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Thursday, June 16, 2016

Cyber Bullying in the Workplace



Part Two: what it is and how to prevent it

There's been a recent movement, or rather a series of movements, recognizing cyberbullying as a widespread and serious enough problem to warrant legislation. U.S. code title 18 § 875, for instance, makes it illegal to make threats through the internet, although there are no federal laws that specifically address the problem of online harassment.  

In addition, there are state laws that go even further, particularly for the purpose of protecting schoolchildren whose classmates bully them online. California law, in a bill passed back in 2008, even allows school administrators to punish students who harass others online; a notable extension of administrative reach to outside school grounds.

But cyber bullying on the job is still a definite gray area. As difficult as it can be to separate in-person bullying from workplace harassment, it is even more difficult to draw a hard line where online interactions are concerned. Where similar behaviors apply, at least there a distinction can be made.

For instance, threats and attempts at intimidation made through social media or emails tend to be similar to intimidation and retaliation in the workplace. I.e., sending a work e-mail that contains statements of an unwanted sexual nature is still a clear instance of sexual harassment. 

But does it count as work harassment when a colleague sends a threatening email from his personal account to your personal account? You can see how the argument could be made that it's not a workplace issue, and therefore out of company hands.

Say, for instance, that a co-worker makes nasty comments on your Facebook page. Is this something worth bringing to a manager or to HR? After all, if it happens off of company property and company time, then is it really a work problem? The problem becomes even more tricky when you consider that Facebook is a very public place. Most Facebook users have their profile set to public, so that even strangers can see it and make comments. 

This is where it becomes a matter of your good judgment. In a perfect world all complaints of bullying and harassment would be taken seriously by the boss and by HR, and that would be that. But the truth is that your HR department exists to protect the company from its employees, not to protect you from your co-workers, and certainly not from your supervisors. So there's a lot that you have to do on your own to recognize, document, and report online harassment.

One of the most widespread methods of online harassment is "doxing" or revealing private documents (hence "dox") publicly online. In general, this not something you have to worry about coming from other employees. Doxing is more a favorite of internet trolls and would-be keyboard vigilantes.

Still, if you have a supervisor or a co-worker posting private information about you in a public place, then you have a serious problem. The first step is documentation. If you're receiving harassing emails, then you should make sure to save them somewhere offline (particularly if the offensive emails are coming over a work server).

If someone is disparaging you on social media, then you need to take screenshots and have them ready to show when you make your HR complaint. (Just so you know, the keyboard shortcut for screenshots is 'alt + PrtScn' on windows, and 'cmd + shift + 3' on a mac.) 

Depending on the type and severity of the harassment, the next step will be to contact your bully directly. Now this bit of advice comes with a weighty caveat; most importantly, if someone is clearly threatening you, then they are already beyond reason and you need to make an HR complaint and consider contacting a knowledgeable lawyer.

But if the bullying behavior is of a more ambiguous nature, then there is still a significant chance that your bully doesn't know that they've crossed a line. It can be easy to cross lines these days because the line between what's personal and what's private, what's business and what's pleasure, can be so blurry. A great number of bullies will respond to a firm, no-nonsense email clearly stating your displeasure with their behavior. 

If the behavior persists and, again, depending on the severity, sometimes right away— you should speak with your supervisor, and inform them of the situation, again, clearly stating how and why the behavior is inappropriate. Also inform them of your intention to make a complaint with company HR, which is your next step.

Even if you think speaking with the bully and your manager will fix the problem it is usually in your best interest to make a formal complaint to HR, even if it's just to have an official written record of the event. Remember to bring the saved evidence of the bullying with you when making the complaint, and make sure to inform them of the steps you've already taken to address the problem.

If the online bullying qualifies, legally, as harassment and you are planning on filing a legal complaint, you should still go through all the company channels available to you to address the problem. California labor law requires you to exhaust internal measures for redress anyway, and it will make your case easier to have a company record of the complaint. 

