Is there a Benefit?

The January 2019 issue of the National Association of Workers' Compensation Judiciary's Lex and Verum (Archive no longer maintained, issue in possession of author) includes an intriguing article regarding attorney fees: How Many Slices are in a Twelve-Inch Pie? The author is one of the Virginia Worker's Compensation Commission members, and former chair, Wesley Marshall. The theme of the article is the increasingly ubiquitous Medicare set aside and the question of obtention of benefits. 

The article provides an overview of the advent of Medicare's involvement in the world of workers' compensation, the delineation of Medicare as a "secondary payer" (as in anyone else involved should be the “primary payer”),  and the "duty to protect Medicare's interests when resolving" cases. Though this is a workers’ compensation (WC) focus, the same “Medicare interests” appear in a variety of other examples involving some entity with “primary” responsibility for medical care.

Commissioner Marshall discusses two conflicting California decisions. One concluded the part of the WC settlement proceeds apportioned to the Medicare Set Aside (MSA) should not be included in the attorney fee calculation. The California Board reasoned that "the claimant did not necessarily place herself in a more advantageous position by settling her medical award." In other words, as America put it in Tin Man in 1974: "Oz never did give nothing to the Tin Man That he didn't, didn't already have." That is, perhaps it is valid to question: "What did the injured worker gain?"

He contrasts that conclusion to a later decision from the same California Appeals Board. It concluded the MSA funds were a benefit and should be included in the "obtained benefits" to calculate the attorney fee. The Board there cited that treatment obtained with the funds in the MSA would be more readily usable at the patient/worker's discretion. The constraints of the state workers' compensation system were eliminated by the settlement of the case, and funding of the MSA. Also, the Board noted that should the worker pass away, medical benefits under the state workers' compensation law would cease. However, in such an event, the remainder in an MSA account "would be payable to the injured workers' estate," at least in some circumstances. Other state decisions are discussed by the Commissioner, but these two serve as examples. 

Commissioner Marshall concludes that "there is no federal guidance on whether an attorney's fee for settlement" may or should include the MSA funds in the calculation. He notes that it might be equitable to include these amounts in order to avoid "giving Medicare a 'free ride' either directly or indirectly." He also contends that declining to include these amounts in the calculation could prove a disincentive to the representation of workers whose cases would likely involve an MSA. In this regard, he sees an unintended consequence of such exclusion. 

He concedes that some might conclude that the inclusion of that figure in the calculation, a figure that can only be used to pay specific medical costs, might result in "most or even all" of the non-MSA settlement funds (the indemnity portion of the settlement) being depleted through attorney’s fees. Commissioner Marshall suggests that some formula might be contrived as a compromise regarding fees for the MSA portion of a settlement, but cautions that such a formula would have to "balance carefully the need for attorneys in the system and for them to be compensated fairly against the ultimate conclusion that a settlement is in an injured worker’s best interest." 

This discussion was interesting for several reasons. First, from the "Tin Man" argument perspective, perhaps every settlement in workers' compensation is similar only to what the injured worker "has coming." That is, is an allocated amount for future medical care really that different from an allocated amount for any other benefit category? Often, indemnity benefits in workers' compensation are formulaic. Absent a settlement, those benefits are generally paid periodically. They are calculated based upon various statutory criteria such as: loss of function or ability, impairment rating, or lost wages. Many formulae for such income benefits have been engaged across the country over the last hundred years. But what they all have in common is that they are largely mathematical.

Mathematical that is in the sense that those who pay benefits (employers and their insurance carriers) can reasonably calculate the probable volume of benefits that will be due to any particular injured worker. Whether with assumptions regarding impairment or economic loss or with actual figures and facts, the payers may reach educated conclusions about the probabilities of the exposure cost. Generally, armed with the knowledge of that probable expense, the employer or carrier offers settlement by payment of something less to the injured worker. From the payer's perspective, perhaps that savings is the motivation for settlement in the first instance?

Certainly, there is also a perceived benefit in claims closure generally; it means one less file to monitor, to reserve, to manage. Certainly, the closure of a claim reduces the payer’s transaction costs. For each open file, there is some expenditure for an adjuster or other claims professional to both periodically review and process various ongoing payments therein. Thus, a reduction in the number of open claims, through settlement, represents a reduction in payer overhead. But, generally speaking, there is nonetheless likely a desire of the payer to pay less than it otherwise predicts or anticipates based upon the statute and the mathematically calculated payments over time.

