Thursday, March 29, 2018

Annual Survey 2018

It is that time of year again. For the eleventh year, the Florida Office of Judges of Compensation Claims (OJCC) joins with the Workers' Compensation Section of The Florida Bar to collect your perceptions regarding the OJCC judges and mediators. We will deploy the 2018 survey on Monday, April 2, 2018. If you are an attorney and either a registered OJCC e-filing user or Section member, you should receive an email invitation. The deployment was announced with an email to all of our registered users this week. 

The OJCC Survey is intended to fulfill two main functions, to provide subjective perceptions and constructive suggestions for change. It is acknowledged that the spectrum of statistical measures published each year in the OJCC Annual Report provide objective indicia of efficiency, effectiveness, and performance. There is objective demonstration of petition volumes, litigation trends, and timing, But, the survey provides opportunity to move beyond numbers, and express perceptions. 

It started in 2007 with perceptions and feelings expressed. Bench and bar relations were at the nadir. There was discussion with the Section, and a general consensus that practitioners have perceptions about judges, mediators, and how offices perform. Those discussions included thoughts about the objective, statistical measures. The consensus was that a measure of subjective perceptions of performance would augment and supplement those objective measures. And in 2008, the first joint survey was deployed. 

The survey is subjective. Opinions and conclusions, everyone has them. We all perceive the world around us, compare our perceptions to our personal world view, and we make conclusions. And throughout our lives, we are all likely to be influenced by our personal bias, preconceptions, and perspectives. Bias is something we must each acknowledge, recognize, and strive to overcome. This overcoming is critical for the survey, and would benefit us all generally in our lives. 

Bias may affect the process when we review performance, which is done periodically in most employment settings. When we are asked to evaluate performance, we should remain vigilant about the potential for personal bias to interfere with the process. If we acknowledge the potential for bias, recognize the potential, then we can strive to overcome bias. This is true in the evaluative process, and can be similarly engaged in our lives generally.  

Learn That (a management website) cautions about five types of bias that can interfere with effective evaluation. "Recency Bias" can cause an evaluator to "over or under value short term events to the detriment of the employee’s long term performance." In other words, are you allowing your most recent experience with a judge or mediator overpower or unduly influence perceptions? When you evaluate, are you remaining conscious and respectful of a variety of experiences and interactions?

The "Halo Effect" is similar, but instead of focusing the evaluator on a particular interaction, the halo effect focuses the evaluator on a particular skill. In light of perceptions of a particular strength or weakness, the evaluator may allow her/himself to be influenced regarding evaluation of other skills, abilities, or performance ("she is so nice"). If someone is "stellar in one area," then we should say so, but that should not keep us from acknowledging room to grow in others. 

The "Central Tendency Bias" is one that most of us will acknowledge we have employed. This describes our tendency to group most people "into middle level grades while having some extremes in the top and bottom."  This is an expediency, which may make completion of a survey easier and quicker (mark all the "average" boxes), but which may fail to address "all of the contributions and problems of" those evaluated. 

The "Spillover Effect Bias" describes our tendency to measure current performance through the filter of our previous evaluations. That is, we may use someone's results on a prior evaluation as a reference point. This can cause an evaluator to "unfairly weight" factors and perceptions of performance. Previous evaluations considered previous performance. In evaluating current perceptions, the evaluator should consider current performance and ignore previous evaluation outcomes. In the OJCC Survey, that means since the last survey, roughly the last twelve months.

Finally, there are "Personal Biases," and they may be the most challenging. It is not appropriate to evaluate performance based on whether someone is "like me," or even if they are "liked by me." A review of performance should be about effort exerted, focus, dedication, courtesy, professionalism, and outcome. That we dislike someone, are distracted or put-off by some personality trait ("I hate the way he . . ."), or know we could personally perform a task better are not the standard. The standard should be whether the person professionally exerts appropriate effort and accomplishes successful outcomes. 

These are but a few of the potential bias effects. Others include "confirmation" bias (unconsciously favoring data that fits pre-existing views), "bandwagon effect" (forming opinions based on perceptions and statements of others), "anchoring" bias (basing all conclusions on some initial data point or conclusion), "selection" bias (results are predetermined by the selection of who will participate), and "reporting" bias (deciding whether to report based upon the outcome). These are more fully discussed here, and the article is a worthy read.

In the end, we will email close to 5,000 invitations to participate in this study. They will go only to attorneys. Some will argue that is "selection" bias, in excluding injured workers, adjusters, and more. There have been a great many discussions of that over the last ten years. While this is certainly "selection bias," the consensus has concluded this is the population most likely to be sufficiently familiar with process and performance. It is, after all, the attorneys who interact most frequently in mediations, motions, and hearings. 

And, it is imperative to stress the real strength of the joint survey. This is an opportunity to suggest how someone might do something better. It is easy to disagree with how someone performs a task or process. Criticism is easy. However, constructive suggestions are harder. If you do not like a process or procedure, say so. But, use the "comment" section and provide constructive suggestions of what you perceive would be better, and how you think that result would follow from your idea. 

Finally, remember that everyone can benefit from a compliment. If someone has impressed you with their intellect, patience, analysis, perseverance, commitment, energy, enthusiasm, optimism, courtesy, or otherwise, use the comment section and say so. If someone has disappointed, frustrated, or hurt you, say so. But, if your comment is critical there is no reason to make it insulting, rude or demeaning. The survey is anonymous, but that is no reason to make it mean or degrading. 

The results will be published (no "reporting bias") after it closes in late April. Time will be required to collate the collected data, but by summer, the 2018 results will join the rest, published on the "publication" section of the OJCC website, under the "survey" tab. It will not be "the" answer to anything, but it will provide insight as to how you perceive this Office. I thank you for taking your valuable time to participate. 

Tuesday, March 27, 2018

Don't be a Doofus

There is a humorous series of videos featuring a character named Dan Doofus. His behavior and choices illustrate points relative to fire safety for the National Fire Protection Association (NFPA). There is one on escape routes and fire alarms, kitchen safety, and electrical issues.  The short films sometimes conclude with the admonition "don't be a doofus."

