Strikes in Cyberspace: Guest Blog

Guest Blogger: Amanda Reilly

In September of 2007 Italian IBM workers went on strike. What was unusual about this event is that it was very widely publicized as a strike in Second Life; Second Life is the most well known of the virtual worlds which are synchronous computer networked worlds where people are represented as avatars.

A video detailing the sequence of events can be viewed here. http://www.youtube.com/watch?v=dja5rlSGo0s

The short version is that as events transpired 1853 persons joined “the strike” from 30 different countries for 12 hours by logging onto Second Life as avatars. The IBM business island in Second Life was occupied by these “strikers” and shortly after that closed, and a meeting of IBM executives which was taking place in Second Life was suspended. Twenty days after this event the Chief Executive Office of IBM Italy resigned and a union agreement signed.

There is certainly no doubt that the “strike” was a creative, interesting attempt at utilising new media for purposes of publicizing and communication industrial action.
However, it would premature to suggest that this is the wave of the future as there have not been any subsequent “strikes” in Second Life. Still it is interesting to speculate on the legal and other implications of this event.

One question I have is whether it was really a strike in Second Life? My view is that it was not. A strike is generally understood as a work stoppage. The Italian IBM workers may have stopped work but they did not do so in Second Life. They stopped work in Italy where their physical bodies were located.

Perhaps the so-called strike in Second Life could be seen as akin to a picket? As reported, there some disruption to the affairs of IBM in Second Life when the IBM business island was closed and a meeting occurring there was disrupted by an invasion of avatars. This does raise a potentially problematic issue. Picketing is generally legal in a public space but arguably Second Life is a private space rather than a public space.

Importantly, even if the avatars who invaded the IBM Second Life Offices can be seen as akin to illegally trespassing picketers it would be very difficult to punish or prevent this in any significant way. Participation in this sort of activism is very low risk compared to an actual physical picket which has real potential for violent consequences for participants. The physical bodies of those represented by the invading avatars were safely at their computers dispersed over 30 different countries. In fact, they need not even have been at their computers since it is possible to install a programme to click a mouse button every few minutes which has the effect of keeping an avatar logged into Second Life without the need of any human intervention or observation.

I wonder if perhaps the action taken by the avatars in Second Life was, in fact, more akin to defacing a bill board? The purpose of IBM presence in Second Life is arguably for advertising and public relations purposes rather than it being a genuine place of business. While it’s true a meeting of IBM executives in Second Life was disrupted it seems likely that this could very easily have been reconvened away from Second Life by conference call.

New Zealand Labour Law Society

The New Zealand Labour Law Society was formed in late 2009 and has just held its first AGM. The Society will be launched in Auckland on June 3rd. Details will be posted later.

The purposes of the Society are to:
(a) to promote the study of, and exchange of ideas about, labour law and social security in New Zealand and at the international level;
(b) to provide lawyers and others working in the fields of labour law and social security with a forum for discussion and debate;

All persons with an interest in labour law are welcome to join for a mere $25. Contact Michelle D'Souza [michelle.dsouza@aut.ac.nz] who can send you a membership form

Workplace Bullying

The recent release of the report by Professor Bentley and his colleagues on workplace bullying puts the spotlight on a problem that has, over recent years, increasingly been recognised as a major workplace issue. One obvious question that arises is what legal redress is avaiable to victims of bullying? The Minister of Labour, Kate Wilkinson, is reported as stating that the employment institutions can deal with claims of bullying through personal grievance claims. I agree with this comment although with some caution and reservations.

In some ways bullying stands in much the same position as sexual harassment did two or three decades ago. Society and the courts were initially slow to recognise both the nature and extent of that problem and to react positively in dealing with it. That position is now vastly improved. That is not to say that there are no problems in bringing a personal grievance based on sexual harassment - there are but they tend to be problems that are endemic to legal processes such as satisfying the burden of proof and the adversarial nature of the grievance process rather than a failure to recognise the underlying problem.

That both the Employment Court and the Authority take bullying seriously is clear if one examines cases over recent years. In a blog such as this it is not possible to provide a detailed legal analysis but a recent example is provided by Judge Shaw's decision in Clear v Waikato DHB [2008] ERNZ 646. Judge Shaw stressed the obligation of employers to provide a safe system of work and an obligation to properly investigate allegations of bullying. She also made the important point that such an investigation must consider the course of conduct as a whole (the 'persistence' aspect of bullying) and not focus on individual events in isolation. Other cases also indicate that both the Court and Authority have a good grasp of the problems posed by bullying. However in the absence of overt and obvious conduct such cases are not always easy to decide. The problem of "management style" for example poses real problems. One persons need to manage poor performance can be viewed by aother as bullying. However in general the Court and Authority seem to have taken a sensible and pragmatic approach in such cases.

