April 2004 Archives

April 30, 2004


In our previous posting, we presented the findings of a report on workplace fatalities produced by the Massachusetts AFL-CIO. There were 81 fatalities in Massachusetts workplaces in 2003, a 65% increase over the prior year. (By the way, the actual fatality number may be higher, as some vehicular fatalities "in the course and scope of employment" may not show up in the data.)

What are the most dangerous activities in the workplace? For most people, the greatest likelihood of dying while working is behind the wheel of a car. But how did workers die in 2003? OSHA investigated 34 of the fatalities in Massachusetts. Here's how they break down:

Type of injury/total number

Falls from heights 16
Crushed 10
Machine induced 3
electrocution 2
explosion 1
Trip and fall 1
Heart attack (not work related) 1

Over three quarters of the fatalities involved falls or crushing injuries. Any activities involving heights or heavy objects require constant diligence. Among the 34 fatalities, there were only 2 instances were OSHA did not propose a fine; in two other cases, there were no fines because the victims were self-employed. Clearly, workers died because there were unsafe conditions or unsafe practices on job sites. To be sure, OSHA can cite employers for technical issues unrelated to the actual incident, and in several instances the proposed fines are being appealed, but the bottom line is as simple as it is horrifying. These workers did not have to die.

One injury involved a 16 year old on a summer job. He was killed when the forklift he was driving ran off a ramp and crushed him. Was he certified to operate the equipment? Did he really know what he was doing? If the company could relive that one day, what would they do differently? (In a future posting, we will look at the hazards of summer hiring and provide some tips for keeping summer jobs safe.)

LynchRyan approaches safety from a common sense perspective. We always emphasize the dangers of heights -- any heights. Some of these fatal injuries involved falls from ladders and scaffolds; others involved roofs and towers. Most of the these workers were pretty high off the ground, but you don't have to be far off the ground to suffer severe and even fatal injuries.

We also believe in "good housekeeping" -- in keeping job sites as clean and uncluttered as possible. In addition, we recommend that supervisors observe the work being done "with the eyes of a stranger" -- as if they've never seen this type of work being performed. This way you stay alert to the dangers that lurk in ordinary activities. There can be no complacency where lives are at constant risk.

When we review the statistics for 2004, let's hope the trends are reversed and headed in the opposite direction from this year. The only acceptable number in a report of workplace fatalities is zero.

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April 29, 2004


Eleven years ago, in DeFuniak Springs, Florida, nineteen year old Patrick Hayes died instantly when 60 tons of corn collapsed on top of him. His father, Ron, from Fairhope, Alaska, has been trying ever since to give tangible meaning to his son's death by doing all in his power to convince Congress that it should give prosecutors the right to bring criminal cases against employers for "wilfull" neglect causing death in the workplace.

Ron Hayes was in Washington this week to lobby for a proposal by Sens. Jon Corzine, D-N.J. and Edward Kennedy, D-Mass. that would do just that. Their Wrongful Death Accountability Act would criminalize wilfull neglect that results in death and allow prison terms of up to ten years upon conviction. Currently, conviction carries a misdemeanor penalty of up to six months in prison.

Not suprisingly, the administration and republican leaders are dead against the Corzine-Kennedy proposal. Commerce Secretary Donald Evans called it "just another policy to destroy jobs.'' While, in a statement that may come to haunt him someday, House Majority Leader Tom DeLay, R-Texas, said the proposal would be "the worst thing that you could do - telling a small business person that they could go to prison over an OSHA violation.'' Well, as noted above, they already can.

More than likely, the Corzine-Kennedy bill will fail to pass. After all, OSHA points out that workplace deaths in America have been falling over the years. But how many deaths are acceptable. And should employers be held harmless for their wilfull negligence resulting in death on the job?

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April 29, 2004


Is the American workplace more dangerous today than in the recent past?

According to a report released by the Massachusetts AFL-CIO, workplace deaths in Massachusetts rose by 65% in 2003 to a total of 81 people. Naturally, the report focuses on systemic reductions in safety enforcement at both the federal and state levels. No argument there. But at LynchRyan, we begin with the premise that the ultimate control of a company's destiny lies within. More than any other single factor, we believe that the management philosophy, the commitment to the work and the workforce, determines whether there will be serious injuries or even death. Enforcement all too often comes only after serious injuries have occurred.

