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July 28, 2006

The Definitive Word on Goofing Off: Horseplay and Humor on the job

Julio Medina was a baker for the Panera Company. He routinely moved large racks of baked goods over a greasy, slippery floor. The employer provided "slip-resistant" shoes (which didn't work very well - they usually don't). After complaining to his supervisor about the slippery conditions, Medina, with a smirk on his face, lifted his right leg as if to kick a co-worker (who happened to be well out of kicking range). Medina slipped and fell, spraining his wrist and suffering a hernia.

When Medina filed for workers comp benefits, his employer objected, saying that his horseplay (the feigned kick) was outside of the course and scope of employment. Panera pointed to the fact that they did not tolerate horseplay - any such activities were subject to disciplinary action.

The ALJ and the Colorado Court of Appeals sided with Medina. In their thoughtful and clearly written opinion (PDF), they cited Professor Larson's four point test on horseplay, which examines:
1. the extent and seriousness of the horseplay. [Medina's kick was very short-lived indeed];
2. the completeness of the deviation - in other words, how far outside of the usual course of work did the horseplay extend [Medina's act was a direct extension of the work and the working conditions]
3. the extent to which horseplay was a regular part of the work [the court found no reason to question Panera's contention that horseplay was generally not tolerated]
4. the extent to which horseplay is expected in the work environment [some jobs are inherently playful; we might assume that baking bread is not].

It's important to note that the four criteria are independent of one another; you don't need to demonstrate all four to achieve compensability. In Medina's case, compensability was probably determined solely in point number one: this was an unpremeditated and spontaneous act arising directly from his employment. The working conditions - slippery shoes and greasy floors - contributed directly to the injury. While Panera's appeal is understandable, there is no way that Medina loses this case.

Horseplay vs. Humor
There is an important distinction to be made between horseplay and humor in the workplace. It would be counter-productive, if not impossible, to stamp out every vestige of fun in the course and scope of the working day. Human nature requires a bit of comic relief, especially in jobs that are repetitive and boring. Humor can be a welcome relief - as long as it does not come at the expense of a class of employees - women, minorities, short people, obese people, etc. Humor often raises a number of concerns, but safety is not usually one of them.

Horseplay, on the other hand, all too often crosses a line into immediate risk of harm to workers. Medina's injury was the result of a spontaneous and short-lived act. There's not a whole lot management could do to prevent the injury. When employees start goofing off in a workplace full of hazards, management needs to intervene as quickly and decisively as possible. Fun ends abruptly when horseplay results in an injury. Just ask Mr. Medina.


Special thanks for the heads up on this case to Michael Fitzgibbon, whose informative and well-written blog covers employment law from the perspective of the beautiful country to our north.


Posted by Jon Coppelman at 10:27 AM Link to, Comment (0), or E-mail this post
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