Indirect Speech and Smithfield Foods Animation, 349 NLRB 1225 (2006)

Sometimes we say one thing, but we mean to convey another message.  For example, a dinner companion asks his fellow dinner companion, "Could you pass the salt?"  It's an absurd question.  Clearly he can pass the salt. What he really means is, "Pass the salt." In one Seinfeld episode, when George is dropping off his date, she asks if he wants to come up for a cup of coffee.  George turns down the offer because he does not like to drink coffee so late...later he bemoans the fact that he turned down the coffee, realizing,  "Coffee doesn't mean coffee." This phenomenon is called "indirect speech". It has been well studied by "linguists, philosophers and psycholinguists", and although not referred to by name, it has been the turning point of many a labor and employment law case.

A few years ago, Steven Pinker examined indirect speech in an intriguing article.  Pinker's theory about inquiring into somebody's ability to pass the salt is interesting, but that is a subset of indirect speech that is not central to many cases. In the "pass the salt subset" it's clear what the speaker meant which leaves little room for argument.  The subset of indirect speech that arises in the labor and employment law context is the "coffee doesn't mean coffee" type.  This is speech that has an intended message, but is worded differently so as to give the speaker what Pinker calls "plausible deniability." This type of speech leaves practitioners parsing out whether the surface meaning of words were meant or if the words delivered a subtextual meaning.

Pinker uses a game theory example of a driver who is pulled over for speeding and wants to try to bribe the policeman. The driver doesn't know if the policeman is honest or not.  If he uses direct speech, he has two options: offering the bribe or not offering the bribe. If he offers the bribe, he could wind up in jail or he could avoid the ticket.  If he doesn't offer the bribe, he will certainly pay the ticket. Indirect speech gives him a third avenue where he wraps the bribe's message in plausibly deniable language.

In this scenario, the policeman can be almost certain that the driver is attempting to bribe him.  But, because of the high standard of proof in criminal cases, if the driver could raise a reasonable doubt as to what he meant then he won't be convicted. Most labor and employment law situations involve a much lower burden of proof.  Thus, no matter what his words may mean on the surface, the speaker will generally have to show that--more likely than not--his intended message was lawful in order to be off the hook.  Plausible deniability may be enough to satisfy the burden of proof in criminal matters, but in civil matters more is needed.

In Smithfield Foods, 349 NLRB 1225 (2006), the following exchange between a labor relations consultant and an employee occurred:

[Consultant] came to [Employee] at the copy machine in mid-June15 and asked, “So, what do you think about the Union?” [Employee] said they could be better with a union and could get more respect. [Consultant] replied, “Well, I get the feeling that you don’t like the job, and if you don’t like the job why don’t you just quit.”

Was the question a threat? The Administrative Law Judge, whose opinion on the issue was adopted by the NLRB, found a violation and reasoned as follows:

The comment to [Employee] may appear weak but it does connect his feelings for the Union with Respondent’s concern that those feelings show a discontent with his job that should result in his seeking other employment. That comment tends to coerce the employee into concern for his job.

I did it um because I was hungry: Psychopath Spotting

LiveScience has an interesting article called How to Spot Psychopaths:Speech Patterns Give Them Away.  The article is about a study that examined the way that psychopathic murders talked about murderers they had committed versus the way that nonpsychopathic murderers talked about their murders. 

The researchers looked for patterns in speech that differentiated the psychopaths.  It might be hard to generalize much from the study because most of us don't talk to psychopaths about murders they've committed.  When we do talk to psychopaths, who make up about 1% of the population, it's probably about more ordinary subjects.  So it would be really useful if the researchers could tell us for instance, how psychopaths talk about the weather.  Then we might be able to tell if we should steer clear of Sally in cubicle 3.

The researchers found that when talking about their murders, psychopaths were more likely to

• Speak in the past tense (shows lack of emotional connection to the crime)
• Use dysfluencies like "uh" and "um" (apparently as a "mask of sanity")
• Use subordinate conjunctions, like "because" and "so that" (the murder had been logical and not emotional)
• Reference basic physiological and self-preservational needs like eating, drinking, and money
• Not reference higher level needs such as family or religion

The researchers are hoping to analyze social media posts looking for these kind of patterns. This could eventually lead to some kind of text recognition software doing a dragnet across Facebook, Craig's List, and who knows, maybe even Blogspot, looking for suspects.  But, going back to my point about the inability to generalize the results of the study, I think they are skipping an important step. They should see if the known psychopaths demonstrate these speech patterns when they are not talking about murder; then start combing through Facebook looking for potential psychopaths if they like. Unless they are only going to focus on posts where the user talks about committing murder.