Everyone has to work, most of spend a minimum of 40 hrs. there every work, so there's no reason that a bullying supervisor or co-worker should make work miserable. So we hope you take this advice to heart and have learned a little about the options available to you. For more information, please visit:
  
Stop Bullying.gov


Originally published at Felahy Employment Lawyers

Tuesday, June 14, 2016

Right to Die Law Raises Questions of Disability Discrimination in California

disability discrimination california


California's so-called right to die law went into effect  June 9th, and its potential ramifications have been hotly debated between proponents of physician assisted death and disability advocates. Notably, the Disability Rights Education and Defense Fund, a group that seeks to ensure legal help for disabled people, has released an in-depth statement expressing vehement opposition to the new law (linked above).

The debate over physician assisted suicide has been raging since before the passage of the law late last year. Many physicians, notably, are expressing qualms about carrying out the new law, citing professional ethics and the hippocratic dictum to do no harm. 

The arguments on either side of this debate are both convincing and personal to the debaters. Disability advocates cite a preponderance of instances involving patients opting for a physician assisted death who claim a loss of dignity, and the burden for loved ones, as the major reasons for the decision. The DREDF makes it clear that impairment of function through illness, that makes one effectively disabled, does not prevent one from living a full and happy life. 

The main line of disability advocates across the country is that disability comes from society, and not just from physical impairment. They contest that the disabled don't owe it to society to try to fit and and make do, but that society owes it to the disabled to aid them. Their goal is not to make disabilities disappear, but to change our world to make room for disabled individuals. 

The Americans with Disabilities Act supports this idea by mandating certain accommodations for those with physical disability. And laws like FEHA and FLSA seek to implement and enforce this idea in cases of employment and housing.  

Opponents fear that the new law, like so many other laws, will have an entirely different effects depending on socio-economic class— raising the very real concern that low income patients will be pressured into ending their lives as a cost-effective alternative to further treatment and palliative care. Essentially, patients who don't want to leave their family with large expenses may feel forced to seek suicide when treatments are expensive and yield a small chance of recovery.

Assisted suicide advocates, like Compassion & Choices, say that terminally ill patients deserve a painless and dignified option in ending their lives. They contend that physician assisted suicide will allow patients greater freedom to spend what time they have without the fear suffering, or the thought of losing one's self in the illness. For them, it's about control and the relief that comes from having options.

The new law gives terminally ill patients, with less than six months to live, aged eighteen and older, the right to die with drugs obtained with a physician's prescription. It further stipulates that the patient must be mentally capable of making the decision, and that he/she must make two separate oral request for the assisted death drugs 15 days apart. Finally, the patient requesting assisted suicide must sign a written statement in the presence of two adult witnesses. 

Proponents believe that these rather thorough safeguards will be enough to prevent elder abuse, coercion, and regret in cases of assisted death. But the question of the new law's unintended consequences remains unanswered.

Last year, just as the law was about to pass, the Christian Science Monitor, a leading independent publication, ran a story proposing that California's new law will act as a test case for right to die laws across the country, saying that in states where such laws already exist "those who have ended their lives have tended 'to be white, well-insured, well-educated, and well cared for'.”

California, with its large, diverse population and substantial gaps in healthcare coverage may prove to be a live exercise in measuring the impact of right to die laws across the country.   

The above linked story goes on to state that low income patients, with limited access to hospice and palliative care, may be coerced by their economic situation into ending their lives prematurely. For now there is little hard evidence supporting these propositions, but the debate goes on as the new law comes in to play.   

Originally published at Felahy Employment Lawyers

Monday, June 6, 2016

Tackling the "Gig Economy" and the Tenuous Future of American Employment



A Generation That Will Determine the Course of American Employment

This is going to be a story about millenials, wait, don't leave just yet, I'm not here to make accusations of narcissism and laziness. In fact, as you may have guessed, we'll be talking about how millennial needs, opportunities, and interests will define the working landscape in America for the foreseeable future.

Better? Good. Because as the much fussed over generation starts to take the reins in business, academia, media, and most importantly, technology, the millennial generation will prove to be a pivotal one. The success of tech startups, in part driven by innovative young people, has changed the way we think about jobs.

