May 2006 Archives

May 31, 2006


One of the ironies of modern life is that we can go anywhere in the world, but we often find ourselves immobilized in the process. There are a number of circumstances that render us immobile: long haul air travel - 4 plus hours (on a bad day, that might be just runway time!). Sitting in a traffic jam or driving to a distant destination. Long hours in front of the computer or TV. Any prolonged period of inactivity places us at risk for Deep Vein Thrombosis - a blood clot that can lead to health complications, even death.

The Insider is not sure why people in Great Britain are much more focused on DVT risk than Americans. In England you even can buy specific insurance for DVT. Airlines based in England are contemplating changes in seat design to reduce the risks. The threat of lawsuits might soon result in posted warnings for airline passengers.

Some people are more at risk for DVT than others. Here's a listing of risk factors, a broad net that encompasses most of us. (For more detail on these factors, check out the website).

: age - as people over 40 are at greater risk of DVT
: a past history of DVT
: a family history of DVT
: an inherited condition that makes the blood more likely to clot than usual
: immobility
: obesity
: recent surgery or an injury, especially to the hips or knees
: pregnancy
: having recently had a baby
: having cancer and its treatments
: taking a contraceptive pill that contains oestrogen - but most modern pills contain a low-dose, which increases the risk by an amount that is acceptable for most women
: hormone replacement therapy (HRT) - but for many women, the other benefits outweigh the increase in risk of DVT
: treatment for other circulation or heart problems

Risk Transfer and Risk Mitigation
As with any risk, there are a number of ways to respond. Some people move immediately to risk transfer: get someone else to cover the potential loss. That's where the new insurance policies come in. If you die of DVT within 10 days of air travel, you collect 10,000 pounds. Congratulations!? This insurance is odd for several reasons: the risks are strongest after the 10 day eligibility period ends, so you might succomb from DVT but not collect anything. (Chaulk one up for the insurance actuaries!) In addition, because the insurance only pays for your death, it's really life insurance. Why bother insuring for just one potential source of your demise when a simple life policy covers you under virtually any circumstances? It's hard to imagine that DVT insurance is going to be a hot seller.

A more attractive alternative to insurance, we think, is the practical advice offered to people locked into a sedentary position: just get your blood circulating. On an airline, get up and move around. If you're driving in a car, or if you have a window seat on the plane, you can perform "traffic jam aerobics." If you are adverse to any suggestions of exercise, just make sure you stop and get out of the car for a stretch every two hours. It also helps to drink plenty of water and limit the consumption of alcoholic beverages and caffeine.

Here are some specific exercises, many of which will not be appropriate for the driver, unless the traffic is at a complete standstill:

Downward Foot Press: Press the balls of your feet down hard against the floor and raise your heels to increase the blood flow in your legs. Hold for five seconds and repeat 10 times. (Needless to add, avoid downward pressure on the accelerator!)

Shoulder Rolls: To ease the tension of sitting in one position for too long, lift the shoulders up towards the ears, roll the shoulders backwards and then down in as big a circle as you can manage. This will help to release tension in the upper back and neck, so is especially good if driving for long distances in stressful traffic.

Shoulder Press: Lift the arms to touch the car roof, take the arms outwards and back down, and repeat.

Elbow Circles: Place your fingertips on your shoulders and draw circles in the air with your elbows. Another great move to help release tension in the neck and upper back. (You might also get some interesting responses from other drivers.)

The bottom line is relatively simple. If you find yourself in a situation which severely limits your ability to move around, do something to engage the muscles of your arms and feet. A few simple risk mitigation steps will do the trick. As for the insurance, buy a lottery ticket instead. The likelihood of a payout is about the same.

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May 30, 2006


Our thoughts and deepest appreciation to all the military who have given their lives for their country.

What more fitting tribute to honor the deceased than to remember the living whose lives will be permanently changed due to combat-related disabilities. There are more than 1 million veterans registered as Disabled American Veterans and, sadly, that number is increasing daily - more than 18,000 have been wounded in Iraq. Today, thanks to better body armor and better medicine, wounded members of the military are surviving injuries that would have been lethal in the past. However, this means that we will be seeing more profoundly disabled vets. 60 Minutes recently reported on the inspirational stories of several of these vets. Others veterans suffer PTSD - wounds that may be less visible to the eye, but that can have tragic results.

It's all well and good to hang yellow ribbons and offer a silent prayer on Memorial Day, but the rubber will meet the road in how we treat our vets on their return over the long term. This will test our national character, and as disabled vets begin returning to the workplace, will test employer resolve as well.

On another note, Peter Rousmaniere at Working Immigrants notes that about 6,000 immigrants enroll in the U.S. military each year as a means to citizenship. As of 2003, non-citizens represented 2.6 percent of the military. Many pay a steep price to attain this dream.

Workplace Prof Blog reports on issues related to veteran re-employment. Veterans have legal obligations to file both departure and return notices to employers to protect re-employment. Unfortunately, there is a lack of clarity about these notices.

Craig Crawford, columnist for Congressional Quarterly, has a short and touching Memorial Day tribute video clip posted on his blog. (Sound alert, and you need flash to see the clip).

