New Workplace Police – Plaintiffs’ Lawyers Are Back

Overtime Regulations Stayed

Overview


Confluence of Conditions
American employers face a familiar but forgotten challenge. In the 1990s and early 2000s, employers feared litigation championed by Plaintiffs’ lawyers. Congress had enacted new workplace laws and employees looked to Plaintiffs’ lawyers to enforce them. During the Obama years, the risks posed by Plaintiffs’ lawyers faded as employees tended to look to the government (with leverage of activist organizations) to champion workplace rights. Everything changed with the election of Donald Trump.


A confluence of conditions has repositioned Plaintiffs’ lawyers as the champion of workplace litigation. Rising social pressure from identity politics and other competing affinity groups (including employee v. employer) permeates the workplace. Even though the federal government appears to be damping down enforcement, the stable of worker rights has reached an all-time high. The financial risks and other negative consequences of workplace litigation pose an existential challenge for most small to medium businesses. Of course, these same financial risks and negative consequences for employers are financial and social opportunities for the next champion of worker rights. This perfect social storm now encourages Plaintiffs’ lawyers to replace the government as the champion of the workplace.


DIVISION IN THE WORKPLACE
Part I of IV


Identity Politics Models Winners and Losers
The election of Donald Trump escalated the fight between left and right, male and female, rich and poor, and countless other human rivalries. As President Trump brought back “winning”, the losers became the “losers.” In response, the Democratic Party declared war on Trump and “the alt right.” The opportunity of “America’s Team” pursuing the best interests of her citizens has been replaced by group warfare.


An us versus them mentality exists within every workplace. For 21st century voters, the 2016 election marked the first vote in which everyone had something to lose. Prior elections involved efforts to gain something; e.g., racial and LGBT equality, recognition of climate change, free tuition, and an undocumented worker’s right to … In the 2016 election, every voter had something to lose.


Human behavioral studies show a natural willingness to fight harder to keep something than to gain it. The right/conservative versus left/progressive division became lodged in groups that view compromise as losing. The feminist advances triggered a male backlash. The climate change science energized the global warming parody. The right to worship somehow became enmeshed in the right to be left alone (privacy). Even the American youth who initially encouraged tolerance adopted the right to avoid being offended as a moral and legal benchmark. These affinity competitions have become death-matches with each group accusing the other of trying to steal an existing right or property.


As expected, the media highlights and exacerbates the growing division. “‘[I]t’s as if these outlets are reporting on different worlds,’ said Tom Rosenstiel, executive director of the American Press Institute and a long-time observer of American political news. ‘They often report on entirely different stories.’” (Rainey, NBC News, 5/20/17.) Politico recently headlined, “Trump scandals threaten GOP agenda”, “Dems escalate talk of Trump impeachment”, and “Trump’s Worst Nightmare Comes True.” At the same time, a Fox affiliate focused on, “Next stop for Trump is Israel, in pursuit of ‘ultimate deal.’” Identifying a source of news accurately predicts the values and beliefs of its audience.


Technology Divide
Below the radar, technology may create a source of division greater than human affinity groups. Technology divides people into techno mavens & technophobes For some, technology removes the shackles of conventions and oppression. For most, the fear of technology withdraws advantages and imposes an unfair barrier to 21st century business.


That technology can persuade and shape attitudes, beliefs and behavior has been studied for years.

  • “In early 1972, the Surgeon General’s Office of the United States National Institutes of Health announced that for the first-time scientific evidence had been assembled from a number of behavioral studies that showed a causal link between the exposure of children to televised violence and their subsequent aggressive behavior.” (CJCLDS 1972.)
  • Which World Is Real? The Future of Virtual Reality (Science Clarified 2009.)
  • “American children watch an average of four hours of television daily. Television can be a powerful influence in developing value systems and shaping behavior. Unfortunately, much of today’s television programming is violent.” (TV Violence and Children, AACAP 2014.)
  • “Violent television affects children’s behavior, study says” (NYT 2013.)



Of greater concern should be the isolation created by the virtual world. If life is better inside technology, why live outside?
“[S]ome people use broadcast and Internet media as a mental and emotional retreat and refuge. Addicts are connected to their screens; their minds trapped for hours to the exclusion of the world around them. Addicts neglect family, work, studies, social relationships and themselves. This is an addictive obsession that is human-centered and screen-deep.”
(Brain, Behavior, and Media, 2012.)


Workers threatened with “others” (i.e., the proverbial “they”) soon may have a choice to “live by choice.”

  • “VR World was two days of tips, tech and talk on what might well be the most disruptive audio-visual tech of our lifetimes.” (TVTechGlobal, 2017.)
  • “Millions of people watch eSports. Who are they?” (FORTHWiN, 2016.). “427 million people will be watching esports by 2019[.]” (ESPN, 2016.) [At esport venues, humans watch other humans compete as virtual humans competing as real humans.]
  • “Sick of the real world? 1 in 5 Brits would trade in their lives to live in virtual reality.” (DailyMail.com, 2017.)
  • “Google’s Improbable Deal to Recreate The Real World in VR” (Wired, 2016.)
  • “Are We Living in a Virtual Reality?” (eleVR, 2015.)



A Real Workplace Division
Even if VR may not be today’s surrogate reality, workers still fear the real world.

  • Over 37% of Americans choose not to participate in labor force. (BLS, 2017.)
  • The drop in employment among men has been associated with a decline in marriage rates. (Brookings, 2012.)
  • In 2015, 40 to 65-year old white males accounted for over 36% of US suicides. (Yale Global Health Review, 2017.)
  • Women say they are more tired than men. (CDC, 2013.)
  • “Dissociation, in the face of extreme, overwhelming threat, is a broad term for when all other defenses become overwhelmed, leaving one only the protection afforded by completely tuning out reality in order to preserve a sense of coherence.

    [I] see dissociation as the defining characteristic of our culture, a direction we’ve been heading in for the last few decades since the end of the 1960s[.]” (Psychology Today, 2017.)


Divisions in the workplace include:

  • Gender: male vs. female vs. LGBTQ
  • Age: baby boomer vs. millennial
  • Religion: faith vs. post-modern
  • Experience: Tenured vs. new hire
  • Location: domestic vs. international or rural vs. metro
  • Class: upper vs. lower
  • Strategy: growth vs. sustainability
  • Communication: open vs. autocratic



The differences within the workforce are real and have consequences. Group frustration and anxiety exist in the workplace. Until employers (or social norms) can overcome division with reconciliation, group frustration will raise workplace tension and anxiety. If:

  • Workplace legal rights now cover frustration experienced by a worker;
  • The financial risks of litigation really threaten the existence of small and medium business; and
  • Plaintiff’s lawyers reclaim the role of workplace legal champion,


then the existing division among workers will become the catalyst for a new round of workplace litigation.


(Upcoming segments)
Part II – Workplace Rights Have Expanded – Worker rights have expanded from traditional labor laws and now include unchartered social and technology legal rights.
Part III – Litigation Risk Is Real – The risks of litigation are life threatening to medium and small business.
Part IV – Plaintiffs Lawyers, The New Litigation Champions

Ray Stanford, Jr.
SIO Law Group LLC
rstanford@siolaw.com 

SIO Law Group
Workplace Law Alert is published solely for the friends and clients of SIO Law Group (Stanford I O Law Group LLC) and should in no way be relied upon or construed as legal advice. The views expressed in this publication reflect those of the authors and not necessarily the views of the firm.  For specific information on recent developments or factual situations, a reader should obtain the advice of an attorney.

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