Moreover the ways millennials have learned, over their tech-saturated lives, to interact with the world are profoundly different from how people interacted in the past. What I mean by that is, the ubiquity of personal technology effects not just what we see and how we see it, but how we think.

To quote Donna Haraway "Social reality is lived social relations, our most important political construction, a world-changing fiction." The fictions of facebook, instagram, and twitter, ever-present streams of information that are essentially figments of language, are here to stay. And their effect on everyday social life has been revolutionary.

People used to lament spending too much time on a smartphone, they saw it as a distraction from real life, but now the things we do and say from our phones are just as real as anything else. It's not just that facebook, twitter, and instagram make keeping in touch with friends that much easier, but also that having a social life without these programs becomes more difficult every day.

It should be no surprise, then, that this bleedover from fiction to reality has started to show itself in our economic lives as well. Yelp has been a powerhouse in making the social media model work for business; so much so that restaurants, in particular, are made and broken all on the site. Some small restaurants forgo an official website, relying on Yelp for their online presence.

More recently, the ride-share services Uber and Lyft have been the subject of some debate. In part for the great success they've had adapting a social media framework into a true business model, but also for what detractors see as a misclassification of employees. Not to mention the legitimate argument that both companies are operating unlicensed cabs. 

Despite widespread criticism, the ride share programs continue to be popular with both riders and drivers. Uber is particularly popular with, you guessed it, Millennials. Young, urban, cost-conscious, and hip, Uber is quickly becoming the modus operandus of the smart phone and craft beer set.  

The success of the model comes, in my estimate, from the permissible boundary between the two, employee and customer— making use of the social media model means that employees and customers stand on ostensibly even ground within the uber app itself. Riders give drivers a performance rating, but drivers rate riders as well, and both have user profiles with their photo and information.

Millennials are attracted to this seeming equality and transparency. Skeptical but idealistic, slow to trust, and valuing authenticity above all other virtues; millennial attitudes are a direct product of the dicey economic times time in which they have come of age.

The Gig Economy, or, We Can Share What We got of Yours 'Cause We Done Shared all of Mine. 

Because of the trouble they've had getting into college, paying for college, and then making a living, millennials unsurprisingly tend to be economic liberals. (And they are overwhelmingly social liberals, for a number of reasons we won't discuss here.) Even those who are politically conservative tend to be moderates. They are also fiercely politically independent, automaticallymistrustful of the status quo.

Millennials have decent reason to be mistrustful of the economic establishment, watching their parents crash (with many of them crashing hard) during the "great recession" was a terrifying wake up call. As evidenced by the millennial desire to delay everything: they stay in school longer, put off getting married longer, and wait longer to buy houses.  

Furthermore, and despite the recovery we've made since 2008, things are still not peachy for young people, as their crippling student debt and stagnant income will attest. Much of the fault lies in the fact that the economic recovery has not been an even one, with low wage jobs rising much faster than high paying jobs. 

For instance, if you are a twenty-something, just graduating from college, your prospects will probably look something like this: 

Option A— find a white collar office job that will pay you just below what you would be making in the mid 1990's, and work 60–70 hrs. a week for two years before you burn out and start the process over again at a different company, sometimes at a reduced rate.

Option B— Take two or more part time jobs that will work you 50+ hrs. a week at just above minimum wage with no benefits, no advancement, no set schedule, and, it goes without saying, no job security.  And if you don't like those options you can always return to school to earn a professional degree, racking up $50k–$60k in debt, just to funnel back into option A at either a slightly increased rate or in slightly improved conditions— choose one.   

Small wonder, then, that under-employed millennials have turned to services like uber, lyft, and any number of online talent pools in an attempt to make ends meet. The fashion now is to call this kind of ad hoc employment "gig" work, and the industries that rely on it make up the "gig economy."

And it's not just the youngsters participating in this new kind of work. Uber, for instance, according to an internal survey, has a higher percentage of drivers over 50 than 18–34 year olds. 50% of all uber drivers are married, 46% of them have children, and 25% use Uber earnings to support a relative.

These findings offer a surprising contrast to the popular image of the Uber driver as a college student working part time for beer money. Instead, this kind of work is becoming a source of necessary income for lots of people, across the demographic board.  