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May 25, 2006


The Insider has followed trial of former Enron CEO Ken Lay with considerable interest. Just as we like to track the memory lapses of CEOs who plagiarize the work of others (did someone say "Raytheon"?), we are intrigued when one of the most powerful corporate leaders in America claims that he didn't know what his people were doing. "You just do your thing and tell me about it when you get around to it. Even better, don't tell me. I don't want to know." Yeah, right. Throughout the trial, Lay continued to blame his fall on the Wall Street Journal. Bad press caused a collapse in confidence. The Journal, of course, is famous for its muckraking attacks on corporate giants. One after another, the Fortune 500 fall.

Insider readers might enjoy a visit to Ken Lay's own website, where his Barnum-like persona is in full swing. He hasn't had a chance to update the site with details of his conviction (that might take a while). Meanwhile, here's an annotated look at his most recent letter to the world:

As my trial draws to a close, I reflect back on my case. [Do I ever!] The trial began in late January, and the defense rested on Monday, May 8. [The legal fees are amazing. I sure hope my alma mater returns $1.1m I gave to them.] The jury is now deliberating on the case. [Here's hoping for a hung jury!]

I wanted the truth to come out about Enron, and elected to testify on my own behalf. [These two items are not necessarily related.] I believe that my legal team and I brought out important facts about Enron and its collapse. [We also omitted certain facts that we considered, well, immaterial.]

Enron was a strong, profitable, growing company even into the fourth quarter of 2001. In February 2001, I stepped down as CEO of Enron. I was confident that Enron was financially strong, highly profitable and growing rapidly and we had the numbers to prove it. [Boy, did we have the numbers. You want numbers? I'll give you numbers!]

Yet, in less than 10 months, in December 2001, Enron was forced to file for bankruptcy protection. Although many events contributed to Enron’s bankruptcy, the actual triggering event for Enron’s bankruptcy was the loss of confidence by the financial community and by Enron’s trading counter parties, which began a collapse that ultimately could not be reversed. The notion that Andrew Fastow, Enron’s CFO, might be involved in illegal activities provoked the loss of confidence, leading to a classic run on the bank. This business was dependent on trust—and the actions of Andrew Fastow and his cohorts breached that trust. The result for Enron, its shareholders, employees, retirees and others was catastrophic. [The corollary of trust is the sucker. See P. T. Barnum, even if he never really said it.]

I failed to save the company that I helped build and loved. As I have said many times, I am devastated by this failure and its negative impact on so many lives. [Good thing I salted away a fortune prior to the collapse.] But failure does not equate to a crime. [To quote the immortal Richard M. Nixon: "I am not a crook."]

Reviewing the government’s case against me, I believe that the Enron Task Force did not fulfill the burden of proof. The vast majority of the Enron Task Force witnesses in this case reached plea agreements with the government, which made testifying against others in their best interest. [Excuse me, but the former employees presumably plea bargained because they were guilty.]

Instead, the Enron Task Force spent days upon days raising arguable issues not in any way related to the charges in the indictment against me in an effort to personally attack me and make the jury question my character. We firmly believe that the jury will see through this maneuver. [Mission accomplished. The jury saw right through all the maneuvers...]

I have read that some people were surprised by my forcefulness when I testified on my own behalf. I will continue to forcefully defend myself against all false accusations as I proclaim my innocence of the crimes of which I have been accused. We are confident that I will be found not guilty of all charges. [OK, we're not so confident about that any more. However, we are confident that we will prevail on appeal. After that, we are confident that we will win a Presidential pardon. One hundred thousand smackeroos ought to buy you something! If that fails, I'll, I'll rat out someone else. Let's make a deal!]

Thank you. [And good night]

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May 24, 2006


The way we react to a news item often depends upon our pre-conceived notions. We all have an innate sense of what is good and just, tasteless and outrageous (although your "outrageous" might be my "humorous"). Our fellow bloggers at "Overlawyered" scan the news for indications that our over-litigious society is out of control, with greedy lawyers in eternal pursuit of the almighty dollar. They are not lacking for material.

When they blogged a recent jury award for discrimination, they implied that once again, juries had fallen under the spell of slick attorneys. Here's their summary:

Sonoma County, Calif., allowed health care caseworker George Alberigi, 52, to interview Medi-Cal clients by phone from his home, by way of accommodating his psychiatric conditions, namely panic disorder and agoraphobia (fear of public places). Then in 2001 he applied for a promotion. The county turned him down on the grounds that the higher-level job required meeting clients in person. Disheartened, Alberigi went on permanent medical disability. Now a jury has awarded him $1.5 million in lost wages and $5 million in other damages including pain and suffering.

From this summary, it sounds as if Alberigi used his disability to leverage the system.

Another Point of View
We find a lot more detail and a radically different perspective on this case in another law blog. There is little doubt that Alberigi had a mental disability. In the mid-1980s, Alberigi was first diagnosed with panic disorder and agoraphobia. The panic attacks caused Alberigi to get tense all over, his muscles got ridged, he would grit his teeth, squeezing and ringing his hands. Sometimes he was rigid with panic, and unable to think. His heart beat fast and, he started holding his breath, squeezed his eyes shut and felt like he was going to die. As Alberigi stated, “Sometimes I wished that I would die to get away from the panic.”