So here are some questions relating to the relationship between the increase in fatalities and what's going on inside company management:

1. In the continuing tough economic climate, many jobs have been lost. Despite reducing jobs, many employers have not reduced the workload. As a result, fewer workers are being asked to do more work. They are under more pressure from hour to hour. They may be working longer hours. In addition, workers who remain in jobs while co-workers are let go often suffer from significant emotional stress. Is this increased stress on workers a significant factor in the increase in fatal injuries?

2. When employers reduce spending, training is often one of the first things to go. Are workers being asked to perform dangerous tasks without the proper training and safety equipment? Are employers relying on low-skilled labor to handle complex jobs? Are employers in such a hurry to "get the work done" that they fail to pay attention to unsafe conditions and unsafe workplace practices?

3. With cuts in federal and state enforcement efforts, employers may feel that the likelihood of being inspected -- and cited -- for violations has become increasingly remote. Like drivers on an unpatrolled highway, who may drive well beyond the speed limit, are employers taking chances on safety because they don't think anyone is paying attention?

4. Jobs are hard to come by in this economy. Are workers putting up with unsafe conditions out of fear of losing their jobs? Is the tough economy an opportunity for managers to exploit workers?

There are no simple answers to these questions. But good management understands the importance of keeping workers safe, healthy, and productive. It never makes good business sense -- or ethical sense, for that matter -- to scrimp on safety just because no one may be watching. Any company's most valuable asset is a skilled workforce. The realities of a tough economy may require reductions in the workforce. But prudent employers will remain sensitive to the strains and stresses of these reductions and take steps to support remaining workers, helping them to perform their jobs safely. From the perspective of good business practices, nothing else makes sense.

In part two, we will analyze the AFL-CIO data in detail.

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April 27, 2004


April 28 is Workers Memorial Day - "Remember the Dead and Fight for the Living"

The first Workers Memorial Day was observed in 1989. April 28 was chosen because it is the anniversary of the Occupational Safety and Health Administration and the day of a similar remembrance in Canada. Every year, people in hundreds of communities and at worksites recognize workers who have been killed or injured on the job. Trade unionists around the world now mark April 28 as an International Day of Mourning.

AFL-CIO - "Each year more than 60,000 workers die from job injuries and illnesses and another 6 million are injured. The unions of the AFL-CIO remember these workers on April 28, Workers Memorial Day."

Hazards Magazine - "Worldwide millions die each year as a result of workplace hazards. Most don't die of mystery ailments, or in tragic "accidents". They die because an employer decided their safety just wasn't that important a priority. The global trade union movement wants employers to be accountable for workers' health and safety. Get active on International Workers' Memorial Day, 28 April 2004."

UK's Amicus - "Worldwide 2 million are killed by work each year. Jukka Takala Director of Safe Work at the United Nations International Labour Organisation, said: If terrorism took such a toll, just imagine what would be said and done."

I'll be on the road and won't be able to blog the news headlines of the day. Be sure to visit Confined Space and rawblog Xport - two weblogs that do an excellent job of championing worker safety and shining a spotlight on important health and safety issues.

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April 22, 2004


"Slavery is not just the shameful stuff of history books - not in Florida"

"For nine months, The Palm Beach Post explored the roots of modern-day slavery. Reporters and photographers traveled to destitute Mexican villages, crossed the desert with a smuggler, rode across the U.S. with illegal immigrants, found new claims of slavery, uncovered rampant Social Security fraud, and found that Florida's famous orange juice comes with hidden costs."

This series is stunning. That gross human rights and labor abuses occur in this country is not a surprise; that they thrive on such a scale and with such complicity from an entire industry, and with a nod and a wink from state authorities -- well, color me naive, but that's the shocker.

The text and photos speak for themselves. Here is an excerpt from the introduction:

"They slip across the Mexican border at great peril, cross the country in the dark hollows of vans, stay silent as they are "bought" and "sold" in fruit groves and rest stops dotting the American landscape.

A destitute minority in a wealthy, well-fed society, they are packed like prisoners into unfit housing, ferried to work in unsafe vehicles and compelled to labor long hours -- under fake names and numbers -- for substandard wages.

Enslaved by debt from the very moment they arrive, they contribute mightily to Florida's $62 billion agricultural industry, yet they earn little in return.

In the worst cases, they are threatened, beaten and locked up in their dingy quarters to prevent their escape.