Thus, one might validly argue that in a variety of settlements, the negotiation is not to obtain what a statutory scheme provides, or greater than what it provides, but instead to obtain less than the injured worker is otherwise likely entitled. Notably, there is a corresponding benefit to the worker in settlement. Similarly to the second California logic above, settlement proceeds remain the injured workers' property following death, when death would otherwise likely truncate the payer's obligation to pay periodic workers' compensation benefits. 

Second, the "closure" so valued by the payer may also represent a value to the injured worker (or even Medicare as discussed below). The worker obtains closure, certainty, and peace of mind as well as the payer. Anyone who has been involved in workers’ compensation settlements understands that some claimants do not consider only their economic self-interest in deciding whether or not to settle. Litigants care about fairness, not just money. Thus, the "Tin Man" analysis is perhaps less persuasive. 

That non-inclusion argument, that the injured worker is getting in the MSA only that to which she/he is undoubtedly and otherwise entitled is an arguably accurate description of what is occurring. But, in contrast, the other settlement value (the indemnity and other incidentals) is often, and perhaps always, less than that to which the worker is entitled. Historically, workers' compensation systems have never been concerned with attorneys earning a fee based upon their negotiation of the obtention of such a settlement, for less than the worker is otherwise entitled. 

Why would that same system express concern that a fee was similarly calculated on what experts and soothsayers conclude is the exact value of what would otherwise be provided? If anything, that alone might convince some that the MSA portion is more of a benefit than the non-MSA portion?

The second flaw in the logic of treating the MSA settlement portion differently is simpler. Though the California Board touched on its perceptions of why a settlement is beneficial to an injured worker, with all due respect, who should decide if a settlement is what an injured worker really wants? This is where Commissioner Marshall's analysis of the Virginia Board's role is critical. He notes that in Virginia the Commission is charged with making a determination that "a settlement is in the claimant’s best interest." In a multitude of jurisdictions that is the case. And, if the particular injured worker is in one of those jurisdictions, then that determination will necessarily be a holistic one by some regulator or regulatory process.

What has driven legislatures to include that “best interest” statutory analysis? There is some perception that review is fundamental to the preservation of the “grand bargain” of workers’ compensation and the Constitutional guarantees of due process in such an administrative system. Some perceive the settlement of workers’ compensation as deleterious to what they characterize as a public commitment to “redistributive justice,” and thus a process in which protection or review is necessary and appropriate. Still, others believe that injured workers and payers have decidedly unequal bargaining power, and they perceive the “best interest” analysis as a check and balance on the inequity perceived.

I note these perceptions and add that in Florida most settlements no longer require such a judicial or regulatory “best interest” finding or conclusion. Before 2001, all settlements required such a finding in Florida. But, then the legislature removed that requirement for judicial oversight if an injured worker is represented by counsel. In a Florida case in which the worker is represented, the attorney is thus making the “best interest” determination. Whether this analysis is judicial, regulatory, or by an attorney, it has to include a fair and reasoned consideration of all the circumstances of a case. 

For example, perhaps the employer is uninsured and teetering on bankruptcy, then maybe a smaller settlement than otherwise anticipated is nonetheless in the workers' best interest. Or, the worker suffers from some unrelated and yet serious or life-threatening medical condition, perhaps a smaller settlement than otherwise anticipated. Or, if the worker continues to require significant care and treatment beyond what such an injury might reasonably be expected to need, perhaps the settlement is larger than otherwise anticipated. Or, the complexity, medical or legal, of some aspect of a worker's condition or allegations results in additional administrative time and attention, perhaps the settlement is, therefore, larger than otherwise anticipated. Thus, the injury, medical or vocational, is not necessarily settled in isolation. The value is not necessarily mathematical.  The case is settled, and in arriving at what consideration will be sufficient, the totality of circumstances must be considered. 

That remains true whether a governmental agency or an attorney is analyzing the "best interest." Regardless, the analysis may be challenging. The analysis itself may not be mathematical or formulaic. At the end of the day, regardless of whether an attorney is making the "best interest" analysis for the worker or whether the attorney is building the case for the settlement in order to demonstrate "best interest" to some adjudicator or regulator, that "best interest" process must be fulfilled. Whether stated in a statute or not, the worker's attorney must be focused on the client's best interest. 