It is not kind to call someone a doofus. The Urban Dictionary says that "doofus" refers to someone living in "blissful ignorance of the world, fashion, personal hygiene and social skills." It is not a kind or gracious reference. However, the reference came to mind this morning as I contemplate the next edition of Hot Seat this Thursday. Our subject is Sexual Harassment in Workers’ Comp: ​​​​​​​Ignorance, Stupidity or Evil?

It seems to me that some measure of inappropriate behavior that we see in the workplace is not the result of malice or intent. I was reminded of this recently when a gentleman reminded me of a former judge who found it inappropriate for women to wear pants to a hearing, and would voice his perspective insisting on dresses or skirts. Doofus - what she wears is her decision. Some months ago, I discussed a situation in which a manager described that a female employee had complained of being "ogled," and the work supervisor discounted the employee's concern with "you should what she wears to work." Doofus - what she wears is not an excuse. 

I recall being at a legal proceeding years ago. A gentleman attorney became intense, frustrated, and angry when examining a reluctant and evasive witness. His demeanor was revealing and his emotion obvious. Later, in the same proceeding, a female attorney also displayed frustration with a different witness. During a brief break in the proceedings, and with the female attorney not present, the male attorney mentioned her frustration. He, jokingly or not, implied that her frustration was related to her gender, hormones, etc. I recall my perception of hypocrisy, remembering his similar, and markedly more intense and immature, behavior in the same proceeding. Doofus - we all have reactions and frustrations.

Maybe all of these examples might be attributed to the ignorance or even stupidity categories? Maybe these can be attributed to bias (regarding wardrobe) or just lack of introspection and empathy (hypocrisy of faulting others for behavior we ourselves exhibit). Perhaps these examples we can address? It is possible that we all have said things which impacted people in ways we did not intend? Have we each allowed our bias or world view to interfere with our interactions at some point? Who should answer that? Can introspection alone lead us, or would discussion help?

There has been a great deal in the news about harassment, but "harassment" is a general term that is ill defined. That description is being used for everything from inappropriate comments (ignorant or stupid) to violent physical assault (criminal) and much behavior in between. Labeling has also been made an issue more specifically, with questions of whether particular behavior fits the "me too" movement and discussions. There is seemingly some disagreement about categorizing various behaviors. Perspectives are different, and we struggle to both categorize and define.

Just this week, a female gubernatorial candidate in New York "blasted Gov. Cuomo" for “mansplaining.” Webster's defines "mansplaining":
It's what occurs when a man talks condescendingly to someone (especially a woman) about something he has incomplete knowledge of
That could include an awful lot. I know that I have been spoken to condescendingly by a great many people over the years, men and women, young and old, experts and fakers. For some reason, a some people who lack knowledge nonetheless pontificate authoritatively (often regurgitating sound bites they have gleaned from a speaker or panel at the very seminar at which they have cornered me). I perceive that this is more prevalent once the cocktails are served, but I could be remembering that wrong. 

Somehow, by repeating bits of what we have both just heard in a lecture hall, and doing so as if they comprehended some import which I have clearly missed, they reinforce their world view. Their condescending pity for me is genuine, as I have clearly (as they see me) missed either the point of the preceding gospel, or I am too dense to comprehend it. But, as genuine as is their pity, so is their hubris, bias, and stubbornness. I have been mansplained to by men and women. 

I see value in hearing perspectives, conclusions, and data. That is not to say I cannot be stubborn (I can). But, I am a fan of those who can engage in discussions about issues and both raise valid points and remain respectful of those with whom they may disagree. I am impressed with people who understand that we each have bias and world views. I respect those who struggle against these challenges. These are people of intelligence with whom one can have a serious conversation about the challenges of the world around us. 

I strive to question my bias. I consistently remind myself that not everyone shares my world view. While I am comfortable conversing with those who do, I find that conversations in which I engage with those who have differing world views are very rewarding and valuable. If we listen carefully, we may start to understand the conclusions or postulates of the speaker. We may learn data or facts that are new to us. Or, at least, we may better understand how the speaker reached opinions on those data or facts; opinions or conclusions that might differ from ours. Even if we walk away unpersuaded, honestly and openly listening will aid our growth. 

Back to the gubernatorial candidate "mansplaining" story. The female candidate accused the current governor of "mansplaining and lecturing women on sexual harassment.” She faulted the governor for development of "sexual-harassment policies that are being discussed behind closed doors without a single woman present?” She faulted the efforts directed at sexual harassment for excluding women but including a man "accused of sexual misconduct himself."

Being no expert regarding the ongoing New York process that was being discussed, I did reach some conclusions. It seems an inclusive conversation would be more productive than one which did not include women. It seems that an open discussion would be preferable to one "behind closed doors." While the presence of an accused offender in the discussion may be troubling, someone being "accused" of wrongdoing should not exclude that person; not in the land of due process. 

From my perspective, there is plenty to talk about as regards sexual harassment in America. It is a subject that is perhaps best understood by those who have experienced it. However, that does not mean that those who have not been the target are necessarily incompetent or clueless. Perhaps we are all capable of challenging our own world views and bias. Perhaps if we put those aside and really listen, then we can comprehend the effect and perceptions of behavior and words? Perhaps, we may be able to understand, empathize, and sympathize, despite never having been the target?

The point of the Hot Seat discussion is not to solve all of the potential occurrences and affects of harassment (we have an hour after all).  The point is to have a conversation and to listen to the perceptions of others. For the Hot Seat, we have (Bob Wilson has) recruited a great panel to discuss perceptions and conclusions about harassment in the workplace and workers' compensation. We will hear about law, employment, and workers' compensation. If you tune in and listen, really listen, it is possible that you will learn something new; perhaps better appreciate dealing with ignorance and bias. 

It is not too late to register, though space is limited. Register now, "don't be a doofus."