Despite this disability, Alberigi was able to function as a case worker, even though the disability made it difficult for him to interact in person with strangers. The County accommodated Alberigi’s disabilities for fifteen years by allowing him to restrict his face-to-face contact with clients. Although he came to the office each day and interacted regularly with co-workers, he was allowed to conduct business with clients primarily by telephone and only rarely met face-to-face with clients. He apparently performed his job well. He had received numerous commendations for his willingness to help others. His performance reviews stressed this positive aspect of his character:

- “Mr. Alberigi is always supportive of co-workers. He provides a calming influence in the unit in times of stress for others.” [Note the irony in that comment!]

- “His positive and upbeat attitude have made him well liked and respected by his co-workers.”

In 2000, he received his division’s Distinguished Employee Award:

“George always helps co-workers with their caseloads when he has extra time... He always expresses a positive attitude towards clients and co-workers and goes the extra mile to help others.”

Change for the Worse
It does not appear that Alberigi was seeking a promotion. Instead, in 2001 the County transferred him from his long-term position, allegedly for the purpose of enabling him to gain more experience and be promoted. The County, however, did not give Alberigi a choice and made no effort to accommodate his known disabilities. The new position required face-to-face contact. As a result, Alberigi experienced severe anxiety and panic attacks in 2002 and went out on disability. The County sent him to doctors of their choosing for a fitness-for-duty evaluation. These doctors concluded that Alberigi did suffer from panic disorder with agoraphobia and recommended that he be assigned a caseload that did not involve face-to-face contact with clients.

Despite these recommendations from their own doctors, the County refused to accommodate Alberigi, claiming for the first time that face-to-face contact with clients was an essential function of the position. Alberigi asked to be returned to his old position. The County refused this request. Hence the lawsuit.

Learning to Listen
Despite his severe disability, Alberigi was able to function as a dedicated and competent employee. He had the respect and support of his coworkers. Management, for reasons unknown, decided to shake up his narrow world and force him out of a nurturing situation. This obviously did not work to anyone's advantage. The result was a disservice to Alberigi, to his employer and to the taxpayers of Sonoma County.

In addition, the story becomes fodder for perpetuation of a particular world view. If you only focus on the jury award, you may well conclude that this case involved a miscarriage of justice: Alberigi (and his attorneys) did not deserve the settlement. Once again, a jury came up with a ridiculous and undeserved award. The reality appears a bit more complicated. The Insider is all for reform of a judicial system that treats pain and suffering like a lottery. On the other hand, managers - people with control over others - need to be held accountable for their actions. Managers need to combine their vision of the work that needs doing with the realities of the people doing it. In this sad tale, management apparently lost sight of its mission, abused its powers and prevented a proven employee from carrying out his job. No doubt about it, they have to pay for these mistakes.

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May 23, 2006


If so, you're in luck. Hank Stern at InsureBlog is hosting Health Wonk Review #7. Drop by for your biweekly ration of the best-in-class blogging on health policy, infrastructure, insurance, technology, and managed care.

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May 22, 2006


I've been in Spain over the last few weeks. Any blogging under my name was done in advance since, by design, I had little access to the Web while traveling. I spent much of the weekend online trying to catch up with news - here are some items I found noteworthy.

Miner deaths - In the light of 5 more tragic mining deaths and the fact that mining fatalities in the first four months of 2006 have exceeded the total fatalities in all of 2005, Jordan Barab at Confined Space advocates for competence, experience, and integrity over politics and cronyism in making appointments to the mining regulatory oversight authorities.

Workplace First-Aid - OSHA issued a Best-Practice Guidelines for Fundamentals of a Workplace First-Aid Program (PDF). Thanks to Workplace Prof Blog for the pointer.

M&A activity - Specialty Insurance Blog posts links to news stories indicating that insurer and agent merger and acquisition activity is trending up, and could perhaps even surpass the 2005 record-breaking activity.

Scandal watch - Joe Paduda at Managed Care Matters has been keeping track of the latest developments in the Ohio Bureau of Workers Comp Coingate scandal. Since that post, Noe has been seeking a change in venue and the BWC fired KPMG, the firm conducting audits and overseeing "alternative investments" since 1997. Some question the timing of the firing and wonder why the firing didn't occur earlier since, according to the former chief investment officer (who was fired), KPMG never questioned the rare-coin investments.

New health research tool - David Williams at Health Business Blog points us to a new health care search engine called Healia. He spoke to the company's founder and reports on the potential. It looks like a serious entrant, and worth keeping an eye on.

Immigration - Peter Rousmaniere continues to be an authoritative source for all issues related to the immigration issue at Working Immigrants. Among the many recent stories he's posted, it is interesting to note that undocumented workers are contributing more than $6 billion a year to Social Security, suggesting that 4.5% of the contributors to Social Security today are coming from workers who are not eligible for these benefits.

Flexible schedules - Are flexible schedules that accommodate parenting a work practice only available to professionals and not the working class folks who keep the wheels turning? It would appear so, according to a column entitled The Family as a Firing Offense by Ruth Marcus in the Washington Post.