Thus, either the injured worker is successful in settling or she/he is not. Similarly, the attorney delivers value in that process or she/he does not. Either her/his fee is thus reasonable or it is not. And that is a holistic decision that compels the consideration of what has been obtained, in exchange for what has been foregone. The effort of the attorney and the benefit to the client are important considerations. To suggest that such a "best interest" analysis should ignore or exclude certain facts, such as the value of medical benefit determined, potentially raises more questions than it answers. 

I would suggest that the Tin Man argument perhaps applies most logically to Medicare itself. Commissioner Marshall notes that Medicare should not enjoy a “free ride.” However, I perceive Medicare has nothing to lose, or frankly to gain in the settlement process. 

Commissioner Marshall disagrees. He contends that through settlement, Medicare’s reimbursement regarding certain treatment or care becomes a known and fixed amount. He argues certainty in itself is a benefit, whether it is certainty of a full measure of expense recovery, something more, or less. In considering whether there is or is not benefit in that certainty, the touchstone may be that Medicare will not “profit,” that is “gain” income, from any over-estimate of probable future expense, but may face unreimbursed expense if it under-estimates that future probability. In approving a set-aside, does Medicare gain or lose?

Perhaps there is a benefit at least as regards the Medicare “transaction costs,” similar to the corresponding benefit to the payer (or worker, as discussed above)? In this regard at least, perhaps there is substantiation for Commissioner Marshall’s contention that the benefits to Medicare are a “free ride” if those future medical payment estimates are not included in the calculation of the attorney fee?

But, in no regard is Medicare paying an attorney fee, whether the MSA value is included in the fee calculation or not. The fee being paid to the attorney is either being paid by the employer (or its carrier) or the injured worker. Thus, if you accept Commissioner Marshall’s argument that it receives value, Medicare is benefiting at the expense of the payer. Or, if you accept that Medicare neither gains nor loses in the process of settlement, the fact remains that it pays no portion of the fee regardless.

There are various potential scenarios worth mentioning. In a denied case, one in which the employer resists paying any benefits, a settlement might be the only process through which Medicare enjoys any benefit. Certainly, such a case might be tried to a conclusion. In that outcome, a victory for the employer (payer) means no recovery or forbearance for Medicare.  But, a victory for the worker is likely also a significant victory for Medicare, leading to recovery of expended funds. But, Medicare would similarly have no liability for attorney fees in that litigation process, and could be as accurately characterized there as enjoying a “free ride.”

But, in a case in which an employer is providing benefits, Medicare will usually receive its reimbursement from the employer (or its carrier), the “primary payer.” If such a non-disputed case is settled, then Medicare will receive some avoidance of future payment, during the time the worker provides for her/his care from the MSA proceeds, significantly similar to Medicare receiving reimbursement. Arguably, the settlement changes only whether the “payer” as regards that care is the employer (or its carrier) directly or the injured worker (indirectly, with money from the settlement portioned into an MSA). Arguably, in the non-denied case, the payment is not changed, only the identity of the payer.

Perhaps Medicare has no interest as between these two. In the settlement of an accepted and compensable case, with the MSA, Medicare gets nothing that it did not already have. And thus, it seemingly has no interest in a case settling. It arguably has no interest whatever in whether attorney fees are paid or not paid regarding any or all of such a settlement, or whether they are sufficient or insufficient. Medicare may simply have no interest and is thus absolutely the inappropriate entity to discuss or regulate attorney fees as regards those MSA funding amounts.

At the end of the analysis, it seems that interesting arguments have been made both for inclusion and exclusion. That there are seemingly conflicting decisions in that regard may reflect differences in adjudicator perspective or in various lawyering skills demonstrated in the prosecution of the arguments or perspectives. What is clear, is that there remains discussion and debate regarding the complexity of the MSA questions. Time will perhaps bring clarity to that discussion.

Note: Commissioner Marshall was provided a draft of this post and commented on it significantly. His contribution thus to the discussion, perspective and debate cannot be overstated. His participation is gratefully acknowledged and appreciated.  

No One can do it for Me

In recent years, I have seen the Alliance of Women in Workers' Compensation programs at various conferences. Their programs include motivational, but also substantive topics of interest to managers and company principals. The Alliance was only formed in 2016, a product of a recent merger of two professional women's groups. 

The Alliance's mission "is to effect positive change in the workers’ compensation industry through networking, support, mentoring, and collaboration." That is broad and inclusive. In pursuit of that, the Alliance seeks to "engage, enrich, explore, encounter, examine, and empower." There is a further explanation of each of these on the website. 