This is the state of the harvest in 2003.

"The richest, most powerful people in the state are benefiting from this," says Rob Williams, director of the Migrant Farmworker Justice Project, a legal advocacy group in Florida. "They don't want it to change."

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April 21, 2004


As if the word blog weren't hideously unattractive enough, now we also have blawgs. Blawgs are law blogs, get it? We have a few excellent blawgs listed in our sidebar disguised as business weblogs, and we'd encourage a visit to any of them. Despite an innate propensity to caution, the legal profession seems to have taken to weblogs in a big way. It's probably all Ernie the Attorney's fault - he seemed to get the blawg rolling, so to speak.

Here's a call-out for a few more legal resources that we've recently to our sidebar.

BoleyBlogs! is the legal research weblog of the Boley Law Library of Lewis & Clark Law School. It's fairly new, but it looks quite promising - lots of good links.

In a similar vein, Inter Alia bills itself as "a internet legal research weblog, among other things." I find the frequent information on search engines quite helpful.

Blawg.org is a directory of law and legal related weblogs. There are nearly 500 blawgs listed, and if you register, you can rate them. (Won't someone please rate us?)

At The Daily Whirl, you pick the sites and they snag the headlines. You can configure a page to load with headlines from more than 100 law-related sites.

If all this weblog jargon has you befuddled, Blogicon offers an amusing little weblog lexicon, although we note that "blawg" hasn't made the list yet. Maybe my blatant blog sponging will get it there.

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April 20, 2004


In most states, an individual in the normal commute to and from work is not considered "in course and scope" of employment. If employees have accidents on the way to or from work, they are usually on their own and will not have access to benefits under workers compensation. However, there are a number of circumstances when employees may be covered during the commute. For example:

  • An on-call employee is called back to the workplace. This individual is usually covered from home to work and then from work back to home.
  • An employee has no geographic starting point for employment (e.g., a salesperson). He or she heads off in a different direction every morning. There is no single "workplace." This individual is covered from the time of leaving the home until returning.
  • An employee conducts a work-related errand. An employee is asked to pick up some supplies on the way home. This "deviation" is considered part of employment and any accident or injury during the "deviation" from the regular route would be covered.
  • An employee heads out for lunch in his personal vehicle (a "personal errand" not covered by workers compensation). A supervisor asks the employee to "pick up some fries." This errand now has a work-related aspect and workers compensation may well apply under the "dual capacity" concept.

What is striking about these "to and fro" exceptions is how common they are. Even though employees in the above situations might drive only rarely under the workers compensation umbrella, in most states they are covered by workers compensation. Hence, any accidents would have a direct impact on the employer's experience rating (or self-insurance, for those who cover their own losses).

Sometimes coverage may begin even before an employee gets into his or her car. On-call employees are covered from the moment they receive the call back to work; a fall down the stairs at home might be considered workers compensation! In a case from Connecticut, a salesman was asked to go out on the road immediately after a snowstorm. He didn't want to go, but his supervisor insisted. While shoveling the snow from his driveway, he had a heart attack. The Connecticut Supreme Court determined that he was "in the course and scope" of employment, because he had to clear the driveway in order to operate the car. And he had to operate the car in order to carry out his job.

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April 19, 2004


In the April issue of Risk Management, Morgan O'Rourke discusses protecting your reputation as a risk management strategy, and makes the case that reputation management is just plain good business sense.

"A good reputation can convince the undecided to choose a certain product or service and dissuade existing customers from moving to a competitor. But a damaged reputation can be irreparable and, in extreme cases, lead to a company’s downfall. One need look no further than the demise of Arthur Andersen in the aftermath of the Enron scandal to see an example of the perils of a damaged reputation."

O'Rourke suggests that ethics and fiduciary responsibility go hand in hand:

"Fiduciary responsibility means that in its quest to be profitable, an organization must consider the balance between the duty of obedience and the duty of care, or put more simply, the balance between legal obligations and ethical practices. Sometimes what may be legal may not be ethical, putting the reputation of the organization at risk."

The article also discusses active reputation management through public relations, crisis management planning, and brand building, although O'Rourke is quick to point out that such measures can't merely be skin deep - a company must have a deep and true commitment that is part of the very corporate culture.