The new terminology that we've developed to describe this work is necessary because the gigs one can find these days are distinctly different from past examples of freelance jobs. Freelancers have contracts, terms, fixed rates, and benchmarks that ensure they get paid.

This gig economy is more like working the docks in Elia Kazan's On the Waterfront. Instead of standing around the dockyard, you log into an app and wait in the car, or login online and wait by your laptop until, hopefully, your name is called.


long beach employment lawyerXL
Uber drivers of days past. Wikimedia Commons.

Unlike real freelance work, there's no negotiating with the gig economy, because you compete for the opportunity to work, and with Uber alone valued at $50 billion, it seems clear who benefits from this transaction. 

Proponents, including the companies themselves, will be the first to say that this type of work is not intended to be a regular job, but as a supplement to regular income. But with over 1 in 3 American workers classed as freelancers, their credibility in making such a distinction is tenuous. While they may not have intended for Uber to be regular income, that's how it's being used. And this shows no sign of changing.

The arguments for gigging and the arguments for "at-will" employment are much the same, however, it is becoming increasingly evident  that "right to work" does not include the right to know whether your rent will be on time. 

Proponents of this system herald it as an open marketplace where the best information technology meets sharp and hungry creatives wherever they are, offering endless opportunity for those with the motivation to take it. In part, it is the incarnation of bootstrap theory— a free market playground where gumption, hard work, and smarts determine financial outcomes. 

The Uber Bubble  
   
Despite it's high valuation, it has been difficult to tell whether or not Uber is actually making any money. Certainly its owners are making money, but the company, and therefore the essential model of the gig economy, may in fact be unsustainable.

Reporting epic losses in China, Uber, not uncharacteristically of tech startups, prospers on a bubble of optimistic speculation, carried along by its substantial pop culture presence. Like the ubiquitous predecessor platforms Youtube, Twitter, and Facebook, Uber's valuation is a product of its nigh-universal presence, rather than hard dollars.

But with Facebook and Youtube remaining monstrously popular, even socially necessary, it is very likely that presence, ubiquity, user base, and popularity are all at least as valuable as cash. But web platforms in general, and Uber in particular, are consumer products and depend desperately on a large base of users wielding disposable income.

Of course one of the reasons why Uber has become so popular in the wake of the recession is that it lies at a salient intersection of price and convenience. Still, unless incomes start rising across the board, and particularly for struggling millennials, there's no telling if demand for Uber rides will increase. And the company does seem to be hedging its bets on increasing demand, particularly in light of its gamble on the precarious Chinese consumer middle class. 

And the problem lies not just with Uber. The key difference between the social media model and the gig economy is where the money comes from. Facebook , Youtube, and Twitter are based on a targeted-ad model that generates passive income from advertisers who want to reach customers wherever they are.

This model is broader and more resilient than the Uber model. Uber relies on selling a product directly to the consumer whereas social media sites are platforms first and advertisers second. 

Talent pools like Toptal and Upwork suffer from a similar weakness. They are primarily a source of cheap creative work like web content, graphic design, and video editing. All of which depend, again, more heavily on consumer demand than the platforms they've adapted.        

The progress we've made towards economic recovery since 2008 means that there's still enough money kicking around to support the gig economy. But as growth of low paying jobs outpaces higher paying ones, the gigsters are eating into their own consumer base. Simply put, if things keep going the way they are, the gig economy and the workers it utilizes will form a negative feedback loop wherein low wages drive down demand, leading to fewer gigs, and so on.   

Proponents of gig work are quick to laud the flexibility of working hours and the capacity to determine one's own work/life balance. But it's impossible to have any work/life balance when you're not making enough to live on. And, as the survey says a significant enough number of Uber drivers depend on that income to raise some serious concerns. 

As a final note, having worked freelance gigs off and on for years, freelancing is occasionally fun, but I can't even imagine trying to make it work as a primary source of income; the fun of working from your favorite coffee shop quickly dries up when you don't have the money for coffee.

Originally published at Felahy Employment Lawyers