Frank Lima works for the Los Angeles Fire Department, where he oversees the screening of recruits. Back in 2004 he was supervising a training drill that involved hoisting heavy ladders against a building. A woman trainee later complained that she was singled out and harassed during the drill.
Soon after, Assistant Fire Chief Andy Fox told Lima that women have to be treated differently, in order to boost their numbers in the department. Women had to receive preferential treatment. Lima was at first suspended two days for the ladder incident. Then the suspension was rescinded and Lima received a reprimand.
Lima sued the city, alleging that he suffered heart problems and stress after the department tried to punish him and subsequently denied him certain assignments. A jury recently awarded Lima $3.75 million, including $2.96 million for pain and suffering. That seems like a lot of money under the circumstances, but this is, after all, California. And there is no doubt that Lima was put in an untenable position. In the aftermath of the lawsuit, Andy Fox, formerly in charge of the Department’s disciplinary system, was reassigned. He now oversees risk management. (I will let our risk management readers figure out the logic of this particular demotion…)
In its haste to increase the number of women fire fighters – with pressure coming directly from City Hall – the department clearly put Lima in an impossible bind. He was given specific criteria for evaluating all applicants, and then told to fudge the criteria for one particular group. He was ordered to cut women some slack. The fundamental questions, of course, are what the essential functions of the job are and the degree to which women can perform them. I wonder whether moving those heavy ladders is something any and every fire fighter has to be able to do. Essential functions are not necessarily performed frequently, but in this specific job they might well involve the ability to save lives under very challenging circumstances.
The Fire Department unfairly asked Lima to compromise his standards. They should have examined the standards objectively and determined whether they were reasonable and necessary, or whether they simply created artificial barriers to women who want to fight fires. This is an organization issue, not something that should have been dumped into the lap of one individual.
Testing the Tests
Given the liabilities that accompany the decision to hire someone, employers are trying to reduce risk by learning more and more about job applicants. Some of the approaches are crude: eliminating any applicant who fails a drug test. Some are more sophisticated: the use of credit and medical histories, psychological testing and physical profiling (no obese people need apply). Ultimately, all screening techniques boil down to a single issue: who is eliminated and why?
The EEOC is looking into the whole issue of pre-employment testing and employee profiling. Clearly, this is an area with a lot of potential for discrimination and abuse. The EEOC is examining written tests, the use of criminal and credit histories as a basis for selection, medical exclusions in hiring, and employer best practices.
Firefighter Lima’s lawsuit should serve as a reminder: whatever tools and standards employers use to screen applicants, they must strive for transparency. Establish reasonable criteria and apply them uniformly. If the criteria have a disproportionate impact on one segment of applicants, re-examine the criteria carefully. (We blogged just such a situation here.) Make sure that your standards are up to standard. This is not easy, nor is it static. Today’s accepted standard is tomorrow’s act of discrimination. Employers are being buffetted by powerful and conflicting pressures. As Lima’s story clearly demonstrates, the consequences for doing the “right thing” in the wrong way are severe. His saga is a lesson for us all.
Archive for June, 2007
Pre-employment Testing: Between a Rock and a Very Hard Place
Tuesday, June 12th, 2007News roundup: SC, AZ, NY, energy workers, and dangerous jobs
Monday, June 11th, 2007South Carolina – Lawmakers reach deal on workers’ comp overhaul. In a long-awaited move, legislators came to agreement on workers comp reforms this past Friday, but the full House and Senate will need to approve the bill when they return for a special session June 19. As expected, the Second Injury Fund will be phased out by 2013. Also, fraud penalties have been toughened – particularly for employers who potentially face stiff penalties and jail for premium fraud or for failure to carry workers comp coverage. It also makes it a requirement that employees and their physicians provide information to employers and insurance claims handlers; defines repetitive trauma; clarifies payment for shoulder or hip injuries; and offers a mechanism for employers to more broadly challenge back injury claims and permanent disability.
Arizona – The legislature has given preliminary approval to a labor-employer compromise bill that would increase benefit caps for workers’ compensation. Benefits are currently capped at $2,400 and would rise to $3,000 and $3600 in 2008 and 2009 respectively, and then be adjusted annually by as much as 5 percent. Business interests came to agreement to avoid the possibility of a ballot initiative and labor in turn modified their demands and agreed to work to with business on medical cost issues.
New York – State Insurance Superintendent Eric Dinallo has unveiled a plan to reduce the time of workers’ comp dispute resolution from the current 6 months to 90 days. This plan is an offshoot of the recent state reform that raised the benefit from $400 to $700 a week. Meanwhile, also in New York, Joe Paduda discusses an attempted rollback of a reform measure that would allow employers to direct workers to designated pharmacies.