Sunday, March 25, 2018

Boston Prediction Panel 2018

Just what are the predictions? It was beautiful weather last week in Boston as I visited for the WCRI Annual Conference. A whirlwind trip in which I spent 28 short hours on the ground in Boston. I had blogged on Doubts About Predictions before departing. In fairness, I had written that post a few days earlier, and posted Wednesday in anticipation of Boston. By the time I posted, the weather folks were predicting a weatherpocalypse in the northeast. Panic set in. As a result some Floridians could not make it to Boston

Boston news explained the failed prediction afterwards. It appears that the air was dry and that made the snowfall not materialize as predicted. Some may struggle to understand how humidity would be difficult to predict in our modern world. Others may just wonder how many lives were affected by the failure? One news outlet reported 5,700 flights cancelled, and others reported various significant flight delays. It was a significant weather event, which disrupted many plans. But, in the end, the weather was beautiful. The predictions failed, the predictors failed, and people were affected. This, despite the technology and science at the predictor's disposal.

As I sat on stage Friday with Denise Algire of Albertsons Companies, Charlie Kingdollar of General Reinsurance, Steve Tolman of the Massachusetts AFL-CIO, and our host John Ruser of WCRI, I reflected on predictions. We were there to make them and  to discuss trends. And, as the last presenters on the schedule, we were there to bring the conference in for a landing. 

Clearly, the weather example illustrates that even the most analytical or scientific may miss something. The fact is that a great many factors influence outcomes. Perhaps so many that we cannot be expected to appreciate them all? If that is true for science and weather, perhaps it is true for all predictions?

But there were takeaways from Friday. 

From Ms. Algire's perspective, retail is changing. There will be challenges there and elsewhere with aging workers and changing consumer demands. She predicts a continuing trend toward automation, particularly as it relates to heavy and unskilled work. Ms. Algire's is a "glass half full" perspective. She concedes that the technological evolution in which we are engaged will result in lost jobs. She contends, however, that this very technology will likewise create new jobs. Her conclusion is that work will remain throughout, but the nature of that work will change. 

From Mr. Kingdollar's perspective, the understanding of risk will be challenged. He described challenges that exist today in assessing risk, and charging an appropriate premium to underwrite that risk. He discussed nano-tubes and other advances, explaining that technology is expanding rapidly and broadly in our world. He cautioned that we may not fully understand all of the implications that such developments bring. Is it possible that there is a "next asbestos" on the horizon, a product promoted for its virtues and strengths, but which may have an unexpected and unpredictable risk? His perspective is that risk management and insurance will change. 

Mr. Tolman focuses on the people involved. He laments that technology will mean the loss of jobs. He intimates that business, and those who own it, should be compelled in some way to share their success with workers, or perhaps even forced to retain employees despite technology. As an example, he lamented the advent of ordering kiosks at fast food restaurants. One point that resonated was his own personal discomfort with that paradigm, and the suggestion that many of us may struggle to accept change. Our resulting loyalty to legacy retail (or legacy anything) may impact the predicted adoption of automation and somewhat preserve a modicum of jobs, to preserve customers  that are less adaptive. 

There was seemingly unanimous agreement that change is imminent and that it will be significant in breadth and scope. The disagreements among the panel were primarily about how markets and people will react to that change. There was mention of a growing socialism, a perceived need for government to "take care of" people. That is not new, Universal Income - A Reality Coming? addressed some of that theory. There is a persistent world view held by some that society has a responsibility to clothe and sustain those who either do not or cannot support themselves. Those holding this world view seems unable or unwilling to accept that some hold other views. 

As technology evolves, occupations and jobs will be lost. It is possible that others will emerge, and people will shift to new vocational challenges. It is possible that some in the older generation will find the idea of "retraining" more challenging and less attractive. It is possible, therefore, that some of the impact of this work evolution will be absorbed in workplace attrition, in which older workers evolve out of the workforce as younger, tech-savvy (even tech dependent) workers and their acceptance evolve in. 

I am 100% comfortable with several predictions. First, change will be persistent. The modern-day Luddite among us needs to take heed. Second, vision must be honed. We each must focus on where we are today, our skills, and where we are personally headed; the gig economy, technology, and artificial intelligence will change our work. If we fail to accept and evolve, we (occupationally) could become extinct. Finally, there will be impact on us all. Some will see that in our struggles to accept and adapt new skills and knowledge. Others will see that in their failure to do so. 

Government will be compelled to decide the level of socialism to which to descend. Though America long ago embraced socialism, there remain some strong capitalistic elements. Though socialism has gained a significant foothold, resistance remains. The tech evolution may add significantly to the volume of unemployed (ready, able and eager, but struggling for opportunity), underemployed (working, but not in a position that maximizes return on particular education or skills), or unemployable (those who cannot work). In effect, it is possible there will be more who struggle to support themselves in days to come. Still others who support themselves may yet struggle for personal fulfillment. 

Each of us will make decisions. How we will individually perceive and prepare for the changes will be among them. But, also important will be how we will collectively address the challenges that change may bring, to our economy, to our neighbors, and to our society. The individual and collective challenges will be significant. One hopes they will not be insurmountable. 

Thanks again to WCRI for their effort addressing this difficult subject, and to those with whom I was honored to share the stage. 

Thursday, March 22, 2018

Doubts About Predictions

I have been reflecting on progress, technology, evolving employment models, and the future of both employment and workers' compensation. On March 23, I will participate on a panel discussing these at the Workers' Compensation Research Institute (WCRI). Some recent posts in this vein include The Gig Economy, Can it Be Socialized, What of the Buggy Whip Makers, and What is an Employee?

I was reminded of predictions when I received an advertisement for an "innovative" new product; but, more on that later. The innovation advertisement made me think about some of the great progress quotes that missed the mark.

The New York Times is credited with
A rocket will never be able to leave the Earth's atmosphere.
Deca Records executive supposedly told the Beatles manager in 1962
The Beatles have no future in show business.
Orville Wright once said
No flying machine will ever fly from New York to Paris.
Thomas Watson, President of IBM, predicted
I think there is a world market for maybe five computers.
Ken Olsen, Founder of Digital Equipment Corporation in 1977 predicted
There is no reason anyone would want a computer in their home. 
The Editor of Prentiss Hall publishing in 1957 predicted
I can assure you that data processing is a fad that won’t last out the year.
Bill Gates famously predicted in 1989
We will never make a 32-bit operating system.