We would take the issue one step further by suggesting that reputation management starts with your internal constituencies and radiates out. To be truly authentic - not just an external PR ploy - reputation management has to begin with your own employees. Yes, it's an old adage, but charity really does begin in the home, or on the shop floor, the assembly line, or the cubicle, as the case may be. And there is perhaps no better barometer of employer-employee relationships than workers comp. How seriously a company works to protect the safety of its workers is telling.

Right after reading this article, I came upon a series of weblog posts on corporate social responsibility (CSR) by guest blogger and author Jeffrey Hollender at FC Now. Hollender is author of a book entitled What Matters Most: How a Small Group of Pioneers Is Teaching Social Responsibility to Big Business, and Why Big Business Is Listening. I haven't read the book yet, but it will definitely have a place on my upcoming-books-to-read list. Among the many benefits of CSR that Hollender discusses:

" ... businesses who integrate their values throughout their value chain, reduce risk, build stronger partnerships and achieve higher quality. Also, with value-chain responsibility the social and environmental costs of products and services are more fairly distributed to specific suppliers and consumers, as opposed to the society at large. Externalities then can be fairly internalized."

The series of postings are worth a read...some also have interesting comments tagged on to the post:

What Matters Most
A Definition of Corporate Responsibility
The Business Case for CSR
The Business Case for CSR II

I’m sure we’ll be discussing this topic again – CSR is a theme that resonates with us.

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April 18, 2004


Any regular visitor to Workers Comp Insider would know that we are not ones to minimize the seriousness of workplace injuries, and we bemoan the frequency with which work injuries occur. Essentially, we believe that if American businesses can aspire to total quality management and zero defect philosophies for parts and processes, they can do at least as well for their greatest asset, their people. Prevention is a key mandate that all of us in the industry should and must embrace.

That being said, a good part of our focus as a company has been on teaching employers how to respond to and manage work injuries if and when they do occur, with the twin goals of fostering maximum recovery for the employee and minimum cost for the employer. These are goals that should not be mutually exclusive if approached thoughtfully and with care, through good management, communication, and planning.

I was reminded, recently, of a survey of occupational doctors on the topic of lost time that was conducted by Dr. Jennifer Christian. In this survey, occupational physicians were asked to assess how many of the work-related injuries they treat typically require more than a day or two away from work for medical reasons. Most physicians placed this number at less than 10 percent; more than half of the responding physicians placed the figure at less than 5 percent.

So with an occupational medicine consensus being that between five and ten percent of all work injuries require time away from work for medical reasons - or one injury in 10 or 20 - why is it that, on average, about one injury in four, or 24 percent, results in absence from work long enough to become a lost-time claim? (Most states have a three to seven day waiting period before compensabilty benefits begin.)

Why do so many work injuries result in medically unnecessary time away from work? Dr. Christian put this question to the physicians, and the answers were telling. More than two-thirds of the physicians gave the following reasons:

• the treating physician is unwilling to force a reluctant patient back to work (the most common reason cited);
• the treating physician is not equipped to determine the right restrictions and limitations on work activity;
• the employer has a policy against light-duty work;
• the employer can't find a way to temporarily modify a job;
• the treating physician feels caught between the employer's and the employee's version of events;
• the treating physician has been given too little information about the physical demands of the job to issue a work release for the patient; and
• a conflict exists between the opinions of two physicians.

In these responses, we can see that a significant amount of time away from work occurs not because of medical necessity but because of either poor communication or poor planning. The good news is that these are issues that an employer can address and rectify. Dr. Christian suggests that reducing medically unnecessary disability lies in a physician-employer-employee triumvirate. Her thoughts on the topic are well worth a read.

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April 16, 2004


A few weeks ago, we featured an article that discussed the need for cultural competence in healthcare - "the ability of providers and organizations to effectively deliver health care services that meet the social, cultural, and linguistic needs of patients."

More recently, The Health Show pointed us to a recent report by the Institute of Medicine (IOM) suggesting that 90 million Americans face significant health literacy issues. The IOM emphasizes taht this is not simply an issue that faces the uneducated or the poor. According to the report:

"Health literacy skills are needed for discussing care with health professionals; reading and understanding patient information sheets, consent forms, and advertising; and using medical tools such as a thermometer. Over 300 studies indicate that health-related materials cannot be understood by most of the people for whom they are intended.