As yet however the Authority and Court do not seem to have had to deal with the most intractable form of bullying, the workplace psychopath. Such bullies are typically confident and assured and likely to be supported internally by their own managers. Most practicing labour lawyers will have come across such cases and will know the difficulties they pose. and the severe nature of the trauma faced by the employee (or former employee) who often has difficulty even appreciating why they have been victimised. Formal proceedings merely increase the trauma and the result is often an indequate settlement with the bully suffering little or no consequences.

In the most insidious cases the character of bullies may be not fully appreciated by those hearing cases. Perceptions that victims are merely over-reacting to strong (and by implication necessary) management; that they are unable to adjust to new requirements or that bullying is just a “brand-new fashionable" escape clause for poor performance can have a sufficient grain of truth to cause confusion and potential bias. False perceptions of who might be telling truth based on the demeanour of witnesses are of particular concern: “he conducted himself favourably and was in charge of his emotions...” or “she maintained her dignity in responding [to allegations]. That is not the mark of a bully” show little appreciation of human conduct especially when the inevitable nervousness and confusion likely to be exhibited by the victim are seen as indications of lack of credibility.

Is the law an obstacle that adds to the other obstacles faced by victims of bullying? The answer is currently yes, but partly because of problems common to all victims in the legal system. Victims may face a high burden of proof to establish bullying and they must also be aware that the bullies are able to use their own legal rights to counter-attack, something that must also be of considerable concern to employers. The requirements of natural justice have the side-effect of exposing the victim (or more likely victims) to further abuse if the allegations are not able to be established – hence the reluctance to make formal complaints especially where, as is often the case, management and HR departments are ineffectual or hostile.

That being said, however, the personal grievance process provides the Authority and the Court with the tools to deal with cases of bullying and the effectivness of these bodies will increase as more cases are brought.

The personal grievance procedure provides as good a legal solution as is likely to be obtained but as with harassment it is second best protection - the best is that employers ensure that they are fully aware of the nature of workplace bullying and that they adopt a zero-tolerance policy towards it.

The report is avaible at; http://www.massey.ac.nz/massey/fms//Massey%20News/2010/04/docs/Bentley-et-al-report.pdf

Readers may be intersted in a paper I wrote with Neisha Cbhibba on this topic in 2008: Intractable issues in the Workplace: Dealing with Workplace Bullying, Typhoid Chris and Stess 

Employee harangues in the land of the free

Readers may be aware that the US Supreme Court recently struck down controls on corporate political spending as an unconstitutional limit on free speech A recent article reports on the downside of that decision for employees. The article by Paul Secunda points out that:

"Already, American employers are increasingly using the captive audience technique to force their employees to learn about the employer’s political and religious views. During these sessions, employees may be forced, at the risk of losing their jobs, to listen to their employer’s perspective on the latest political and religious issues of the day"

The author gives examples of ranging from Wal-Mart conducting mandatory meetings encouraging employees to vote against Obama because of his support for the Employee Free Choice Act to increasingly intrusive employer-backed workplace christian evangelising.

He points out that:
“no … federal law exists that prevents corporations from requiring, on pain of termination, that employees attend one-sided partisan speeches, rallies, videos, or other events that advocate the election of specific candidates or parties. Nor is there any law that prohibits corporations from requiring that supervisors engage their subordinates in express advocacy conversations on work time, and requiring that employees participate in such conversations….There is no requirement that opposing candidates be offered equal time, or even that employees themselves be permitted to ask questions or voice their own opinions.”
Another reason why personal grievance rights need protection?
See the paper at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555427

Government discussion paper on PGs

In case you missed it the government has just released its discussion paper on personal grievances. Submissions due by 24 March - a whole 3 weeks to consider and respond to one of the core areas of employment law!

When I read it in detail I will comment. However even a brief glance over it shows a strong focus on employer concerns with loaded questions that will encourage criticisms of the current law. Interestingly there is virtually no mention of why the PG protection exists or of the problems that employees might face in taking a grievance. Even the basic notion that employees should have a clear right to protection from unjustified and arbitrary actions or other actions that cannot be objectively justified seems to have been overlooked.

