Wednesday, February 4, 2015

The Safe Workplace - Some Thoughts on Carrots and Sticks

When I was in college, a management class introduced me formally to the concept of motivation. The professor explained that in business we would see methods involving both the "carrot" and the "stick." As Miriam Webster explains, this refers to "the use of both reward and punishment to induce cooperation." The "carrot" is a reward and the "stick" is punishment.

In retrospect, my parents taught me about the concept much earlier in life. They just did not name it. And, at the time, I was more interested in getting to do what I wished and less interested in the management theory that was being employed to motivate me.  

It may seem that one person's "carrot" is another's "stick." By that, we mean that when one person is benefited, generally there is a corresponding detriment to someone else. But in the context of management theory, the issue is who is being motivated; that is, at whom is the motivation directed. If the focus of the motivation is being deterred, then it is a "stick" even though some other entity may benefit. Conversely, if the party who is to be motivated benefits, then it is a "carrot" even though some party may meet a corresponding detriment. 

A recent case out of New Mexico reminded me of the dichotomy.

Florida has several safety provisions in Chapter 440. There is section 440.1025 which facilitates rate discounts for employers with safety programming in place. This is a "carrot" for employers. There is also section 440.09, which allows decreasing compensation payable to an injured worker who has failed to use a safety device. This is a "stick" for employees. Some would argue that it is also a "carrot" for employers, encouraging the provision of safety devices.  Fla. Stat. 440.09(5) provides:

"If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee's knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation provided in this chapter shall be reduced 25 percent."

Various safety devices and rules have been cited in this context. For example a vehicle safety belt in Hanna v. Robinson Tractor Service. Another interesting example is the use of a harness by a trapeze artist in Aleksandr Bondarenko v. Cole Brother's Circus. There is a "Search JCC Final Orders" box at the top of our website,, where you can search for any final order content. For more examples search for something like "safety appliance" or "knowing refusal" or "440.09(5)" and you will find trial orders in which this statute is cited. 

New Mexico has a little different approach that was recently noted in a decision there. In Benavides v. Eastern New Mexico Medical Center, the court explained the "carrot" result under New Mexico statute 52-1-10. Under New Mexico law, there are both a "carrot" and "stick," and their law operates a little differently. 

New Mexico has an employee "stick" for failure to use a safety device or failure to follow statutory regulation. Section 52-1-10A provides: 

"In case an injury to, or death of, a worker results from his failure to observe statutory regulations appertaining to the safe conduct of his employment or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under the Workers' Compensation Act [this article] shall be reduced ten percent."

In this context, it is similar to Florida law, though less of a reduction in benefits, 10% compared to 25%. The New Mexico statute, however, goes further. If the New Mexico employer fails "to supply safety devices in general use for the use and protection of the worker, the Workers' Compensation Act (the Act) requires that a workers' benefits shall be increased by 10%."  Thus a "stick" for the employer. Section 52-1-10B provides:

"In case an injury to, or death of, a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if an injury to, or death of, a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker, then the compensation otherwise payable under the Workers' Compensation Act shall be increased ten percent."

In Benavides, the court concluded that a "wet floor" sign was just such a "safety device in general use." Following a slip and fall in the absence of such a sign, the injured workers' compensation was increased 10%. One might argue that the Florida statute is an incentive for employers to provide "safety appliances." Others might argue that the New Mexico provision provides a greater incentive for the employer to focus on safety by providing those "safety devices" that might be commonly expected in the workplace. Opinions will vary.

One important take-away, however, is that there are a multitude of similarities between the various states' workers' compensation laws, and yet a multitude of differences. Some may be profound and others more subtle, but interesting to study in any event. 

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