Individuals are increasingly responsible for managing their own health care, the committee noted. They are assuming new roles in seeking information, measuring and monitoring their own health, and making decisions about insurance and options for care. Patients' health often depends on their ability and willingness to carry out a set of activities needed to manage and treat their disease. This self-management is essential to successful care of chronic diseases such as diabetes, HIV, and hypertension. Patients with chronic illness who have limited health literacy are less knowledgeable about disease management and less likely to use preventive measures.

Limited health literacy is not a problem that starts and ends with patients, the committee added. Health systems are becoming increasingly complex, involving new technologies, scientific jargon, and complicated medical procedures and forms. All of these aspects of the health system can be confusing to patients."

In the midst of this increasing complexity, throw the $3 billion in annual drug advertising that pharmaceutical companies spend on direct-to-consumer advertising into the mix. While ads previously focused on discretionary types of treatments, pharmaceutical companies are increasingly advertising complex treatments for serious health conditions.

To remedy the health literacy issue, the IOM suggests that practical health education and skills be added to the curricula from kindergarten through high school, as well as in adult education and community programs.

From a workers comp perspective, this makes the case for nurse case managers as health care advocates and educators, particularly in complex cases. However, case managers are often introduced too late in a claim after the treatment trajectory has been set. Also, their role is too often viewed as mere "cost control" when the most effective goal would be to foster recovery and return to work.

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April 16, 2004


Recently, we posted about the AP investigation on Mexican workers and their shocking on-the-job death rate. Jordan Barab at Confined Space has an in-depth, not-to-be-missed follow-up to this story that discusses what OSHA is doing about immigrant worker safety.

And one of our readers pointed us to this article from the Palm Beach Post about the Florida workers comp law being biased against Hispanics:

"If the families of eight migrant farm workers killed in a rollover west of Fort Pierce lived in Canada, they would get $150,000 in workers compensation death benefits. But because they live in Mexico, they're entitled to only $75,000."

This egregious injustice is the result of a 1920s law that has never been rescinded, and although the Florida Supreme Court deemed this unconstitutional, in state reforms last year, not only wasn't this unfairness addressed, the legislature actually upped the benefit for Canadians from $1000,000 to $150,000.

Although the law has been challenged successfully, left unchallenged, insurers still use it as a basis for settlements. For an immigrant family to prevail, they would have to know about the entitlement in the first place, be aware of the discrepancy, be aware of successful challenges to the law, and be willing to forego compensation during a lengthy court challenge. The article points out that "Since 1990, nearly 30 percent of the cases settled, according to Florida Division of Workers Compensation. The average settlement: $32,000."

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April 16, 2004


Carole Matthews at Fresh Inc. points us to this story on 10 rules for Corporate Blogs and Wikis from Nick Wreden at Marketing Profs. If you have a corporate blog, or would like to have a corporate blog, the article offers some good counsel, examples of companies that are using weblogs effectively, and links to other resources.

Also of interest, and perhaps less familiar to many blog readers, the article also discusses wikis as a collaborative tool.

Wikis (based on the Hawaiian word for quick) use open-source principles to transform KM and even the centuries-old relationship between reader and author. Wikis have a link at the bottom of the page that allows anyone to add, change or delete the text. Authoring tools, passwords or permission are not required. (To prevent disasters, older versions of each page are easily restored.) Changes are flagged via RSS alerts.

As a result, wikis represent an ideal medium for collaborative brainstorming. Imagine putting a plan for a new product on a wiki, and have it be modified to precisely reflect the requirements of potential customers! Think wikis can’t work? One favorite resource is the Wikipedia. It has more than 237,000 informative articles on a wide variety of topics (ranging from Bush to dumpster diving), all with numerous links back to source material. All the articles can be changed by anyone at any time, which means that the great content results from survival of the fittest. The only downside of wikis is that they are text-based, but considering the way many abuse HTML, that is not always bad.

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April 15, 2004


Business Insurance covers the controversy over the method AIG uses to calculate terrorism rates for workers compensation policyholders. Tennessee and Texas are among the states taking issue with the company's rate calculations, which deviate from the methodology used by NCCI.

"The Terrorism Risk Insurance Act required commercial lines insurers to offer coverage for acts of foreign terrorism. To expedite their offerings, the act allowed insurers to set rates without obtaining regulatory approval. But the mandate also allowed regulators to later evaluate insurers' rates and reject them if they found them excessive, unfairly discriminatory or inadequate, explained Peter Burton, senior division executive in Wayne, Pa., for the NCCI."

