We need common sense discussion about gun control

We need common sense discussion about gun control. Is it me or are the knee-jerk arguments swilling around the Internet for and against gun control utterly bereft of rigorous thinking and just plain absurd?

On the control side, face it. An outright ban is not possible. Likewise, banning assault style rifles, high capacity magazines, and whatever else you can think of at this stage of the game amounts to closing the barn door long after the horse has fled to greener pastures.

On the 2nd Amendment Side, c’mon people. Arguing that gun control laws have no place in the national debate is absurd. Guns do kill people and they do it far more effectively than any other method available to the average citizen.

Saying if we take away all the guns, evil people will find a way to victimize the good people is ridiculous. Yeah, they will but not as many and not as fast. There’s a big difference between squeezing off thirty rounds of ammo in a few seconds and trying to work your way through a room with a baseball bat.

And yeah, there is a lot of gun violence in big cities. That’s not an argument to abandon gun control law.  I know, some teacher in Mississippi stopped a would-be mass murder with his .45. But we all know how badly that could have gone and how terrible our lives would be if everyone packed heat. Do you really want to leave civil society in the control of our streets to quick-draw artists and people like George Zimmerman?

So what do you say folks? How about we apply some common sense to the problem? Perhaps we could collaborate on making our country safe from the mentally ill and the sociopaths while respecting the rights of law abiding citizens?

But wait. That would require actually listening to each other instead of waiting our turn to ejaculate our talking points.

I double-dog-dare you to listen attentively before acting.

Dark Watches

I know not how to tell thee who I am.
My name, dear saint, is hateful to myself,
Romeo and Juliet, Act II, Scene 2

Screaming in whispers, weeping
in the dark watches of the night,
while everyone sleeps.

October snow broke the branches.

The power just went out again.
Fuck. Third time this week.
What’m I supposed to do now?

A univerally accepted definition of Workplace Bullying

A universally accepted definition of Workplace Bullying would help stakeholders sort out a complex issue that undermines productivity and occasions public and private health issues and has economic and social consequences.

The term has evolved into a catchall for many different forms of interpersonal strife at the workplace. Depending on where one stands, the cartoon version of workplace bullying describes heartless companies and psycho-bosses victimizing hapless employees who are only trying to make a living on the one hand and perfectly reasonable bosses dealing with lazy and overly sensitive employees on the other.

The truth lies in the middle. Advocates, victims, lawmakers and employers find themselves standing in the middle of a sea of gray with black or white blurry concepts presumed to exist beyond the horizon.

Curbing Workplace Bullying requires understanding the nature of the beast and efforts on two fronts: business culture and the law. The definition I suggested in “Defining workplace bullying” delineates a clear line between criminal and tortious behavior on the one hand and situations best addressed by company policies.

There’s s a big difference between asshole bosses and coworkers (don’t blame me that’s the technical term) and deliberate behaviors or policies that lead to personal injury, economic injury, and defamation.

Dealing with the former requires social and economic pressure to foster a culture of respect and drafting clear policies with meaningful consequences. The latter falls squarely in the realm of intentional torts.

Victories on the cultural front are arguably more effective than laws because they deal with untoward situations proactively. Therefore problems do not become criminal or tortious. Laws on the other hand, deal with the problems after the fact.

That’s the crux of the argument of my definition. Efforts to curb workplace bullying advocacy are more likely to succeed if new laws can trace their roots to existing laws. That imbues the changes with a sense of evolution rather than a radical departure. My definition gathers the core tortious effects of workplace bullying into one place: personal injury, economic damage, and defamation.

Some may complain that drawing distinctions between tortious or criminal behavior and being an asshole unfairly burdens accusers with an unfair legal standard. Either way the accuser has the burden of proof.

Nevertheless, no one will pass laws which allow the employment equivalent of the McDonald’s hot coffee lawsuit or the “Twinkie” defense.

As I said in, “Defining Workplace Bullying,” changes to the laws need to deal with the burden of proof by leveling the employment law playing field. Right now the burden is completely on the accuser.

It’s been suggested that proving intention really raises the bar. But that does not really come into play except in determining damages rather than proof of responsibility. The two standards in defamation, for example, are negligence and “actual malice.” Each has its own tests and burdens of proof.

Proof of responsibility is a lot easier. Once the effects established and agreed upon. Arguments center around determining who caused the injuries or whether the company or individual could have prevented the injuries in the first place. Like it or not negligence and actual malice are very different and the latter is extremely difficult to prove.

Once we can agree on what is and isn’t tortious, the rest falls into place. I’d like to see legislation that requires ALL companies to have:

  • Written protocols for termination.
  • Written protocols for dealing with workplace bullying.
  • A level playing field in employment law.
  • A level playing field for establishing fault

Defining Workplace Bullying

Defining workplace bullying presents significant challenges for employers and employees alike. The word “bully” conjures images of the schoolyard and name calling and therefore trivializes a very real problem in the workplace.

People all too frequently find themselves trapped in a toxic environment in which bosses, company cultures, and colleagues can make the workday a living hell. What’s more that can extend beyond the time spent on the job and affect families and the target’s health.

