that their contract is expired to take action against harassment. In Northern California, when two members of Local 9404 were disciplined for refusing overtime, the local called a grievance strike.

Overtime work isn’t required, after a 2001 agreement stripped it from the contract. “We had to defend that,” said President Carol Whichard, who remembers hating year after year of forced overtime as a technician in the field.

Whichard called the strike at 8:30 a.m., and by 10 a.m., 600 workers had driven their vehicles back to the garages and were holding picket signs. By 5 p.m. the discipline was removed. Workers were paid a half day.

In Southern California AT&T is cracking down on bathroom breaks for inside workers. Managers say “lost time” should equal no more than two hours a month—about five minutes a day. Local 9503 steward Wynter Hawk says managers keep track, letting workers know how much they’ve used. They call it “a courtesy.”

“I say, ‘Your courtesy is kind of like harassment,’” she said. “Do they think when they get to the end of the month people will just hold it?”

Stewards are considering a mass pee-in, in which all workers would clock out at the same time.

At UPS, Dan Scott, a member of Teamsters for a Democratic Union, counsels fellow drivers to fight speedup by following UPS’s thick rulebook to a tee. “They encourage us to hydrate throughout the day, stretch after each break and at the beginning of the day, take all breaks and lunches in full,” he said.

Scott believes the union’s untapped resource is the customers.

“People relate to their driver, how hard they work,” he said. “They are the face of the company. How much trouble would it be for a local or the international to run an ad saying, ‘UPS is harassing your driver. Ask your driver what it’s like.’ Start that chatter.”

Jane Slaughter: Jane Slaughter is the author of Concessions and How To Beat Them and co-author, with Mike Parker, of Choosing Sides: Unions and the Team Concept and Working Smart: A Union Guide to Participation Programs and Reengineering. Her work has appeared in The Nation, The Progressive, In These Times, and Monthly Review, among others.

This article originally appeared at Labor Notes, a monthly publication for reform-minded labor activists. It is reprinted her with permission from the author.


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