Cold war workers still out in the cold – In an ongoing shameful saga, Rocky Flats nuclear workers face potential benefit denial this week as their case is considered. The nuclear workers continue to die from cancer while federal health officials and a White House Advisory board dispute the rules of a 2000 law intended to compensate energy workers in America’s nuclear agencies who were exposed to damaging levels of radiation. Governor Ritter has appealed to the board to help the ailing workers and threatens to bring the matter to Congress if help is not forthcoming.
Meanwhile, a similar benefit battle is being waged by Dow Chemical workers and their survivors in Madison Illinois. This news story from the St. Louis Post-Dispatch offers an excellent overview of the history and issues facing workers in their uphill battle to get compensation. For more background, see Out in the cold; America’s cold war energy workers.
Dangerous Jobs – There’s a terrific photo essay on Alaskan Fishermen in the art magazine with the unflattering name of Fecal Face, which is a good follow-on to the Discovery Channel’s Deadliest Catch series. The job of fishing in Alaska continues to be among the riskiest work in the nation.
“Can’t Take It No More”: OSHA’s Hollywood Moment
Thursday, June 7th, 2007In 1972, twelve years before I founded Lynch Ryan and workers’ compensation entered my life in a meaningful way, after completing a rather extended, all expenses paid trip to Southeast Asia (beautiful scenery, but a bit inhospitable when I was there), I said goodbye to the armed services only to say hello to the armed services. America was in the middle of a recession and jobs were hard to come by, so I accepted an offer to become a safety trainee for the US Army at Fort Devens, Massachusetts. The safety program at Fort Devens, run by a nice fellow very close to retirement, seemed more of an afterthought than anything else, so I thought the career prospects had nowhere to go but up.
Just two years earlier President Nixon, to great fanfare, had signed into law the Occupational Safety & Health Act, which created a new federal administration called OSHA. (Actually, Nixon had fought tooth and nail to prevent OSHA’s passage, but upon realizing that this was one battle he was going to lose, he had a big signing ceremony and took credit for the whole thing – they didn’t call him “tricky Dick” for nothing.)
I entered the safety profession when OSHA was in its ascendancy. The Act gave OSHA teeth (the general duty clause, alone, was sharply fanged), and American business quickly stood up, took notice and started to make changes. It’s true that early on OSHA’s rules were confusing, its personnel inconsistent, at best, and its enforcement procedures controversial. But in August, 1972, when I found myself in the business, OSHA was getting its sea legs. The Army’s safety training program that I entered embraced OSHA, even though the ACT specifically excluded the federal government from having to follow OSHA’s rules. Three years later, when I became the Director of the Army’s safety efforts throughout New England, and would travel up and down the east coast lecturing on safety and health, it was obvious that OSHA was a big stick.
In 1979, with assistance from the AFL-CIO, OSHA produced a 27-minute movie called “Can’t Take It No More.” Narrated by Studs Terkel, it carried a powerful message, offering a history of the safety movement in America and targeting worker health. As part of our program, my training department would screen the film repeatedly over the next year and a half for soldiers and civilian employees.
In 1981, one of the first things the new Reagan administration did as it began to reverse OSHA’s aggressive thrust by ushering in “voluntary compliance,” was to recall all governmental copies of “Can’t Take It No More” and forbid any organization seeking government funding for a safety program from showing the film. I recall having to box up our three copies and send them back to Washington, DC, where they were to be destroyed. That was when I knew that, for OSHA, the good times were over.
I was reminded of all this yesterday when I read a brief piece about “Can’t Take It No More” written by Jordan Barab, one of the nation’s most passionate and dedicated safety advocates. Jordan even provided a link to the film itself, and I spent 27 minutes in a virtual time machine viewing this classic. You can do the same thing here: “Can’t Take It No More” .
Thanks Jordan.
Cavalcade of Risk – 1st anniversary edition
Wednesday, June 6th, 2007There’s nothing worse than throwing a party and having no one show up. Such was the case when I prematurely cracked open the champagne to celebrate the first anniversary of Cavalcade of Risk a few weeks ago and learned that the commemorative date should actually be this week. As Miss Emily Litella would say: “never mind.”
So the real party is over at Hank Stern’s InsureBlog today – very fitting, since Hank has been the chief cook and bottle washer since he first launched the carnival. And today’s anniversary issue of Cavalcade of Risk is a good example of why I like these blog smorgasbords – they’re a great way to sample a variety of blogs in a given topical area.
And don’t throw away your party hats – here at Workers Comp Insider, we’re next up to bat – we’ll be hosting the Cavalcade for the June 20th edition.