They were not just wrong, but spectacularly so. These were all made by people with great access to information, experience, and insider access to developments. They just got it wrong. 

Just a few business gaffs illustrate some very successful people failing to appreciate their opportunities or the future. Western Union turned down the chance to buy the telephone from Alexander Bell in 1876, seeing no future in it. Back in 1998 the creators of what became Google tried to sell their brainchild to Yahoo, and were similarly turned down. Kodak invented the digital camera in 1975. However, the company did not perceive opportunity, but threat to their existing business. So Kodak ignored and resisted it. Blockbuster video had the chance to buy Netflix in 2000 but found the $50 million price "ludicrous." 

Blockbuster disappeared and Netflix is now worth about $140 billion; the telegraph is a historical reference and the telephone ubiquitous. Google thrives, while Yahoo struggles to even exist. And, seemingly every digital device has a camera, while Kodak was devastated only to claw its way back after the near death of the camera and film paradigm. 

The leaders who misread those opportunities are not alone. A famous billionaire is said to have passed on an early opportunity to buy a controlling interest in Microsoft. A technology guru at Atari is said to have passed on the chance to obtain a significant share of Apple, declining to buy in for the relatively paltry sum of $50,000. 

The point is that some very successful people have failed over the years to accurately predict the future. And, we sit today and envision our own predictions of the future. We think we know what is coming, what form it will take, and what change it will effect on our lives. But history suggests that we may not, as a species, be all that great at predicting things. Sure, we may individually prevail and succeed, but there seems a greater likelihood of missing the mark than hitting it. 

Which returns me to the advertisement I recently received. This company is using a cellulose material that it produces by breaking down the fibers in trees. The material is flattened and smoothed by passing through a series of rollers. Information can be represented on this material similarly to what we see on computer or smart phone screens. Once the material is impressed with this information, it requires no electricity or Internet connection for ongoing use. The user interface is very simple, requiring only a finger to browse. This company will market the end result under the name "book." And, they are claiming it is an "innovative tool." 

Say what you want, but I doubt the idea will take off. Who would go to all that trouble when the world is at our fingertips in the world wide web? 

But, possibly it will be a huge innovation and people will buy these "books." Just because we may doubt people will eschew their Kindle for such an "innovation" does not mean it is destined to fail. After all, to keep us in perspective, Orville Wright also said 
If we all worked on the assumption that what is accepted as true is really true, there would be little hope of advance 
Maybe this "book" thing will be something after all? At WCRI tomorrow, we (@denisezoe @ckingdollar @stevenATolman @John_Ruser) will be discussing technology, artificial intelligence, and how work and workers' compensation will be affected. That the world is changing is not debatable; however, how the world is changing is challenging us all. Will we be more prescient than the cited examples? Or, perhaps we will make equally spectacular gaffs? Me, I'm buying one of these "books" just in case.

Wednesday, March 21, 2018

The Gig Economy Post - Redux

This blog recently focused on the "gig economy" in The Gig Economy - Can it Be Socialized. That post focuses in part on a New York innovation, a Fund for drivers engaged in self-employment, independent contracting, and even the "gig economy." After publishing, I received an extensive note from the Fund, explaining misperceptions gleaned from the NPR coverage of the Fund cited in the original post. That interaction led to the following. 

Whether the gig economy is "coming" or "here" may be debated. But regardless, there are those who questions whether and how the costs associated with this disruption can be socialized. Injuries do not stop because one is a sole proprietor instead of an "employee."  The occurrence and cost of injury and illness exist, regardless of labels. Ultimately, the payers of these costs are likely to be taxpayers and consumers. Whether through tax dollars or otherwise included in the cost of the products and services they consume, they will likely be the Ultimate Payer

Some suggest that the solution to this socialization issue is rather simple. A great many states allow very small employers to avoid participation in workers' compensation. In Florida, participation is only required if there are "four or more employees are employed by the same employer." Section 440.02(17)(a), Fla. Stat. That section was perceived as affording too much leeway in some industries, and was amended in 1990 and again in 1991 (an example of expansion of workers' compensation), and now requires coverage for all workers in the construction industry.  

National Public Radio (NPR) recently published a thoughtful article: The Future Of Benefits: A New York Program Might Provide A Model. This analysis notes that "government policies are slow to adapt" to change, but argues that New York launched a program in 2000 that could provide a road map for socializing the cost of workplace injuries that fall without the current parameters of traditional workers' compensation, through independent contractor relationships and entrepreneurial work. 

The New York Black Car Fund, has a nearly 20 year history of providing medical, disability, and death benefits to drivers who are injured while working. The NPR contends that it may well be "a model for how benefits might function in the future." It currently "covers about 125,000 drivers," including "contractors for Uber, Lyft or more traditional taxi or limousine services." 

The NPR article suggests that the fund provides a measure of benefits, but not the benefits of workers' compensation, which was discussed in this post originally. I was contacted after publishing this post by Jason A. Fromberg, who is affiliated with the Fund. He corrects the NPR misperception, assuring me that the Fund provides full statutory New York Workers' Compensation coverage to those independent contractor drivers that it serves. 

There are some distinctions, but they are additional benefits, not inadequacies. In addition to workers' compensation, the Fund provides benefits that are not required by workers' compensation, including a lump-sum death benefit (life insurance) and various educational opportunities. Thus, the Fund does not provide "workers' compensation lite" as the original post noted based upon the NPR coverage. 

The Black Car is "funded by a 2.5 percent consumer surcharge on each ride." Thus, a "tax" is imposed on the consumer of services. That is the purported innovation of the Fund, that there is a legislatively mandated tax on services that finances coverage. Certainly, any worker in the gig economy could choose to allocate some portion of earnings to purchasing workers' compensation, health insurance, or life insurance (or a different vehicle, or any other accoutrement). The point appears to be that there is at least a perception that some or many drivers otherwise do not purchase voluntarily and so this mandate effects coverage through taxation. 

