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Employment Rights Lawyer Discusses 2011 National Business Ethics Survey 'Workplace Retaliation on the Rise'

The more things change, the more they stay the same.

I thought it was interesting to peruse the results of the Ethics Resource Center, in its "2011 National Business Ethics Survey." Some of you may be fans of some of Adam Sandler's work. One of my guilty pleasures is watching Billy Madison whenever I get the chance. I know it is immature, but no matter how much of an old man in my practice I have become, there are certain things that it's fun to giggle over.

Anyway, I digress. There's a scene near the end of the movie where he's going to have a debate with an unscrupulous and dishonest "corporate weasel" in front of an auditorium. They have to choose categories of questions the opponent will answer. In order to discomfort his opponent and knowing that his opponent has no business ethics - or at least if he does, they're all bad ethics - Billy Madison chooses the category of "business ethics."

What follows isn't nearly as funny as the paradigm the question sets up. Clearly, the "joke" in the script is that most corporate types wouldn't know business ethics if business ethics bit them on the rear.

As an employment rights attorney, I'm sadly well acquainted with the current paradigm (and let's face it, it's not so "current," since it's been like this since one caveman decided to open a spear shop) of businesses pretending they have ethics, and saying they have ethics, and spending billions on commercials about their ethics, but actually having none. Businesses assume that most Americans are stupid. P.T. Barnum assumed the same thing and sadly, more often than not, the vast majority of American voters prove him right. Most businesses assume that simply saying over and over that they have ethics and that they do the right thing and that you can trust them and believe in them, will actually work. And you know what? It mostly does, because the politicians that constantly apologize for and advance the corporate agenda get elected more often than not. And by the way, I speak of politicians on both sides of aisle, though certainly, corporations have on the whole gained more ground against individual rights with republicans than they have with democrats. I'm just saying that there is no guiltless party out there except perhaps the green party, and they don't have a shot.

As a consequence, businesses don't have to work very hard in order to be perceived as having ethics they actually don't have. It always amuses me - and saddens me - at how virulent the American "shock response" is when a TYCO or an ENRON or an AT&T WorldCom debacle blows up. Really? Are people really so oblivious to what a corporation actually is that they are truly "surprised" when a corporation's servitors essentially worshipped the gods of darkness?

Anyway, the Ethics Resource Center publishes a "National Business Ethics Survey" every year. If you care to see it, the Library of Congress cataloguing publication data is ISBN 978 0 916152 17 8. They say that this is the seventh in series of reports that began in 1994, so I assume they don't necessarily do one every year.

What's interesting is that there are a number of corporate "sponsors" that suggest to me that this group might be somewhat myopic toward corporate America. I see fuel companies, defense contractors and insurance companies, so this is not an all star cast of worker friendly parties. So I suppose anyone would be justified in assuming that what this survey purports to report is probably a bit "tainted" by some "spin."

So allowing for that, it's even more surprising that the survey has to admit that "workplace retaliation" for reporting wrongful conduct is, alarmingly, on the rise.

The actual statistic is that more than one in five employees (22%) who reported misconduct say they experienced some sort of retaliation in return. This compares to 12% who experienced that retaliation in 2007 and 15% in 2009.

A business apologist would say that this is simply more people perceiving that they're being retaliated against. Sure, that's one way to look at it. Another way to look at it - the right way given what I do for a living - is that retaliation is on the rise because businesses are getting tired of having to account for themselves. They sense that their "time has come," that they've managed to push the "left wing" into the center and the "right wing" way the hell out to the right. They're getting tired of having to even pretend that they care.

The workers surveyed reported what we see at our office all the time: co-workers ostracizing them, sabotaging their efforts in small but over a period of time consistent ways, reduction in responsibilities, transfers to dead end situations, increased levels of discipline or "micromanaging," verbal abuse by supervisors, "the cold shoulder" from both co-workers and supervisors, exclusions from decision-making, outright retaliation, demotion or denial of overtime, not being fairly considered for promotions or raises, hours being cut, or online harassment in intra or extranets.

What a shock.

I have said this in many blogs before, and if you care to laboriously search them, you'll see this consistent theme re-emerge again and again.

"Corporations" are inherently evil. I don't mean that really, but almost. A "corporation" is a legal fiction designed to insulate individuals from what they may do in service to the goal of the "paper creature" that the corporation represents. This is not an insignificant distinction.

Human beings are basically, and for the most part, unless significantly stressed, tested or pushed, "decent." Only recently evolved from our primate elders, we favor community, generosity, kindness and peace neurologically if not philosophically. Put simply, decency works for us, as a species; it's the reason our strain of primate survived, and others didn't.

If you take three people who form a business and tell them that each one will be individually liable both civilly and criminally for everything that their business does, and that if their business borrows money and doesn't pay it back or otherwise defrauds or cheats investors or lenders, that they will each have to give up their personal property to satisfy those debts, guess what happens?

You guessed it: automatic business ethics. Why? Because while decent, that decency comes, on a primal level, from self interest. They're not going to do things to cut their own throats. But along comes the corporation, and guess what happens now? Now, the corporation takes the blame and each individual wrongdoer, who would otherwise be personally liable for what they've done, gets to walk away from any criminal or civil liability for what they do in service to corporate goals (read: do anything to make money for the company and it won't fall on your personally).

With the increase in corporate power as expressed through pet creatures in the Congress, and as the "left" keeps getting dragged to the middle and as the right wing keeps moving further out to the right, corporations, banks, chambers of commerce, insurance companies, defense contractors, and other powerful vested interests are going to continue to "push for everything" they can get at your expense. It's almost sociopathic, in a way: the very people that make up the corporations are, individually outside of the corporations, being victimized by all the other corporations as well as the one for which they work, but somehow, everyone stays blind until they end up on the wrong end of the corporate stick.

Then they call us, and as sadly their eyes open, we need to try to get to a jury and explain what happened. For now, the right to a jury trial in New Jersey for most corporate wrongdoings still exists. I hope that lasts.

I also hope that the legislators that constantly apologize for corporations by turning a blind eye and a deaf ear read the report of their subject organization and draw some alarming conclusions therefrom.

Maybe people are also getting fed up, and are reporting more wrongdoing and challenging the retaliation directed at them.

Just some thoughts about "business ethics."

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