In Workplace Anonymity, Professor Jayne Ressler takes on the intersection of two critical workplace issues: toxic work environments and employee privacy. Citing workplace toxicity in the form of harassment, abuse, wage theft, and risk exposure among other things, Professor Ressler notes the failures of agencies like the Department of Labor, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration, as well as government agencies and labor unions, to redress much of the toxicity that has fueled what has come to be known as the “Great Resignation” as the nation reeled from the pandemic.
The piece posits that fear of retaliation engenders a culture of silence around abuse and sets about examining reporting mechanisms. Ressler seeks to complement the suggestion of legal scholarship that employer access to certain private employee information be curbed, with a proposal “that uses information restrictions to report and document workplace misconduct ex post,” and proposes “anonymous reporting mechanisms concerning workplace misconduct” that would facilitate workplace redress and reform without the threat of retaliation. (P. 1497.)
I particularly enjoyed the organization and structure of this piece, proceeding as it does from the premise that work occupies a central role in the lives and identities of Americans. It then analyzes four categories of workplace misconduct: 1) wage theft, 2) invidious discrimination, 3) health and safety violations, and 4) challenges to high earning employees. Ressler argues that underreporting of workplace misconduct stems from victims’ or others’ fears of reprisal and demonstrates the inadequacies of both extant reporting mechanisms and retaliation law.
Finally, after the piece discusses current anonymity practices involving litigation plaintiffs, it posits its proposed solution: an expansion of anonymous reporting in the workplace to expose misconduct while protecting reporters. The piece rounds out and closes with a brief discussion of employers’ concerns about due process and principles of fairness and points to certain situations in which anonymity fails to be effective.
Overall, the piece presents a well-rounded and well-reasoned look at a somewhat intractable problem and injects some common sense solutions into the analysis, while being circumspect and realistic about the problem’s persistence. In doing so, Ressler provides an excellent discussion about the centrality of work in American life and culture. It raises issues and whole conversations about persistent workplace abuse and toxicity, and its analysis and proposal are thoughtful and worthy of serious consideration.
Significantly, the article combines personal anecdotes with well-researched documentation of trends to establish discussion points like pervasive employer misconduct, emotional and physical threats in the workplace, and the nature of victims’ often well-founded fear of reprisal when deciding whether to use reporting mechanisms.
Of particular note is the article’s section on employee concerns regarding retaliation and reprisal. This section lays bare the stark impact of the weaknesses in the law and the frailties of human nature that make this fear well-founded, documenting the phenomenon with both precision and humanity. “Approximately 60 percent of workplace misconduct remains unreported,” writes Ressler, “the driving reason for this silence is fear of retaliation.” (P. 1517.)
By breaking out the underreporting of various types of misconduct and going into depth in each, the piece exposes the specifics around so many types of hesitancy: that when it comes to reporting wage theft, health and safety violations, invidious discrimination, race discrimination, gender discrimination and sexual harassment, age discrimination, and what Professor Ressler terms “perils for the privileged” – and gives a comprehensive view of workplace underreporting. Professor Ressler’s ensuing exposure of the deficiencies of reporting mechanisms, safeguards, and whistleblower protections is equally eye-opening. Her discussion of anti-retaliation law is fresh and current.
Finally, the article’s main contribution to the literature is its review of the existing anonymity solution and Ressler’s proposal of a fresh, more comprehensive one. Current protocols that can protect the anonymity of litigation plaintiffs and provide for the extrajudicial reporting of misconduct provide the inspiration for the expansion into anonymity shields when reporting employer misconduct.
“Given the various hazards confronting the American worker, a robust system of anonymous reporting of workplace wrongdoing should be developed and implemented,” Ressler writes. “Furthermore, employees might fear alerting their employers about workplace issues that are not necessarily illegal misconduct but undesirable.” (Pp. 1545-46.)
Through a comprehensive discussion of extant protections, hypotheticals, and policy arguments, Professor Ressler makes a fine case in the context of each area of misconduct that she has previously identified and addressed. She also troubleshoots her own proposals by contouring and examining the limitations of anonymity and setting forth issues of fairness to employers that may pose problems, or at least countervailing concerns, as her proposals are implemented.
All in all, Professor Ressler, herself, summed it up perfectly when she wrote,
Broad categories of workplace misconduct surveyed in this Article, including wage theft, health and safety violations, and invidious discrimination, are all much more prevalent than what workers report. […] Under proper circumstances, and with adequate protections for employers in place, anonymous reporting could become a fundamental means to increase documentation of workplace misconduct–an essential first step toward needed workplace reform. (P. 1560.)
In this age, the intersection of workplace abuse remediation and workplace privacy seems a forward-thinking place upon which to set our sights.