"According to studies cited in the report, flexible schedules are available for nearly two-thirds of workers who earn more than $71,000 annually -- but for less than a third of those with incomes under $28,000. Over half of working-class employees are not permitted to take time off to care for sick children."

Thanks to rawblogXport for the pointer.

Corporate culture - Diane Pfadenhauer at Strategic HR Lawyer reminds employers that the consequences for being unaware of inappropriate workplace behavior can be severe in her post Don't Think "It Can't Happen Here".

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May 18, 2006


Company outings should be a time to kick back, relax and enjoy some sun. Well, maybe. Employers need to stay alert to the potential liabilities that linger whenever they host employees at a company-sponsored event. We have blogged the dangers of serving alcohol at company events and the open-ended risks involved in hosting company outings. Now we read of a strange case in New York that may expand company exposures just a little bit further.

The $200G Torpedo
The case involves Phyllis Caliano-Bahaj, who was relaxing on a beach chair at a state park in New York, watching her 8-year-old son and three other children. Suddenly, an approaching storm blew in with 29-mph winds. A beach umbrella flew about 20 feet into the air and slammed into Ms. Caliano-Bahaj's forehead, causing a severe cut and some permanent nerve damage. She sued the state. The state claimed that the umbrella belonged to another beach patron, not the lifeguards employed by the park. A judge said it didn't matter who owned the umbrella. The lifeguards, knowing the storm was coming, should have ordered all umbrellas down. As a result, the state settled the case of what one newspaper is calling "the $200G torpedo."

Where the state was held liable in this situation, it is not difficult to foresee liability for employers under comparable circumstances. You host a picnic at a park. Employees bring their own coolers, beach towels and umbrellas. A wind blows in, wreaks havoc, and someone is hit by a flying umbrella (or a wayward frisbee, or the edge of a kite...). It's no stretch to assume that employers will be held accountable for any injuries. The injuries may or may not fall under workers comp, depending upon whether the event was truly voluntary (no comp coverage) or employees were expected to show up (likely to be compensable).

We are not suggesting that employers forego company sponsored recreation. Team building can be an important part of attracting and retaining good employees. We're all for fun and games. But employers need to keep an eye on the risk exposures every step of the way. One person's fun can be another's torment (see a recent example here). Employers need to remember that any convening of the workforce assumes the employer-employee relationship. Yes, it's fun to have fun and connect as friends, but ultimately, employers retain a level of responsibility that goes beyond the bonds of friendship. So make your summer plans. Have a good time. But remember: being an employer is similar to being a parent. Your responsibilities never really end.

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May 17, 2006


Starting your first job? Congratulations! But before you start planning how to spend that paycheck, it's important to give some thoughts to staying safe on the job. It only takes a minute to have things take a terribly ugly turn, as Candace Carnahan can attest. In fact, every three minutes, a teen gets hurt at work, and about 70 teens die at work each year. Even a workplace that looks or seems safe may have hidden dangers. It's important to be educated in advance so that you know your rights and responsibilities. We've compiled a list of resources to help you:

OSHA Teen Workers site

Teen Summer Jobs: $afety Pays (OSHA)

Workplace Safety Guide for New Workers (ASSE) (pdf)

Guía para Nuevos Trabajadores sobre la Seguridad en el Lugar de Trabajo (ASSE) (pdf)

Teen Workers: Landscaping Plant Your Feet on Safe Ground (OSHA)

Teen Workers: Safety in Restaurants (OSHA)

Farm Safety (OSHA)

Are you a working teen? What You Should Know About Safety and Health on the Job (NIOSH)

¿Eres un Joven Que Trabaja? Cosas Que Debes Saber Sobre la Seguridad y la salud en el trabajo (NIOSH)

Young Workers' Health and Safety Website

Young Workers Zone (CCOHS)

Job Safe Canada

Passport to Safety: Candace's Corner

Young Workers

Young workers safety and health links (NYCOSH)

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May 15, 2006


All major businesses carefully construct a public image. Sometimes reality bumps up against the image with gale force winds. Insurance giant State Farm likes to present itself as a "good neighbor, someone you can count on." For nearly 700 homeowners whose homes were destroyed by hurricane Katrina, the good neighbor is beginning to look a bit like Jack Nicholson in The Shining. Picture a family huddled in the ruins of their home. A hatchet blasts through what's left of the front door and a grinning Nicholson says, "State Farm is here!"

State Farm has categorically denied insurance coverage for hundreds of homeowners in the wake of Katrina. The denials are based upon an engineering report developed by Haag Engineering, a Texas company founded in 1924 that specializes in failure and damage assessments. Famed attorney Dickie Scruggs says that the engineering report produced by Haag is "patently biased" because it concludes that Katrina's storm surge arrived before the wind could do any damage to policy holder homes. Because State Farm policies exclude flood damage, the claims of these 669 homeowners have been denied.

