And Your Little Dog, Too: The Librarian of Congress Gives Us A Lesson in Constructive Termination
Remember when the Librarian of Congress issued a press release about how Maria Pallante was being promoted from the Register of Copyrights to something that sounded awfully functionary–and not a promotion. I don’t know how the Librarian runs things, but it’s not exactly industry standard to lock someone out of their email account when you’re promoting them.
Notwithstanding the Librarian’s press release on Friday, we now know that Pallante turned down the “promotion” and has now resigned.
Thanks to the vigilant journalist Robert Levine, we now have access to the memorandum from the Librarian of Congress to Maria Pallante that prompted her resignation. And it sure looks like what’s called a “constructive termination” to me. (See California jury instructions for “constructive discharge” or “constructive termination”.)
The essence of constructive termination is that it is essentially the same as firing the person, except you don’t. You just move them out of their current responsibilities, give them tasks for which they are unsuited or that would radically underutilize their talents, move them to different surroundings or offices, take away their staff, and severely limit their contact with others, especially persons senior to the person doing the constructive termination.
The idea is that while you haven’t actually terminated them, you’ve “made their lives miserable” and created a hostile work environment that any reasonable person would resign from.
This is usually done in retaliation for something the employee has done that angered their boss–you know, like writing a memo for Members of Congress against full work licensing or opposing the FCC’s position on set top boxes.
The in house lawyers usually manage to head off this kind of thing at the pass, but occasionally an inexperienced executive loses their mind and walks right into a constructive termination situation because they are too bull headed to listen to their lawyers. Those cases are costly and usually nasty.
So here’s the relevant parts of that memo from the Librarian of Congress to Pallante:
Effective today, I am reassigning you to the position of Senior Advisor to the Librarian [meaningless title–check]. I need your expertise on the application of copyright law as I plan for the Library to expand its service to the American people by making the national collection as widely accessible as possible and ensuring that it includes digital works as well as traditional materials. I want to be sure that we execute these plans in full consideration of both the special provisions that copyright law makes for the Library of Congress and our responsibilities to copyright owners. Your expertise will be very helpful in accomplishing these goals. [That last is the kind of thing you put in one of these memos when you know the opposite is true. If her expertise was so gosh darned helpful, then why is she being moved?]
According to analysis from the HathiTrust [a repository of digitized works from Google Books and the Internet Archive that was sued by the Authors Guild], as many as 50% of the books published in the U.S. between 1923 and 1963 may be in the public domain. To maximize our ability to make the national collection available online, the Library needs a well-defined, efficient procedure for determining the rights status of books first published between 1923-1968.
Please complete an analysis of the various strategies taken by other organizations in determining the copyright status of published U.S. books. Develop a legally sufficient and efficient procedure that Library reference staff could follow to clear books from this period for digitization and online distribution. Document the approach in an easily understood and visually engaging manner that issuitable for publishing on the Web….
I would like you to undertake a comprehensive study that identifies new and sustainable retail opportunities for the Library and examines best practices of retail operations in a variety of cultural institutions….[selling t-shirts?]
Please consult with David Mao about deadlines [enter the short leash]. Each week, please provide David and me with a report on the activities you’ve undertaken on these assignments. [Sounds like David Mao is her direct report, right? I thought this gig reported to the Librarian] If you need research assistance, contact David or me before tasking anyone. I do not anticipate that this assignment will require any communications with Members of Congress or congressional staff. I am arranging suitable office space for you and will arrange for you to complete the move from you’re your [sic] current office to the new space by Oct. 31, 2016.
And there you have it. Pretty good case for retaliation constructive termination, although we expected better from a senior government official.
You’re not in Kansas anymore.