NPR reports that Congress is working to encourage states to implement "new ways of delivering benefits for freelance workers." Their proposal is to provide "seed money" for cities, states and nonprofits to devise methodology for a socialized safety net for this "gig economy." The motivation is clear. For each injury that is not covered by some form of insurance, there are likely to be costs that require payment. Some will be paid by workers, but others by taxpayers. Thus, there is a perceived need for some new socialistic process for workers in this new "gig economy" paradigm. 

I initially questioned the NPR advocacy of what they intimated was an alternative benefit structure. Having learned that the Fund merely provides the same workers' compensation benefits any employer or self-employed may purchase (and more), it seems a more logical alternative solution. However, that legislative mandate of contractor coverage now seems even less distinguishable from a simple statutory amendment requiring coverage for all workers, as suggested in the original post. 

The New York Fund exists to provide coverage to a population of workers. The cost of that workers' compensation is passed to the consumer in the form of a tax. Other businesses similarly, though not as patently perhaps, pass the cost of workers' compensation to the consumer aggregated into the cost of goods or services (as is the cost of labor, supplies, raw materials, etc.). The effect may be the same, but in one instance the consumer sees the cost of workers' compensation (the fee or tax), but in the other the consumer likely sees only the aggregate price of goods or services. 

Some will argue, perhaps, that the same inclusion of "gig workers" or independent contractors could be accomplished without such a surcharge or tax. As suggested in the original post, perhaps the solution is merely to require all workers' to be covered for workers' compensation. They would build that cost into the price of their efforts, as do all other businesses with all other costs. This socializes the cost of injuries, and places the responsibility upon whatever industry or business in which the worker is engaged. Whether the cost of that is included in the price of goods or services, or reflected in some surcharge, seems of less importance. And, with such a simple solution at hand, the federal involvement and the "seed money," seems unnecessary at best. 

If these "gig" workers or independent contractors have no coverage, then their treatment and disability costs will fall upon them or upon the taxpayer. But, if they were all required to procure and pay for workers' compensation, then the costs associated with their individual work risks would become part of the cost of the services that they deliver. Either socializes cost. The simpler solution still seems to be state laws that simply require all workers to be insured for work injuries.

Of course, like the failed Obamacare mandate experiment, this would require states to enforce that "mandatory" coverage. Despite Obamacare mandating health coverage for all Americans, many remained uninsured despite it. Kaiser estimates that four years into implementation, 28 million Americans remained without health insurance despite that mandate. Some form of enforcement would likely be necessary to assure participation in workers' compensation. But that is something states already do with regard to the employers already mandated to participate.  

As the economy continues to evolve, the cost of injury and illness will remain. America adopted socialism and workers' compensation a century ago to pay these costs. America must now come to grips with how to socialize the costs of those who are not "employees," because the indicators are the "gig" is here to stay. Should they pay for their own injuries, be forced to participate in workers' comp, or be the responsibility of the taxpayer?

Tuesday, March 20, 2018

What of the Buggy Whip Makers?

On March 23, I will be on a panel at the WCRI 34th Annual Workers' Compensation Conference. The focus is on the future, and what might disrupt workers' compensation as we know it. Our panel, The World of Work is Changing―Fast. Are you Prepared?, will be the ultimate event, just prior to adjournment on March 23. I expect the "gig economy" to be part of that discussion. It is more fully described in WCRI 34th Annual Conference

The "gig economy" is a hip and trendy term that I hear bandied about fairly frequently these days. It is of interest, with hot tech companies like Uber, Grubhub, Handy, and more changing the way we live. Just as they affect us as consumers, they are changing the world of employment also. The workers' compensation community is curious about and discussing the potential impacts of the "gig economy." Will it be a "game changer" or a flash in the pan?

I have run into the "gig economy" lately. Florida just passed a bill to provide work characterization clarity for those who work in one particular business model, those apps similar to Handy. See What is an Employee. That post scratches the surface on a broader subject, independent contractors and the self-employed. Recently, I also wrote about the workers compensation benefits that are afforded some independent contractors in New York, see The Gig Economy - Can it be Socialized?

There is so much involved with the classification and misclassification of workers. Many "employees" are provided a litany of benefits and comforts, while independent contractors are not. The trade-off is in the independence and flexibility contractors enjoy. Many also find favorable advantage in immediate compensation, a trade off for those other benefits. But the fact remains that injury results in cost, whether financial or personal. And, that cost must be borne by someone. Workers' compensation socializes that cost, as do programs like Social Security Disability, and a variety of other social "safety net" programs for food, shelter, medical care and more.

It occurs to me, in contemplating the "gig economy," that this disruptive technology, apps, etc. do not change the nature of employment. The "gig economy" has existed for a long time. The "disruption" is not creating this economic model, but merely encouraging or facilitating it.

Concurrently, we must reconsider the panoply of examples that are mentioned when technology disruption is discussed. Robotics, for example, are expected to change our world. Automatons are being deployed in our homes (vacuuming), factories, and even agriculture. CNBC recently reported, for example, that "robotic machines to pick everything from strawberries to apples are being tested" in both "Florida and California." This will disrupt employment. Technology is going to replace some measure of human workers. Not all, but certainly some. There are pundits that assert it will be most. 

These may replace people, eliminate jobs. But, we may validly question whether this is any different than the elimination of jobs that occurred with the advent of steam power, the internal combustion engine, or the assembly line? While I hear expressions of fear and anxiety about the coming robotics and artificial intelligence, I struggle to accept that this technology revolution is really more pervasive in depth than those revolutions already witnessed. There was a time when 90% of America's labor force was engaged in agriculture. Today, that is about 1% according to the government. The depth of that change was certainly significant. 

What makes it different this time? Some argue it is different because "it is happening to me" this time. Perhaps that is fair. Perhaps it is easier to accept change when we view it retrospectively, historically, through the prism or our own present well-being? Others contend that the current revolution is more pervasive, affecting a broader spectrum of job categories and people. They argue that farmers were the only ones affected by the industrial change, but that perhaps ignores that almost everyone was a farmer then. And, there are those who argue that the real distinction is speed, the speed of change seems incredible. Possibly, there is room in the analysis for at least some of each of these in our analysis?