Scruggs has already lost one lawsuit when a court found that State Farm's policy of excluding damage from Katrina's flood waters are "valid and enforceable." So if the storm surge indeed destroyed the homes, these homeowners are simply out of luck. If, on the other hand, they can prove that at least some of the damage was caused by the winds that preceded the storm surge, they may be able to collect something. How much they collect will ultimately be determined by the courts.

Scruggs also claims in the lawsuit that many of the State Farm adjusters who inspected homes in Katrina's immediate aftermath told homeowners that wind damaged their houses hours before any water from the Mississippi Sound surged onto land. But State Farm apparently rejected their findings and fired, transferred or reassigned many of the adjusters. Exit Gregory Peck, enter Jack Nicholson. Depositions from current and former claims adjusters will make for interesting reading.

Good Neighbors versus Good Insurers
A good neighbor helps out, no matter what the circumstances. But that's not the way insurance works. Any help from an insurance company is contingent upon the language of a specific document. For hundreds of Gulf Coast residents, one thing is clear: their homes have been destroyed. Whether they will be reimbursed for their losses depends on whether the destruction came from wind or water. Good neighbors don't give a hoot about such distinctions, but insurers certainly do.

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May 12, 2006


As young, first-time workers enter your workplace this spring and summer, it's critical to redouble your efforts to ensure they work safely. Here are ten quick tips for employers, along with some resources for additional information.

Know the Law. Review federal, state, and local laws governing young workers, and ensure that your managers know them, too. Check work permits.

Make safety cool. Never underestimate a teen's need to be cool! Remember how enormous peer pressure was for you in your teens? Teens may not think it's cool to appear dumb by asking questions or wearing protective equipment. Break these barriers down!

Keep a sharp eye out. Watch your young workers closely for fatigue - they may not yet have the stamina of your experienced workers. Also watch for any signs of substance abuse and establish a zero tolerance standard.

Take a lesson from Madison Avenue. There's a reason why advertising works - it repeats a message frequently and in different media. Make sure your safety message stays top of mind at all times. Stuff safety tip sheets in your paycheck envelopes, hang signs everywhere, offer small incentives for good safety suggestions.

Train, train, train! Don't forget to make safety a number one priority in any training programs. State the policies and set expectations. Point out hazards, demonstrate things that could go wrong and be explicit. Teens have an illusion of immortality that you need to break through.

Buddy up. Pair a new teenage worker with an older more experienced worker for their first few days. Have the "safety mentor" check in on the teen frequently over the first few weeks of work. This will help to spread the responsibility throughout the workforce.

Get Mom & Dad involved. Send a letter to your new employees' parents telling them about your company's safety policies, and ask for their support in reinforcing the message.

Dress for success. Make your under-age workers visible to their co-workers in some readily identifiable way so everyone can look out for them. Give teens different colored name tags, uniforms or caps so that everyone can look out for them.

Hold managers responsible. Set your expectations with supervisors and managers, and schedule trainings in laws and issues related to teen workers. Make sure your expectations have teeth - put this important issue in performance reviews!

Walk the walk. Owners and senior managers need to set the example and live the commitment. Establish the priority in your organization. Walk through your workplace on unscheduled visits. Talk to teens one-on-one about safety and probe for questions or suggestions. Many teens may not yet be assertive enough to speak up with concerns. Correct hazards or unsafe behaviors immediately.

More resources
How safe are your favorite kids on their new jobs?
Workplace safety: the moral mandate of protecting young workers
Caution on summer hires
Summer hire turns tragic
Preventing Deaths, Injuries and Illnesses of Young Workers NIOSH
Do you employ young workers? OSHA
Young Workers NYCOSH

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May 10, 2006


Let's say you run a large insurance company. You sell through your own agents, one of whom has been a marginal performer for many years. You place the employee on probation several times, but he seems to be trying hard, so you continue his employment. This individual suffers from bi-polar disorder. Over the course of a decade, he goes out on FMLA leave a couple of times for treatment of his mental illness. When his doctors release him for full duty with no restrictions, he returns to work, but the poor performance continues. Finally, you give up. In accordance with company policy, you ask him to pack up his personal belongings and you escort him to the door.

He sues. You lose.

An article in the Boston Globe by Diane Lewis provides the details. A federal jury has awarded $1.3 million to a veteran insurance agent with bipolar disorder who alleged he was fired as a result of his disability.

The 11-member jury awarded Kevin W. Tobin, 60, $500,000 in emotional distress damages, $439,315 in lost wages, and $416,664 in lost pension and retirement benefits caused by his termination by Liberty Mutual Insurance Co. in January 2001.

In court papers, the company argued that from 1992 to 2001, Tobin failed to meet minimum standards and was placed on probation several times. The company also claimed that he rarely ''prospected" for new business.

Tobin's attorney, Frank Frisoli, argued during the trial that the insurance company did not adequately accommodate Tobin's disability as required by the Americans with Disability Act. During the trial, Frisoli said, Liberty Mutual argued that Tobin did not have a disability even though it had approved two prior disability leaves and created a reentry program to help the insurance agent improve his job performance.

Frisoli maintained yesterday that his client would have been able to perform the essential functions of his job if he had received the same amount of help as others in his office, including a top performer who was given three assistants. By contrast, Frisoli said, his client received sporadic assistance from a service representative who supervised other representatives and was not always available.