These are largely uncharted waters. As the article points out, this is "a peril without a loss history." Nevertheless, many state authorities regard the AIG method of rate calculation as discriminatory because it is based on a percent of manual premium. Therefore, high risk industries would be heavily burdened under this rate calculation, even though the exposure is likely to have more to do with employee concentration or geographic locale. For example, a financial firm with a home office in Los Angeles is likely to be a greater terrorism risk than a construction firm in Tennessee.

For more information, see NCCI's terrorism resources. In the most recent update, NAIC is urging Congress to act now "to ensure insurance marketplace stability and economic security before the expiration of the Terrorism Risk Insurance Act (TRIA)." The law is scheduled to expire on December 31, 2005.

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April 11, 2004


How important is health care to the average American? We certainly knew it was important, but an article in bizjournals about a recent poll on health care conducted by the Commonwealth Fund drove the point home: It is apparently important enough that "62 percent of Americans would be willing to give back all of the recent federal tax cuts in exchange for universal health insurance coverage."

And also on the topic of health care coverage or the lack of it, read 10 Myths of the Uninsured, testimony presented to a congressional committee by economist Len Nichols, Ph.D., vice president of the Center for Studying Health System Change (HSC). He pokes holes in many common assumptions about health care, including the idea that American businesses pay $400 billion a year to provide coverage for workers, stating that "Economists believe that ultimately most workers end up paying for health insurance in the form of lower wages." Thanks to Pulse for pointing us to this article.

George's Employment Blawg also has a good post on health care issues, including a link to a report entitled Health Care Benefit Crisis: Cost Drivers and Strategic Solutions (note: 30 page pdf file) by Eric Parmenter of Grant Thornton. We will quote George in summarizing it:

Packed with facts and figures, this document begins with a comprehensive, yet concise analysis of sources of increases in health care benefit costs, including: the aging of the baby boomers, costs of new technology, legislative initiatives such as HIPAA, "managed-care saturation," "direct-to-consumer prescription marketing," "insurance industry consolidation and profit-taking," our "litigious society," poor health care quality, "preventable and avoidable accidents and health problems," lack of insurance, and "consumer cost insulation."

Rounding out our reading on the health care crisis, Tom Mayo at HealthLawBlog updates us on recent developments on the issue of drug costs. Tom says: "Who knows? Maybe drug costs will be the leading edge of a health-care reform movement that drags the country, kicking and screaming, into universal coverage (maybe single-payer, but probably not)."

For more on these topics, see our prior posts:
Number of uninsured workers at large employers growing
Economic downturn effects changes in health insurance coverage
More on the prescription drug saga
Ouch! Pain drugs or drug pains?

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April 6, 2004


Donald Trump's TV series has everyone joking about firing or being fired, although for anyone who has ever been on either end of the equation - as the manager who fires, or as the employee who is fired - it is rarely a joking matter.

Some would make the case that in today's litigious society, most companies don't 'fire' employees outright anymore, fearing a charge of discrimination or wrongful termination. It does seem as though downsizing, outsourcing, re-engineering, plant closings, mergers, and a host of other euphemistic group actions have all but replaced the plain vanilla one-to-one termination, at least for large companies. Nevertheless, when there's a continuing employee performance issue, terminating employment is sometimes the only course of action. And, in some instances, an employer may even be sued for not terminating an employee, such as when that employee poses a danger to other employees.

What about firing an employee who is out on leave for workers compensation? That's a question we often get. In these cases, we will often hear a long litany of complaints about the employee, sometimes going back years. From the employer's perspective, the workers comp claim is often viewed as the final straw in a continuing series of problems with that particular employee; at other times, it simply may appear to be a convenient, neat way to resolve an ongoing problem.

Firing an employee while he or she is out on workers compensation disability leave is almost always a bad idea. For one thing, many states have laws that prohibit retaliatory firings for workers who file claims. Even if this were not the case, it's not a good idea to use workers comp as a tool to resolve human resource issues.