There are apparent inter-dependencies also. Many drivers are engaged in the "gig economy" that is so talked about. There is discussion of how workers' compensation can deal with the risks associated with expanding populations of the independent contractors, and the potential for significant impact on other social safety nets. But, concurrently there is discussion of the age of robotics, the self-driving car, eliminating the need for drivers altogether. This week Forbes reported that the First Death Of A Pedestrian Struck By An Autonomous Vehicle May Set Tone For Lawyers And Liability. Possibly such setbacks may influence the timing of development and deployment of technology, but it is unlikely to prevent it. Notice the tone of the headline is not about avoiding deployment, but about adapting how the law and regulation may accommodate it.

Employers are struggling with the potentials for change impacting their business. It is possible that some businesses, tools, services, will not be sought by consumers in days to come. Entire experiences may cease to exist in the commercial marketplace. It is likely that industry and work will shift. But, remember that before Carl Benz' foray into internal combustion, there was no need for auto mechanics, body shops, and so much more (there was no horse and buggy liability insurance industry). As automobiles proliferated, new industries and jobs evolved, but there was less and less demand for those who manufactured buggy whips. As a result, the term "buggy whip" has become slang for sliding into obsolescence or obscurity. 

The New York Times focused on that simile back in 2010 (seems like yesterday) in Failing Like a Buggy Whip Maker? It describes a professor explaining the plight of "buggy whip makers" in 1960, and his views on adopting a perspective. He explained that those so engaged needed to think of themselves not as "buggy whip makers" but as "in the personal transportation business." A broader perspective better facilitating acceptance of change. But the Times author disagrees, suggesting instead that the "buggy whip makers" were doomed because the product itself was not transferable, there was "no automotive analog" into which they could shift. The analysis of this article confirms that the subject is both complex and amenable to different perspectives. 

Our analysis must also include the realities of business, and life for that matter. For a great many of us, there is sufficient challenge in arising, getting to work, making it through the day, and then facing the array of home-front challenges (the yard work, laundry, feeding and bathing kids, paying the bills, etc.). As a result of the panoply of daily challenges, perhaps we do not do a good job of thinking about and planning our individual futures, what's next, what's best?

In the same way, business may be too focused on designing better buggy whips, managing the workers that are making buggy whips, and selling buggy whips to really think about what the business would do in a world that demanded no, or at least less, buggy whips. In the cacophony of the day-to-day, is it possible to marshal the peace of mind to logically and intelligently think about tomorrow and beyond? Some commentators have suggested that new companies focused on technology change, like Waymo and Aptiv, might enjoy a comparative advantage compared to "legacy companies" like General Motors, Ford, and Toyota who seek to develop the "next thing" while dealing with the day-to-day of building and selling "today's thing" as well. 

Admittedly, this is likely a challenge for us all. Success will come to some through good luck or happenstance. But for others, success will be identified, pursued, and captured through thought, planning, and execution. Those who will best survive the coming technological evolution will be looking to the horizon and considering options. As the New York Times author noted, it may be about transferable skills, e.g. what do we know and how would those skills integrate into some task other than today's. Knowing what you can do is only half the battle. Knowing how that brings value to someone else is the key.

We are seeing change. The legislative efforts regarding the "gig economy" illustrates that. The incredibly rapid deployment of "assistive technology" and robotics illustrates that. The creation of new industries will follow, and the demise of others is probable. The change will come whether we are ready or not. What we can change is limited to how we prepare for and react to the coming changes. Challenging to say the least, but we can individually and collectively either evolve or "go the way of the buggy whip." That choice between evolution and obsolescence is ours. 

I look forward to sharing the stage with an amazing panel. Ms. Denise Algire (@denisezoe), Mr. Charlie Kingdollar (@ckingdollar) and Mr. Steve Tolman (@stevenATolman) will provide us all an outstanding opportunity to better understand perspectives on this revolution (or is it just an evolution?). 

Sunday, March 18, 2018

Motion to Exclude Middle Finger

This was the title of an actual motion filed in Tennessee (an admittedly eye-catcher title). Motions are the appropriate way to seek relief in most adjudication systems. A few systems eschew the formality of motions and instead engage in a seemingly endless parade of "status" or "case management" conferences, a model referred to as "maternalistic" (nurturing, sensitive, etc.). Those who advocate it contend that conversations and brainstorming lead to a smoother procession toward the ultimate trial. Though ours is not maternal, occasionally a Florida lawyer will seek a status conference rather than file a motion. But in Florida the motion is the right course.

The title of this post comes from the Tennessee Court of Workers' Compensation Claims in Alvarez v. Surface Igniter LLC, Case number 31161-2015, Docket No. 2015-03-0337. And, the purpose of the motion has nothing to do with the "proverbial" middle finger, but merely addresses this particular middle finger. It has nothing to do with bringing the finger into trial (lawyers will have moved to "exclude a witness" from trial). But, from the motion, perhaps we can learn something useful. It is really about injury to (allegedly) this person's middle finger. 

The Employer in this case alleges that it found itself in an unexpected dispute. It claims that "in the early stages of this claim" there were allegations only of "partial amputations to the ring finger and pinky finger." The "middle finger," it alleges, was never referenced. Never, that is, until an independent medical examination (IME) report was prepared, later in the litigation. 

At that point, "more than a year following the alleged injury," the IME physician "first raised the middle finger." Well, more like "first raised the middle finger" issue" At that point, the employer suspected that the injured worker "intended to claim benefits related to his middle finger." Alarmed at that prospect, the employer filed this motion, to exclude consideration of that particular appendage. Perhaps the motion could have been titled "Motion to Preclude Consideration of Middle Finger?" But, in fairness, still potentially "click bait."

The employer explained in the motion that discovery was conducted with the focus being "the amputations," with "no reference to the middle finger." They contend that the middle finger initially was "never raised," not in the "initial" filing. Thus it argued the injured worker "waived his middle finger in the early stages of litigation." Essentially, if the middle finger was not raised then it was waived. 

What can we learn from this example that is useful. First, it is not uncommon for symptoms to evolve during the course of a claim. This can arise in a number of ways. A worker may injure multiple body structures in an accident. Sometimes the concern about, discomfort from, or physician focus upon one structure may lead the injured person to ignore or downplay another structure. When one's arm is fractured in a vehicle accident, it may be natural to focus thereon and not discuss a strained shoulder, sore neck, or abrasions from the same event. 