But, maybe there are some employers who want to weed out psychopaths from the hiring list or even from their current ranks. They don't want to wait for more studies or for the text recognition software to come out.  They might start looking at applicants' Facebook posts for too many references to food and money, too few references to family and religion, too many "ums" and "becauses"...Would that be legal?  Sorting by reference to religion would obviously be problematic under Title VII, but otherwise? Could be an ADA problem.  Psychopathy is a mental disorder officially classified as "antisocial personality disorder" under the DSM IV, which means it is a probably a disability.  There are only a few psychological conditions that are specifically excepted from the ADA's definition, which include, pedophilia, compulsive gambling, kleptomania, and pyromania, but not antisocial personality disorder.





 

Violence Declining in General, How about in the Workplace?

Evolutionary psychologist Steven Pinker has an uplifting message in his new book  Better Angels of our Nature: On the Decline of Violence.  The good news Pinker brings us is that violence is down, way down, and trending down further yet.  I haven't had a chance to read the 800 page book, but I did read the summary of his arguments here and an interview he gave about the book. The summary has some good graphs and the interview was interesting.  Pinker gives various explanations for the decline, including this one:

It's partly because we care more. More and more categories of behaviors that weren't even considered examples of violence in the past are considered heinous now.
My favorite example is the recent campaign to stamp out bullying. No one less than the President of the United States gave a speech against the horrors of bullying. Twenty years ago, this would have been considered a joke. Bullying was a part of growing up. Boys will be boys. It's necessary to toughen them up; you don't want a whole generation of sissies, etc.
Now we see life from the point of view of a bullied child. We've now moved bullying from the category of ordinary childhood experience into a category of violence, and targeted it for elimination.

Here is a graph I generated with Google Insight Trends, showing the search results for "bullying" since Google's inception in 2004:

The trend of concern about bullying is not just regarding school yard bullying. Workplace bullying has been a rising topic of concern as well. Here is a graph of Google searches for "workplace bullying" in the US compared with searches for "workplace violence":

At the same time that searches for "workplace bullying" have been increasing, searches for "workplace violence" have been decreasing. This would tend to play into Pinker's general theory: severe workplace violence is in decline and now people are turning their attention to more nuanced forms of it.

That of course rests on the assumption that workplace violence is down historically. Is it?

There are of course recent examples of high profile workplace violence and certainly violence persists in many workplaces. The DOL states that 2 million workers are the victims of workplace violence each year.  They have been using that same figure since 2002, and so it's hard to read a trend into it.  The DOL's figures are largely made up of employees being attacked by nonemployees (robbers, customers, etc.).  Certain types of workplace violence are down for sure, such as clashes between unions and Pinkerton guards.  How about fights/attacks between coworkers? A lot more people with violent temperaments find themselves in jail and out of the workplace today than they did historically, so you figure that would lower the number of intra-employee fights.  The growth in background checks is likely keeping the violent out of workplaces and the mere fact that background checks are conducted likely acts as somewhat of a deterrent.

This graph from a  Boston Globe article shows that employees in 2008 were being killed less frequently by nonemployees than they had been in 1997, but just as frequently by other employees:




I imagine that the workers' comp attorneys would have as good of a pulse on this as anyone would. If anyone has some statistics or anecdotal thoughts on the subject, please drop a comment or send me an email.

Lafe Solomon on NPR Discussing Social Media

The NLRB's Acting General Counsel, Lafe Solomon was on NPR discussing social media cases with Jon Hyman and others. Hyman has an adobe player with the show here. Solomon comes on at about 16:10 and remains in the discussion until about 34. It's an interesting listen.  I agree with the title of Hyman's post: Social Media and Privacy Cannot Coexist.  Worlds collide.  Because social media is causing our private lives to be out in the open, it's more important than ever for employees to be educated about the ways in which employers can and cannot discriminate against them.