Archive for May, 2006

Accommodating a Mental Disability

Wednesday, May 10th, 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.

United we Fall: Preparing for the Next Pandemic

Monday, May 8th, 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.

Disability in Baseball: Bagwell’s Long Goodbye

Friday, May 5th, 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.

How safe are your favorite kids on their new jobs?

Wednesday, May 3rd, 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):

” …by 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

Bill Swanson’s Unwritten Rules of Management, Revised and Annotated, with Proper Citations

Tuesday, May 2nd, 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.”