''He had difficulty going from task to task," said Frisoli. ''But he was willing to work long hours and he did it regularly to make up the work."

A Warning for Employers
It's premature to draw extensive conclusions from the limited information in this article, but here's the part that might truly alarm employers: by approving FMLA leave, Liberty appears to have undermined its contention that Tobin did not have a disability. (On the other hand, if they tried to deny his leave to seek treatment, they surely would have violated the ADA.) More important, once an employer approves FMLA leave (for an employee's physical or mental disability), you may be on the hook for a wide range of "reasonable accommodations," even if none are requested and even though eligibility for FMLA leave does not necessarily mean that the employee meets the ADA definition.

Liberty had a marginal employee. While they did try to provide some re-entry support to Tobin when he returned from his disability-related leave, they allocated most of their resources where they had the optimum effect on the bottom line: high achievers got extra administrative support. The low achiever, Mr. Tobin, got little help. Tobin's attorney was apparently able to transform this "business as usual" scenario into a "failure to accommodate." In other words, because of Mr. Tobin's disability, Liberty had an obligation to dedicate additional resources to bring him up to minimal standards. Liberty's lawyers failed to convince the jury that Tobin was simply unable to perform the essential functions of the job.

This case embodies a very tricky human resource issue that could confront almost any employer. From this distance, the jury award appears to blur the line between an employee's ability to perform the essential functions of the job and the employer's obligation to accommodate. It remains to be seen whether this is an important precedent, or something that will disappear in the course of Liberty's appeal. In the meantime, employers might want to begin to make a connection between FMLA leave and the obligation to reasonably accommodate.

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May 8, 2006


The Insider is determined to do its part in preparing the nation for a flu pandemic. Although the President did not specifically mention bloggers in his mobilization plans, we think that blogs offer a unique tool for getting out the word and for maintaining communications under adverse circumstances. Best of all, you don't have to come within three feet of a blogger to access the information.

The President states that "our efforts require the participation of, and coordination by, all levels of government and segments of society. State and local governments must be prepared, and my Administration will work with them to provide the necessary guidance in order to best protect their citizens. No less important will be the actions of individual citizens, whose participation is necessary to the success of these efforts."

Initial response to the President's plans have tended toward scepticism. There seems to be a sense at the state level that the feds don't plan to take much responsibility; that much of the burden will fall at the state and local levels; and that not much in the way of federal resources will reach the states as they confront the awesome challenges of a pandemic. It's like waiting for Katrina without a storm track.

Unity or Chaos?
The President tells us that "our Nation will face this global threat united in purpose and united in action in order to best protect our families, our communities, our nation, and our world from the threat of pandemic influenza." The Insider is not so sure about the unity in action. If the pandemic is as horrific as some project, we may see more chaos than unity. But one way or the other, we'll probably muddle on through.

For larger businesses who want to give it a shot, the CDC has put together a comprehensive planning checklist. It's full of generic advice that is certainly useful, but may prove really difficult to implement. For example, one recommendation is to "establish policies for employees who have been exposed to pandemic influenza, are suspected to be ill, or become ill at the worksite (e.g., infection control response, immediate mandatory sick leave)." How would you define and implement "immediate mandatory sick leave"? Many employers will balk at the prospect of uniformed guards, in protective masks, escorting unwilling workers to their cars. Most HR departments would need a few months to work out the kinks in this one policy area.

Basic Hygiene
No matter how sophisticated your planning may be, executing a flu game plan may come down to the basics. People should not get too close to one another (stay at least three feet apart). Most important, people have to know how to cough and sneeze. The government has a poster (available in five languages) here.

Here's the text of the poster, with a few annotations:

To help stop the spread of germs,

Cover your mouth and nose with a tissue when you cough or sneeze. [Have you ever noticed how many people routinely fail to do this? For people who do it wrong, should progressive discipline apply, or is it "one unprotected sneeze" and you're tossed out of the workplace?]
If you don't have a tissue, cough or sneeze into your upper sleeve, not your hands. [Might work in a factory, but not practical for those in Armani suits.]
Put your used tissue in the waste basket. [Most industrial workplaces I've toured lack waste baskets.]
Clean your hands after coughing or sneezing. [If you wash after each cough/sneeze, as you're supposed to, there will be a lot of lost productivity.]

Wash with soap and water. {Assumes that these are readily available.]
Clean with alcohol-based hand cleaner.
[Might not be practical in many work environments.]

Just-In-Time Management
I have a strong suspicion that very few companies (and few families) will take the necessary steps to prepare for the Big One. When it comes to what appear to be remote risks, we all practice just-in-time management and hope for the best.

In a pandemic, as long as electrical power is available, people should be able to access computers and communicate over the net. Many, the Insider included, will be able to work from remote locations. Sooner or later you may want to check out an interesting, net-grown resource called fluwiki. Based upon the open-sourced format of Wikipedia, fluwiki is public flu compendium, focused in a very practical way on managing families and businesses during a pandemic. The home-grown survival lists are more entertaining that those provided by the CDC. Even if you are convinced that this pandemic will never happen, you might want to save this site under your favorites for future reference. You never know when it might come in handy.