Or, it is possible that the effect of injury to one structure may lead to concerns with another. For example, someone with a significant limp due to a leg injury may produce strain or discomfort elsewhere. The worker's back might hurt or her/his other leg might develop symptoms, as a result of the limp itself. Similarly, a patient may take a medication to ameliorate the discomfort of that leg injury, and find that the medicine itself causes symptoms, such as stomach discomfort or nausea. 

Though we acknowledge that symptoms may thus evolve over time, we must also remember that there is a requirement in our system for due process. In this context, that is essentially "notice" that there will be proceedings and an opportunity to be heard at that hearing. As voiced in the motion, the employer complains that (1) it did not have appropriate notice because the middle finger was not mentioned at the outset (or at least it was too close to trial when it was), and (2) that it is therefore surprised with the middle finger late in the process, after the discovery (questions, examinations, etc.) have been done. 

And therein lies the challenge. The person who is injured needs to be afforded an opportunity to present her/his case for damages (in a civil setting) or benefits (in workers' compensation). But, that right has to be balanced against the employer's (or other defendant's)  right to have notice of the actual issues, a meaningful chance to defend itself. 

What are the solutions? Oftentimes the prejudice caused by such late notice may be a simple continuance. The parties, with more time, may be able to more fully explore the new information. However, that continuance is to allow time to conduct discovery on the new allegation. Depositions may have to be taken (or taken again). Thus, this solution affords time, but the cost associated with preparing again might be significant. 

And, there may be times when a continuance merely prejudices one party (the worker that wants a decision about that injury) and does not afford relief to the other party (the employer, having no notice of a seemingly unrelated injury from a year before may be unable to effectively investigate or perform meaningful discovery). It is possible that determining causation or relationship to an accident might require a medical examination closer to the accident itself, and an examination a year later might be of little value. 

At every trial, there is more than one story that will be told. Perspectives on the facts of the case may be different, as in what happened, how, when, where, etc. Interpretations of the law may be different regarding what those facts mean, whether an accident is compensable, whether an illness is related, whether specific benefits are due. When the due process issue arises with a late-discovered condition, the parties may likewise differ on the extent of prejudice and whether or how it can be ameliorated. 

But, ultimately, the motion in this instance was the appropriate tool to start that discussion. One party perceived a problem and so it sought the evaluation and interpretation of the trial judge. That is our process. One in which we recognize that there will be disagreement, differing opinions, and various perspectives. Knowing that this will be our process, parties should remain vigilant for evolving issues, and should be willing to enlist the adjudicator's aid in resolving those disagreements.

To be fair, raising the issue with the judge may not resolve all concerns. In the discussion of the issue, contemplation may lead to raising still other issues. Litigation is a difficult road. The landscape can change, the weather can change, and our perceptions can change. The critical point is not specific to this case. Lawyers and litigants must remain conscious that change is part of litigation, it cannot be prevented. 

They must be vigilant for those changes, and react promptly when they occur. This means early and diligent review of medical records, careful deposition of witnesses, and attention to detail. These may not be an inexpensive proposition, but they are the path to being prepared to address the facts and to react to changes. 

Thursday, March 15, 2018

What is an Employee?

Recent posts have focused on outcomes from the 2018 Florida legislative session. The passage of CS/CS/HB 227 is discussed in I'm Just a Bill - PTSD in Florida. The reform regarding opioids and the state's prescription drug monitoring program (PDMP) is discussed in Florida's 2018 Session - Opioids. Admittedly, the 2018 session did not include significant workers' compensation reform. But, these two bills have notable workers' compensation implications. 

And, they are not alone. House Bill 7087 (HB7087) could have workers' compensation implications as well. It is worthy of discussion. This is a taxation bill filed in February 2018. On March 5, 2018, the House passed the bill and it was sent to the Senate, "in messages." The Senate read the bill three times, the last on March 11, 2018. Afterward, an amendment was proposed, and adopted. The Senate sent the amended bill back to the House, which passed it. The bill was then "enrolled" (meaning it will be presented to the Governor). Some news coverage of the process was critical that the new statute sections created by the last-minute amendment "didn't go through the full committee process."

The amendment creates "Chapter 451, Florida Statutes, consisting of sections 451.01 and 451.02. It defines terms like “household services” and “marketplace contractor” and “marketplace platform.” The implications for workers' compensation may not be immediately clear, but these "platforms" are computer applications (apps). As Uber and Grubhub are apps that connect drivers to customers, so do other apps ("marketplace platforms") connect customers to workers that perform tasks around the home. 

According to the amendment, these tasks include:
(a) Furniture assembly; (b) Interior painting; (c) Television mounting; (d) Local moving help, such as packing, lifting, loading, and rearranging household items, but excluding transporting items; (e) Hanging pictures, mirrors, curtains, blinds, and shelves; (f) Home cleaning; (g) Installation of in-home technology that does not require a hardwired electrical connection; or (h) Installing or replacing door hardware. 
The amendment clarifies that such services "do not include services that require licensure under chapter 489 (construction and other contracting).. 

So, a customer can use an app (“marketplace platform”) to summon someone (“marketplace contractor”) to perform tasks (“household services”). But the reason this is of interest to the workers' compensation community is that such help (“marketplace contractor”) shall not be considered an employee of the app (“marketplace platform”).

The new law provides that 
a marketplace contractor must be treated as an independent contractor, and not as an employee, of the marketplace platform for all purposes under state and local laws, regulations, and ordinances, including, but not limited to, chapters 440 and 443 . . .
as long as certain "conditions" are satisfied. The conditions are focused on the extent to which the “marketplace platform” exerts control over the worker (“marketplace contractor”). These include the platform not "unilaterally" setting hours the contractor "must be available" for work, not prohibiting the contractor from using other such platforms to seek jobs, and not restricting the "contractor from engaging in any other occupation or business." Furthermore, a written agreement between platform and contractor must specify the "contractor is an independent contractor." And, the contractor must be responsible for "all or substantially all" of the expenses associated with performing the services, and be responsible for his or her own income taxes.