There may indeed be some instances where termination would not violate the law, such as in cases of business necessity. In an article entitled The Problem with Firing an Employee on Workers’ Compensation Leave, author Sharyn Alcaraz suggests that (in California) the following reasons may be legitimate:

"(1) the employer is severely shorthanded, other employees could not cover the work, and the employer could not replace the worker without expensive training of others; (2) violations of important company policies (e.g., drinking on the job); (3) chronic absenteeism and failures to report to work or call in; (4) failure to keep employer advised of condition and date of anticipated return to work; (5) the employee’s substandard work performance; (6) the employee was unable to do the work (or any substitute work) at the company due to the disability. As a practical matter, an employer must establish that it had good cause to terminate an employee after learning about a workplace injury (even for at-will employees)."

Note that these reasons would generally be valid for any employee under such a set of circumstances, and are not in reaction to past performance issues. When there is a history of performance issues with an employee, we would suggest that these issues be dealt with separately. We recommend that employers treat the employee in question the same way they would any other injured employee - providing excellent medical care, staying in communication through the recovery period, and helping the worker to recuperate and return to work as soon as feasible. When back on the job, the employer can address the performance issues.

All too often in these cases, the performance issues had not been adequately addressed in the past, and workers comp is seen as a way to sweep everything under the rug. Managers should deal with performance issues as they occur, and except in gross violations of company policy that dictate immediate dismissal, should use a progressive disciplinary process that allows the employee to understand and address problem areas. This is both the most fair and the most effective way to handle problems.

Why isn't this done consistently? Often, managers and supervisors are promoted to their positions with little in the way of training in the art and skills of being a manager. New managers should be taught how to supervise, coach, train, give positive and negative feedback, keep written records, and enforce company policies. It's critical to help managers and supervisors learn how to take disciplinary action in a fair, impersonal, and consistent way. Training in this area will not only help protect you, the employer, from litigation, it will help foster better manager-employee relations and a more productive work environment for all.

The Small Business Blog posted an article, How to Fire Employees, that discusses the issue of termination. At the end of the article, there are some excellent links to a variety of resources - it's a good tool kit on the topic of termination when remedial alternatives don't work.

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April 2, 2004


It's long been our contention that when there is bad blood between employers and employees over workers comp, the issue is often one of communication. It might be helpful if employers thought and spoke in terms of "injured workers" rather than the depersonalized "claimants." Similarly, employers and insurers often speak in terms of "incidents," an officious euphemism that can trivialize what are often painful and bloody human occurrences. Work injuries are generally referred to as "accidents" as if they were inevitable or an act of God rather than the preventable events that they generally are. It seems impossible to prevent "accidents," but most reasonable people would agree that preventing workplace injuries would be a worthwhile goal, and with some effort, largely achievable.

Much of the language that we use in the industry comes from the business of insurance and, let's face it, the insurer approach to workers compensation is coming almost entirely from the financial perspective. That may well be as it should be - it's the insurer's job to assess compensability, and if suspicious circumstances are present, it is their job to raise the questions.

But employers shouldn't fall in the trap of reducing what is essentially a human event to a simple financial transaction. In our experience, when employers address the human event of a work injury, and do so fairly, consistently, and with a focus on the employee's recovery and return to work, a better financial outcome ensues than when focusing on the money.

That's why we don't encourage employers to build their workers comp system around fraud. Indeed, there are some fraudulent employees -- it would be naive to think otherwise. (And let's not forget that there are fraudulent employers and providers, too). But building a management system around the bad egg results in a punitive system that punishes the majority for the sins of the few. People generally live up to expectations, so expectations are better set to high rather than low standards.

When we meet with an employer who identifies fraud as one of their primary workers comp issues, that is often a sign that we are dealing with an employer that has more problems than just a high workers comp bill. With some exceptions - as in states like California where the issues are systemic - a serious workers comp problem is often the he tip of an iceberg representing a host of festering employer-employee issues and problems; it is the symptom rather than the disease. Either that, or in some cases, poor experience can be racked up to simple ignorance -- a fundamental lack of knowledge about what workers comp is, and the misguided notion that some outside party will solve problems that must be owned and addressed from within.

An employer must build a system of management controls at every intervention point on the spectrum: first and foremost, prevention -- the injuries that don't occur are the least expensive ones, both in human and financial terms; second, immediate and appropriate point-of-injury response in the event an injury should occur -- what an employer does to respond in the first few hours can set the tone for the future trajectory of events; and finally, post-injury management -- a focus on the employee's recovery and return to work. Communication is at the very heart of such a system, and good communication might best start for employers with thinking in terms of "people" rather than "claimants."

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