The Ministers press statement can be found at the following link which contains a link to the discussion papers http://www.beehive.govt.nz/release/submissions+sought+personal+grievances

personal grievances and the mythical grievant

I suspect that the proposals to reform personal grievance law will help fill out this blog over the next few weeks. One of the most common criticisms of the personal grievance process is that it favours form over substance and that totally undeserving employees gain large payouts when clearly guilty of serious misconduct or even criminal conduct. One such example is the employee who was held to be unjustifiably dismissed for theft because the employer never told him that theft was misconduct. John Hughes wrote an illuminating article on this mythical case over a decade ago (The Grievant Who Never Was [1998] ELB 136). Apart from showing the mythical employee left no forensic record, Hughes gives examples that suggest, if anything, that the courts tended to lean in the opposite direction when theft or unauthorised taking of property is suspected. As Hughes points out the courts have upheld dismissals or reduced remedies to nil even where there have been serious procedural failings. Generally all that is asked of employers is that there is a proper factual foundation for their action. Hughes also makes the point that "demonstrably inaccurate political statements" and a misunderstanding of case law are a poor basis for legal reform.

Fast forward to early January this year and the sensationalist headline that appeared in a number of news headlines: "Worker fired for supplying drugs gets payout". A spokesperson for the employer concerned was apparently quoted saying that "employers are being shafted" and "its so unbalanced its not funny." The most issue of NZLawyer has an interesting article on this case "Don't believe everything you hear.." written by Aaron Lloyd and Bridget Smith of Minter Ellison (not previously suspected of being a hive of left-wing activism) who clearly went to the trouble of reading the case before commenting. What their analysis shows is clear procedural failures and a failure to properly define why the employee was being dismissed. Briefly, the employee had admitted supplying marijuana to a co-employer at some stage in the past and the employer then suspended and later dismissed him. The authors sum up the problem as follows: "the company failed to properly establish exactly what is was that Wilkinson had done. In particular it was not clear whether there was a recent alleged sale, when any previous exchange of drugs had occurred, or where any alleged sale or exchange may have taken place. In particular the company took no steps to ascertain if the activity...was inside or outside work hours, or whether or not it was on company premises." It seemed all that was established was that sometime in the past the employee had given a colleague drugs outside of work. There was no proper investigation, no opportunity to respond and no proper connection established between the non-work conduct and the work. As the authors note the fact that (non-work) actions amount to a criminal offence does not by itself justify dismissal.

This was a clear example not of employers being shafted but of an employer failing to follow even the most basic procedural steps - in spite apparently of having the benefit of HR advice.

In my next post I will provide an idiots' guide to procedure. For the moment I will close with a statement on its importance:

Megarry J explained this in John v Rees [1969] 2 All ER 274 at 402:
"It may be that there are some who would decry the importance which the Courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has had anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

Where the US goes....NZ follows?

Today's New York Times (17 Feb) reports that the IRD are "starting to aggressively pursue companies that try to pass off regular employees as independent contractors". The report notes that companies are using so called independent contractors to avoid paying a range of taxes and the like including social security, Medicare and unemployment insurance. The report also states that "several studies have indicated that, on average, misclassified independent workers do not report 30 percent of their income". This enthusiasm is driven partly by budget deficits, the report notes that California’s attorney general is currently seeking $4.3 million from a construction firm and that last year he won a $13 million from two companies that had misclassified 300 janitors, cheated the state out of payroll taxes and not paid minimum wage and overtime, and partly by the appointment of a new top law enforcement official in the Labor Department.

As usual of course employers blame the uncertain state of the law for this problem - rather than the fact they are trying to get the best of two worlds. If I recall correctly Chief Judge Goddard once said something to the effect that if employers stopped trying to see how close to the wind they could sail and instead steered a safe course such problems would melt away. These problems are of course not unique to the US and are well known in NZ where the same problems exist with both tax and the avoidance of minimum employee protections. I have not followed our own IRD's moves on this matter but I did note that the Department recently appealed the decision in Penny v Commissioner of Inland Revenue. This case involved doctors providing their professional services through a trust structure to limit their tax liability - the Commissioner argued that the salaries received via the trusts were artificially law. Perhaps there is also a new enthusiasm in NZ!