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May 5, 2006


It's a sunny, mild Friday and the mind wanders away from work, to the ballpark. The Insider has been thinking about Jeff Bagwell. For Red Sox fans, Bagwell will always be the one who got away, traded in 1990 to the Houston Astros in an ill-advised deal of legendary proportions. The Sox acquired the services of an aging relief pitcher named Larry Anderson for a couple of months. Anderson was gone by the end of the season. Bagwell went on to a stellar career with Houston, ringing up huge numbers with his bat. His lifetime batting average is near .300. He is ranked among the top five first basemen of all time. Now, in the twilight of his career, his skills are diminishing. The question has become, does a man who can barely throw a baseball 35 feet meet the definition of disabled?

Bagwell's disability is the subject of a lawsuit between the Houston Astros, who say he's disabled, and Connecticut General Life Insurance, who says he was not disabled during the period the disability policy was in effect.

To acquire disability coverage, the Astros paid $2,409,343 in premiums. (You have to wonder how underwriters and actuaries determine premiums for this type of risk.) Bagwell makes about $18 million a year. (We are a nation with awesomely aligned priorities, that's for sure!) The terms of the Policy are relatively straightforward. It provides a schedule of benefits payable to the Astros in the event (a) Mr. Bagwell becomes totally disabled and (b) the terms of and conditions of the Policy are met.

$86K a day!
Under the Policy, the Astros are to receive $85,748 for each regular season day that Mr. Bagwell misses due to total disability. (In the world of workers comp, where indemnity is tied to the state average weekly wage, $86K represents the total lifetime settlement figure for a major disability.)

Bagwell, who is currently on the 15-day disabled list with arthritis and bone chips in his right shoulder, was deemed disabled as a professional baseball player by two physicians in January. Based on those reports, the Astros filed their insurance claim on January 27, just four days before the policy ended.

On March 13, Connecticut General sent a denial letter to the Astros, based upon the fact that Bagwell was an active player in last year's world series and then showed up for spring training this year. In other words, he was not disabled in the fall and he was not disabled in the spring. They don't accept the January finding. The Astros counter that Bagwell's being on the series roster was in honor of his years of service to the team, not his very limited capabilities last fall. And even though he tried to play in spring training, his injuries prevented him from doing so.

Modified Duty?
Unfortunately for the carrier, the Astros play in the National League, where there is no provision for a designated hitter. Even though Bagwell's bad shoulder prevents him from throwing the ball well enough to play the field, he might be able to swing a bat. But that "reasonable accommodation" would be an option only in the American League.

So no modified duty for Bagwell. It's full duty or nothing. The amount of money at stake in this situation is mind-boggling. On a common sense level, it's simply absurd. It's enough to make you shut down your computer and head home, where you can set up a portable TV on the patio, pop open your favorite brew and catch the first pitch of the weekend series.

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May 3, 2006


If you are a parent of a high school or college age kid, you are probably familiar with the quest for the summer job. Between Memorial Day and Labor Day, more than 2 million teen workers flock to the workplace, many for the first time. Think back to your first job - it can be an exciting thing to earn that first paycheck. It can also be very dangerous. Every year, about 70 teens are killed on the job and about a quarter of a million suffer injuries on the job (source). That means that about once every three minutes, a teen gets hurt at work.

All first-time workers are vulnerable to work injuries, teens especially so, often because of youthful feelings of invincibility. New workers aren't yet work hardened. Because they don't know their limits, they are more susceptible to overexertion, strains, and sprains. Young workers typically aren't seasoned enough to have good judgement about risks. Eager to make a good impression, they often don't want to ask for help, question authority, or call attention to themselves in any way.

Most work-related teen deaths occur as the result of motor-vehicles or as a result of machine related accidents. Agriculture has accounted for more than 40% of these fatalities, followed by the wholesale/retail trade, and construction. Frequent nonfatal injuries include lacerations, contusions, abrasions, sprains, or strains. Weather related injuries are also common - sunburns, heat exposure, and the like. The pattern of nonfatal injuries follows the most common types of employment: wholesale/retail and service industries.

Over the month, we'll follow up with more information on this topic. today, we'd like to address parents, and urge parents (or aunts, uncles, friends) to be proactive about teen worker safety:

Familiarize yourself with child labor laws in your state. Know the hours they can work, and restrictions on the type of work they can do. For example, according to the the American Society of Safety Engineers (ASSE):

" law, your employer must provide protective clothing and equipment necessary for your job, payment for medical expenses if you are injured at work and training in on-the-job safety; and, that on a school day, a 15-year-old is only permitted to work up to three hours a day. Sixteen year-olds are limited to the type of work they can do. For instance, out of these jobs -- A. operating a meat slicing machine at a deli counter, B. driving a forklift at a warehouse, C. waiting tables at a restaurant, or D. performing demolition work at a construction site -- a 16 year-old is legally only allowed to work waiting tables.
... Teenagers are not allowed to work in mining, logging, meatpacking, roofing, excavation or demolition, according to labor laws. They cannot drive a car or forklift or work with saws, explosives, radioactive materials, or most machines."