The new statute compels that satisfaction of these criteria means that the contractor is an independent contractor and not an employee. However, the converse is not necessarily true under the new law. That is, failure to satisfy these statutory conditions does not mean that the contractor is instead necessarily an "employee." In other words, the "contractor" or "platform" may still rely on other criteria or statutory definitions to establish that the contractor is not an employee, e.g. Section 440.02(15)(d), F.S. 

Further, the customers who need “household services” and seek them through the "marketplace platform and marketplace contractors" are required to "comply with chapter 440 in the same manner as if they had not connected through the marketplace platform." The use of the platform provides no special treatment for the customer/homeowner. 

The new law's provisions apply to such app relationships prospectively (after the law becomes effective July 1, 2018). But, it specifically also "applies to services performed by a marketplace contractor before July 1, 2018, if the conditions set forth in subsection (1) were satisfied when the services were performed" (the requirements discussed above).

Finally, there are specific exclusions regarding services performed for the state, counties, cities, etc. and for services performed for "religious, charitable, educational, or other organization(s)." These services are excluded to the extent they are otherwise addressed in the Federal Unemployment Tax Act.

There has been significant discussion of the "gig economy," in which work is performed as needed or on a "project" basis. See The Gig Economy, Can it be Socialized. That economy has existed for years with independent contractors being recognized in various statutory constructs across America. Disruptive technology has not created the "gig economy," but merely facilitated it. And, with the aid of technology, this market segment has gained notoriety, attention, and growth. Some have predicted that government would struggle to keep pace with such changes. See Salim Ismail and a Life Changing Seminar in Orlando

The issue with independent contractors is reasonably simple to understand. An independent contractor is someone operating her or his own business, doing work for various clients, and being responsible for her or his own tools, taxes, and work. The application of the concept has become muddled over the years as some employers and employees have sought to misuse the classification of independent contractor for the purpose of avoiding tax liability, the burdens of workers' compensation, and other costs. See Misclassification - What it is. In response, some states have sought to tighten the definitions of independent contractor. Florida's statutory constraints are quite specific. See Section 440.02(15)(d), F.S.

The debate regarding classification in this context is not isolated to Florida nor to home repair. There has been a significant debate regarding worker status, as well as numerous court decisions involving various "apps." A Kansas court concluded that one company's workers were employees, while a District of Columbia court later concluded the same company's workers were not employees. In fairness, the two courts were considering different statutes. 

A Florida court has concluded that Uber drivers are independent contractors. Reportedly, "New York, Texas, and Georgia" have reached similar conclusions. However, the same report notes California has labeled Uber workers "employees" instead. A Federal judge in California very recently reached a different conclusion regarding workers at a food delivery service, Grubhub. Some have asked me how California could treat Uber (rides for people) and Grubhub (rides for food) differently. No, the answer is not the character of the cargo! The difference is in how the company that owns the app interacts with the workers.

This should lead the reader to some pointed questions. Some might perceive inconsistency and wonder who is "right" or "wrong." That is not a helpful way to approach this issue. It is entirely possible that all of these decision are "right." Of course, it is equally possible that each is "wrong." This is possible because the determination of classification is dependent upon both the applicable law and the individual facts of the case. 

A determination that some description of worker is or is not an "employee" must be made applying a particular law. Thus, it is possible that a person might be an "employee" as that is defined for purposes of collective bargaining, but is an "independent contractor" for the purposes of the Internal Revenue Code. It is as possible that either of these federal laws might lead to a different result on the classification question than some state law might reach. It is notable that there are many definitions included in laws, and they may not always be consistent. 

This is illustrated by the newly passed Florida "independent contractor" parameters of Section 451.02 F.S. and the broader provisions already in place in Section 440.02(15)(d), F.S.  A worker who might not be deemed an "independent contractor" under chapter 440 might nonetheless be one under the more abbreviated chapter 451, but only because her or his work is associated with a qualifying “marketplace platform.” This is similar to how two workers might be treated differently because one is a "first responder." See I'm Just a Bill - PTSD in Florida.

Furthermore, these questions are not necessarily fully answered by the law. The law prescribes considerations and requirements. However, the facts may be very different from one situation to the next. Just because one "app" is seen as creating an "employee" relationship (such as Uber in California), that does not mean another "app" would be seen identically as to another "app" in the same state (Grubhub in California). The distinction, according to the judge in the Grubhub decision, is the extent to which the "app," or more aptly the company that owns it, exerts control over the worker. The less control, the more likely a conclusion the worker is an independent contractor, and more control may be persuasive of being an "employee."

The implications of all of this are broad. Independent contractors do not qualify for workers' compensation or unemployment compensation. The independent contractor does not have income tax or social security "withheld," but is responsible for making those payments her or himself. Contractors do not enjoy benefits like insurance, pensions, or paid holidays. Contractors are not assured a "minimum wage" under the Fair Labor Standards Act (FLSA). As a result, it may be cheaper to obtain services from an independent contractor than it is to "employ" someone to do the same tasks. When companies can find ways to lower expenses, they may find it is easier to compete for work, or easier to profit.

But, it is important to remember that "apps" and disruptive technology did not create either independent contractors or the "gig economy." Technology seems to be facilitating and nurturing both. These technology tools are shifting perceptions and performance of work. As a result, there are likely to be further discussions of adjusting laws to accommodate the realities that result. That may be to extend the applicability of workers' compensation, provide a substitute for workers' compensation (see The Gig Economy, Can it be Socialized), or accept the societal burden of injury and illness through social programs instead of workers' compensation (see Someone has to Pay). 

Regardless, the new statute in Florida illustrates the efforts that are likely to be repeated as jurisdictions struggle with the economic realities and changes of the twenty-first century. But is it really change? Some will see such language as Section 451.02 as change, while others will see efforts like this as instead reaffirming the status-quo. A Florida Senator, asked about the new statute sections passing as a bill amendment, without committee consideration, responded to the Tampa Times that the amendment doesn't "change anything." Instead, the Senator explained, it merely reaffirms how workers affiliated with these “marketplace platforms” are characterized.