Jeff Schmidt
27 July 2000

State Rejects Physics Today's Charge of
Employee Misconduct

The State of Maryland Department of Labor conducted a surprisingly detailed investigation into the circumstances under which Physics Today fired me. On 26 June 2000 the department issued its "determination," rejecting the magazine's claim that I engaged in misconduct on the job by writing Disciplined Minds.

The investigation was prompted by my request for unemployment benefits. Eligibility for such benefits is limited to people who lose their jobs "through no fault of their own." So if you quit your job or are fired for misconduct, you may not be entitled to benefits.

An unemployment office examiner explained to me that "some employers send us information and indicate that they do not wish to dispute the claim." Physics Today didn't do that. Instead, the magazine sought a ruling in its favor, which would not only punish me further and save the magazine money, but also give the magazine political support in the form of third-party validation of its action against me. Thus, Physics Today charged me with misconduct, telling the state that "The employee admittedly used company time to work on a personal project over an extended period of time." The state then had to investigate, to determine independently whether or not I engaged in misconduct.

The centerpiece of the investigation was a hearing that took the better part of an hour, during which I offered a very different theory of why the magazine fired me. I said that Physics Today fired me for political reasons -- specifically, management didn't like the radical content of the book and was looking for an excuse to get rid of me because of my workplace activism. Department of Labor examiner Tasha Owens conducted the hearing by telephone. I waived my right to representation, figuring that I could present the facts as well as anyone. Owens interviewed me first, for 28 minutes. To test the company's claim, she asked me questions about how much time at the office I spent writing the book. (Answer: A portion of break time.) To test my claim, she asked me questions about whether or not the company ever asked me how much time at the office I spent writing the book. (Answer: No, they didn't seem to care about that.) At the end of the interview, she scheduled me for a follow-up interview to give me the opportunity to rebut points that Physics Today would make in its interview.

However, Owens didn't call at the appointed time, and so I called her and asked why. She said, "There was nothing to rebut." Interestingly, Physics Today and I agreed about what I did, and disagreed only about whether or not my actions constituted misconduct. AIP, she said, "gave me the same information that you gave me."

Having gathered the facts, Owens had to make a decision. According to Susan R. Bass, an administrator in the office of the executive director of Maryland's unemployment insurance program, Owens had three levels of employee misconduct to choose from:

o Simple misconduct -- Here the fired employee gets "delayed benefits," which begin after a five to ten week waiting period.

o Gross misconduct -- No benefits.

o Aggravated misconduct -- No benefits, and reduced eligibility for benefits following subsequent employment.

Owens ruled that my work on the book didn't even rise to the level of simple misconduct, and so she awarded me full benefits, retroactive to 4 June 2000. I will receive up to $6,500, which the American Institute of Physics, the magazine's publisher, will pay for through increased unemployment insurance premiums.

Physics Today was given the opportunity to appeal the state's finding, but did not do so. If Physics Today sincerely believed its own story that it fired me for real misconduct on the job, and not just for political misconduct, it could have -- and I think would have -- appealed. The magazine would have appealed not only to save thousands of dollars, but also to dispel the implication that its motives for firing me weren't squeaky clean.

The hearing was a high-anxiety event because a lot was at stake, both monetarily and politically. Strangely, however, it was also fun, because it was so different from the way I was used to seeing disagreements resolved in the Physics Today workplace, where power so often trumps reason (see appendix below for an example). It was a pleasure to speak the truth outside of that repressive hierarchy. The ruling means that Physics Today fired me for a reason other than "misconduct in connection with the work." Who will see that reason as anything other than political misconduct? Physics Today now has to consider the possibility that both the hearing and the third-party perception of its behavior are previews of future events.

Appendix -- Example: Affirmative action

There are countless examples of power trumping reason in the Physics Today workplace, and I will summarize just one here.

Beginning a few years ago, I worked with Jean Kumagai and other Physics Today staff members to get the magazine to live up to its claim that it is an affirmative action employer. After many months of seeing our arguments brushed aside, we decided to raise the issue with the Physics Today advisory committee, which is an outside group of unpaid advisors. I spoke to the committee on behalf of the concerned staff, and the committee reported our concerns to American Institute of Physics Executive Director and Chief Executive Officer Marc Brodsky, my boss's boss's boss's boss. Brodsky then contacted me and told me that I had made "a very, very serious charge." He demanded that I bring him the evidence. I did, in a written statement (available) and in an hour-long meeting with him. He said he would investigate the matter.

Five months later, Brodsky summoned me to his office to close the case. His conclusion: Physics Today's affirmative action program was doing very well. He explained that he judges the program by its results. But what were the results? At that time, 20 March 1998, Physics Today had an all-white staff of editors and writers, with the exception of Kumagai. Since then, she has found other employment, in part because of her frustration over the magazine's affirmative action hypocrisy.

As of this writing, two years after Brodsky proclaimed affirmative action alive and well at Physics Today, the magazine has an all-white staff of editors. I'm not talking about a staff of four or five editors, who might all be white by coincidence. I'm talking about an all-white staff of 17 editors. (At least the magazine has hired minority group members as secretaries.) Physics Today's editors do not look like the physics community, the journalism community, the Washington, D.C., community where the magazine is based, or the nation as a whole.