Jeffry Armbruster: A Player in Ohio’s Tammany Hall
Tuesday, June 5th, 2007Jeffry Armbruster runs 22 convenience stores and gas stations in Ohio. Like many business owners, he thinks he pays too much for workers compensation coverage. But unlike most business owners, as a state senator in his scandal-ridden state, he was in a position to do something about it. He initiated some informal talks with the folks at the Bureau of Workers Compensation and walked away with an 88 percent rate reduction. I’m sure his being the vice chair of a committee that dealt with the bureau’s legislative needs had nothing to do with the favorable treatment. He was simply reaping the just rewards of an awesome safety program! Now the former senator (term limits, not voter nausea) is facing a conflict-of-interest investigation and possible criminal charges. When it comes to conflicts of interest, our man Armbruster is a master.
A google search reveals that back in 2002 he tried to do a favor for Gino Zomparelli, executive director of the Ohio Turnpike Authority. Armbruster tried to raise the floor for no-bid contracts to $50,000 (a 500 percent increase). Unfortunately for Zomparelli, some turnpike workers dropped a dime and an investigation followed – one that revealed that Gino and his staff were already raking in gifts from contractors, including football and baseball tickets, dining and entertainment. All these nice goodies even with very low limits for no-bid contracts in effect. Gino and a bunch of other authority administrators were forced to resign.
Armbruster was a member of a committee overseeing the turnpike authority when he filed the bill. Rather than apologizing for what appears to be a blatant disregard for his legislative role, Armbruster said that he was merely serving as “a bridge between the legislature and the commission.” Some bridge!
In 2004 the ethically challenged senator had to file for bankruptcy. His gasoline supplier stopped deliveries when he fell behind to the tune of $198,722. He also owed money to the state on his 19 lottery terminals. After some hasty negotiations, Shell resumed deliveries and the state lottery commission allowed him to resume ticket sales (cutting the senator a break – now that’s a shocker!). By the way, Armbruster sits on the board of the national convenience store operators association. He’s also on their legislation subcommittee. His type of experience is priceless! (Well, not exactly lacking a price…)
I suspect that the road ahead for the former senator is full of concrete and steel: no, he won’t be building roads or adding to his convenience store empire. He’ll be joining a number of his Ohio colleagues in the slammer (most notably the infamous coin dealer Tommy Noe), where he’ll have plenty of time to contemplate the sudden demise of Ohio’s quid pro quo politics. And we all thought corruption on this scale disappeared with Tammany Hall …
De-legaled Emigrants: Contractors in Iraq
Monday, June 4th, 2007In March of 2004 four contract employees of Blackwater Security Consulting were sent out into the streets of Iraq to provide an escort to a food convoy. They lacked heavy armour, they were never briefed on the nature and parameters of the job, and there was no pre-mission reconaissance. Oh, they also lacked a street map. You will remember these four men: they were ambushed and shot by insurgents, their bodies were burned, and the charred remains were hung from a bridge across the Euphrates River in Fallujah.
We know that these contract employees were covered by workers comp (see Julie Ferguson’s previous blog here.) But what about employer negligence? Is Blackwater accountable in any way for these deaths? We may never know. We read in the Gulf Times, that after years of legal wrangling, the case has been sent to arbitration, where the proceedings will remain confidential and the rulings will be binding.
Prior to working, all Blackwater contract employees sign a document releasing the company from “any liability whatsoever” even if it is the result of “negligence, gross negligence, omissions or failure to guard or warn against dangerous conditions.” I hardly need add that such language in a stateside employment contract would be illegal and unenforceable. But in Iraq, birthplace of the middle east’s new democracy, anything goes.
Lawyers for the four workers had hoped to invalidate the contract itself: the lawsuit alleged that Blackwater broke explicit terms of its contract by sending the men off without sufficient preparation and protection. Blackwater is lucky that Iraq is beyond the reach of OSHA, where employers must provide a workplace free from unusual risk of injury. As Borat would say: “Not!”
Unprotected Emigrants
we have been blogging the plight of undocumented workers in this country: substandard working conditions; substandard pay; marginal benefits. Despite all these problems, they may have better employment protections than contractors in Iraq. We are sending U.S. citizens into harms way with virtually no employer accountability and no protection.
Lawyers view the judge’s decision in this particular case as a victory for Blackwater. Even if the company has to pay for these deaths, their approach to employment – the blanket release of employer accountability for any and all of the dangers that employees face in Iraq – remains intact.
Put enough money on the table and people will sign anything. It’s only in the agony of retrospection that the consequences of a simple signature are truly understood. Nearly one thousand private contractors have died in Iraq. I wonder how their parents, widows and children view in hindsight the hefty hourly wages available in that absurdly dangerous country. Perhaps the families have a newfound appreciation for the protections offered to all workers in America, where we at least theoretically hold employers accountable for the way they train and support their employees.