Get a new job! That’s what most people say. In a simple world, that’s the best solution. However, that may not be possible owing to a variety of reasons like a scarcity of jobs or deep roots in a community.

For me there’s a difference between a demanding or difficulty personality at work and someone who intentionally and systematically seeks to harm a person.

Within a certain spectrum of behavior, demanding or jerk bosses, aggressive and/or scheming colleagues, and being excluded from  “the group” do not rise to the level of bullying. Likewise, different professions have different cultures, behaviors, and rigors. What may be inappropriate in one may acceptable in another. Think drill sergeant screaming at a recruit vs. McDonald’s manager screaming at a 16 year old employee.

A while back a Tennessee lawyer I used to know (and whom I despise for his cowardice on this issue) opined that workplace bullying laws were unnecessary because the activity is a sub-class of intentional infliction of emotional distress. In as much that legal theory does not deal with all the issues. I think it’s a good place to start when defining workplace bullying.

A Definition

Workplace bullying is toxic behavior that must be (some combination of) persistent and systematic inappropriate behavior that results in (a) measurable physical or emotional injuries affecting the target’s health; and/or, (b) tortiously interferes with an advantageous business relationship. E.g., loss of employment, salary, promotion, privileges or other advantageous benefit to which the victim would be otherwise entitled; and/or (c) damages the victim’s reputation in his or her field, thereby creating obstacles to earning a living in the target’s usual occupation.

From a legal standpoint, the big questions are who has the burden of proof and how the employer’s offenses relate to existing employment law, which favors the employer.

Intentional torts, which are the category in which all of the above criteria fall, usually require the plaintiff to prove the damages rather than the defendant to disprove them. What’s more, intentional torts are not usually covered by liability insurance AND insurance policies often specifically exclude employees. This means unless the company has deep pockets, lawyers likely won’t take the case on contingency.

Regarding employment law

Most workers are at-will employees. Therefore employers have broad latitude in defining performance standards and determining whether to fire an employee. Some classes of employee enjoy protected status: e.g., you cannot fire an employee for being old, gay, a different religion, or based on gender. But just about anything else is fair game, including nearly any petty reason that occurs to the employer.

Policies vs. Laws

On the short term, the above definition would be a great basis for HR policy in a medium to large business since the company can choose to take a neutral approach to the burden of proof and define the necessary criteria to either defend or prosecute a bullying charge.

Passing laws to combat workplace bullying are much more fraught. But, I think that definition helps alleviate some of the concern arising from specious claims. The work to do so will require an multi-pronged approach that reconciles several areas of law.

Employers weigh the impact of providing health insurance: war of the mooches.

 Small Employers Weigh Impact of Providing Health Insurance, a piece appearing in today’s the New York Times weighs the impact of the Affordable Care Act on “small” businesses and provides a great jumping off point to contemplate the impact of providing health insurance and the issue of entitlements.  and interview small-ish business owners and tie the issue to the larger debate going on in the Food and Beverage sector and finally to the entire U.S. economy. The piece talks about the lack of clarity as the ACA comes on line. It also reports about the strategies of avoidance implemented or planned by employers large and small.

As far as I’m concerned, the ACA is a blunt instrument that was more about political victory than actually easing the burden of runaway health care costs. So I view this issue with a healthy dose of skepticism Nevertheless, strategies of avoidance seek to put the burden of solving this problem on others. I’m confused about the unwillingness of business owners to pool resources and come up with effective alternatives to provide affordable health care.

Here’s where I get lost:  Business owners small and large complain about entitlements, they complain about paying taxes. they resist paying for health insurance; Ethically and legally hospitals cannot refuse care on the basis of ability to pay, leaving the hospitals to absorb the cost of the services, only they don’t really because they make up the losses with government money (medicare and tax exemptions) and increased fees which come from billing the insurance companies more money because . . . they are entitled to a profit; the insurance companies pass on those increases to the consumer because . . . . they too are entitled to a profit; health insurance costs rise for those companies providing it as part of their compensation package, which exerts downward pressure on their bottom line, which in turn leads to higher prices and increased employee contributions or the loss of  health insurance benefits by reducing employee hours below the benefits threshold (see above for the effect) because  . . . they too are entitled to a profit; this in turn removes the money from our consumer-based economy, which leads to lower profits and decreased demand for raw materials both of which result in more unemployment and less demand for products; see above for the effects . . . and another ride around the economic merry-go-round because people get sick whether they are employed or not … exhale . . . .

Risks should be rewarded. All companies are entitled to profit from their investments. that’s the American way. But there are many moving parts, including worker’s buying power which is directly related to their health And the amount they pay for health care.

Nevertheless, most businesses view the issue through the narrow lens of their particular company’s self-interest and are more than willing to let others pick up the tab for the deficiencies.

There’s a double standard when it comes to entitlement. (Turn on your irony glasses folks). There’s Mooch One and Mooch Two. Who takes more and who gives less?

Is it Mitt Romney’s allegedly deadbeat 47% on the bottom end of the economic curve who mooch off the wealthy for basic needs or those on the other side who expect everyone but themselves to pay for their success?