Take a detailed interest in your teen's work - talk to your child about what they do on the job and talk specifically about safety matters. Ask a lot of questions:
-Do you work alone?
-Who is your supervisor? Is he or she in your work area with you?
-Do you use any equipment or machinery? Have you had training?
- What would you do if…

Trust your instincts - call or visit a workplace before your teen starts work. If you have any misgivings after work starts, follow-up with the boss or the supervisor.

Other resources for parents:
Department of Labor's Youth & Labor page
OSHA: Do you have a working teen?
Clocking in for Trouble - Teens and Unsafe Work
Teen Workers: Avoid 2005’s Five Worst Jobs this Summer
Working the Smart Shift: Helping Parents Help their Teens Avoid Dangerous Jobs
Driving on the Job: New law for teen Workers
Teen Driving Safety
Your Teen at Work: Tips for Parents

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May 2, 2006


The Insider is feeling a bit annoyed with plagiarists (not that we're aware of anyone copying us lately). We think it is very peculiar that talented people borrow the work of others writers and then immediately forget they did it. These same people never forget who owes them money. They never forget the name of a reporter (or blogger?) who criticized them. They never forget to execute stock options in a "timely" manner. Yet they copy whole paragraphs from other writers and immediately suffer a profound memory lapse. Whether you’re a sophomore at Harvard or the CEO of Raytheon, you are where you are because you have a steel trap for a memory, formidable intelligence and over-weening ambition. Can a poor memory be part of the same package? I doubt it.

"How Opal Got Caught..."
Harvard sophomore Kaavya Viswanathan’s novel, "How Opal Mehta Got Kissed, Got Wild, and Got a Life," was recently pulled from the market by her publisher. (The title alone should have been reason enough not to publish the book!) Ms. Viswanathan has called the borrowing of some 40+ verbatim passages from another book about adolescent angst "unintentional and unconscious." Given the relentless ambition, the unwavering intent and the conscious planning required for getting into Harvard these days, I am not convinced.

Mr. Swanson, Raytheon's CEO, suffered a similar spate of adverse publicity when a reader happened upon the 1944 book "The Unwritten Laws of Engineering" by W. J. King, an engineering professor at the University of California, Los Angeles. It turns out that Swanson’s rules 6 through 22 can be found virtually word for word in the King book. In a press release, Swanson says that “While many of [his book’s] sources remain anonymous, clearly, the similarity of the language between Professor King’s 1944 book and some [ie. most] of the rules within the ‘Unwritten Rules’ is beyond dispute." “Similarity of language” makes it sound almost innocent. This is copying, pure and simple. (It's interesting to note that "Swanson's Unwritten Rules," like Viswanathan's book, has been pulled off the market.)

Swanson's Rules, Revisited
Before Swanson's unwritten rules fade into a richly deserved oblivion, let’s review them one last time. When we first blogged these rules, we assumed that Swanson had indeed written them. Even then, the rules often veered perilously close to cliche and platitude. This time we’ll look at them from the perspective of a memory-challenged CEO.
o Learn to say, "I don't know." If used when appropriate, it will be often. For example, if someone asks you if you were you aware that you copied extensively from another writer, simply look puzzled, say you don't know and assure them that the "similarity of language" was inadvertant.
o It is easier to get into something than it is to get out of it. Like passing something off as your own work, when someone else wrote it.
o If you are not criticized, you may not be doing much. And if you’re criticized for plagiarism, you may be doing too much of the wrong thing.
o Look for what is missing. Many know how to improve what's there, but few can see what isn't there. What isn't there is candor. If you steal someone's work and get caught, own up to it.
o Viewgraph rule: When something appears on a viewgraph (an overhead transparency), assume the world knows about it, and deal with it accordingly. You might also assume that when a book has been published, someone somewhere has a copy of it.
o Don't be timid; speak up. Express yourself, and promote your ideas. Heck, promote someone else’s ideas. Just promote!!
o Be extremely careful of the accuracy of your statements. Where exactly did these "unwritten rules" come from?
o Don't overlook the fact that you are working for a boss. Keep him or her informed. Avoid surprises! Whatever the boss wants takes top priority. Even when you consider that Swanson is the boss, being charged with plagiarism comes under the general heading of “surprises” to be avoided.
o Cultivate the habit of making quick, clean-cut decisions. Do I bother giving credit to Professor King or not? Nah, go for it, Swanie!
o Don't ever lose your sense of humor. Agreed, but it’s tough to laugh your way through this one!
o Have fun at what you do. It will reflect in your work. No one likes a grump except another grump. Go away! No more interviews. Mr. Swanson is feeling a bit grumpy at the moment.

Rule #34a
Swanson’s damage control press release ends with the following statement: “This experience has taught me a valuable lesson – new Rule #34: ‘Regarding the truisms of human behavior, there are no original rules.’” Does that mean Mr. Swanson has no original ideas about good management? I doubt that’s his real message. Here’s the Insider version, rule #34a, applicable to Mr. Swanson and Ms. Viswanathan (with their eerily similar names): "Either express your ideas (regardless of the source) in your own words or give credit where credit is due.”

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