In 2018, the Alliance produced a half-day educational program within the Workers' Compensation Institute program in Orlando. This was a substantive program focused on "understanding and ownership of business financials." The Alliance noted that "possessing financial acumen is an area of need for both women and men for career advancement." It therefore brought an "award-winning personal finance journalist and author" to the largest workers' compensation conference in the nation to discuss these key topics. I am told that the Alliance will return to WCI360 in 2019 with another compelling program. 

The point is apparent, but too often missed or forgotten. We are each responsible for our personal and professional growth. Through our education and experience, we bring value to those who consume our services. This is true whether we are a state employee, private industry employee, or a business owner. Whether we provide services as a consultant, doctors, lawyers, marketers, accountants, or otherwise, we must each deliver value; that is the foundation of our business relationships with others. And, to deliver value, we must persistently and consistently improve and expand our personal experiences and education. 

As I contemplate the mission of the Alliance, I am reminded of a couple of quotes. For whatever reason, quotes and lyrics seem to resonate with me and they stick in my brain. Often, I remember them in bits and parts, but my old ally the Internet quickly helps me recall them. One of my favorites is Carol Burnett, an incredible American actor and comedian. She once noted: "Only I can change my life, no one can do it for me." Similarly, but more focused on others, Mahatma Gandhi said "You must be the change you wish to see in the world." 

From Carol Burnett, we get that our future and our lives are in our own hands. We decide that we can and will do things that afford us growth. In that regard the Alliance events are positive. They afford the opportunity for substantive personal growth. The chance to hear a dynamic, national speaker provide advice on our understanding of financial management is a prime example. The Alliance provides these opportunities in a manner that relates to workers' compensation, but which is frankly broader. The growth and education in this setting, such as financial acumen, might as easily be used by professionals in almost any industry. 

From Mahatma Gandhi, we get that we and our community can change our surroundings. It is through our individual, personal, and perhaps perceived inconsequential behavior that we can change and benefit our industry, our work environment, and our professional world in its broadest sense. Through our personal behavior, we benefit the whole through service and through encouraging others to likewise serve. Thus, through our effort to improve ourselves, as Carol Burnett suggests, we change the world around us as Gandhi advocated. 

There is a limit to how many seminars one can attend. Every day I am not at my desk, the inbox continues to fill. Our professional lives are busy, complicated, and too often congested. But, the majority of our professional lives is spent in the delivery of our particular service or value. We owe it to our employers to consistently deliver the services for which we were hired. However, we owe it to ourselves individually, we owe it to our community or industry, to stop periodically and either hone our existing tools or acquire new tools. Through these brief pauses, we improve ourselves and our ability to deliver for others. 

In that regard, the Alliance of Women is a positive force. Certainly, it is not the only such force, but it is my focus today. Through its efforts, the efforts of organizations like the Workers' Compensation Institute, and your participation, you can build your repertoire of knowledge, skills, and value. Through such experiences, you can grow. As William S. Burroughs noted, “When you stop growing you start dying.” We should all take these sentiments to heart, continue to grow, and expand our horizons. It is worthwhile for each of us, and it benefits our entire industry and our world. That may come from traveling to seminars or programs, reading books and articles, or even attending webinars. (Shameless plug here, The Hot Seat is addressing benefit sufficiency in workers' compensation in March). 

What are you doing to hone and develop your skills? Are you striving to surround yourself with people that will lift you up? Engage with organizations and events that deliver value to you. Expand your knowledge, experience, and engagement. This is how you grow, and growing is really the whole point. It benefits you personally, your current employer, or clients increases your value in your next professional undertaking, and helps improve our industry and world. 

Remember, no one can do it for you. It is something you have to decide to do yourself. If you have the opportunity to attend a Women's Alliance program or to otherwise engage with this incredible group of leaders, I recommend it. If you read something that provides you benefit, send it to others in your professional circle. If certain programming inspires or benefits you, seek more like it. As we engage, we grow. That benefits us all.

Judicial Discipline and Being Aware

On January 29, 2019 the Florida Supreme Court issued a decision in In re Judge Maria Ortiz, Case No.: SC18-674. This case involved gifts or gratuities to a Florida county court judge. There were also issues regarding the reporting of gifts on disclosure forms. In Florida, the Judicial Qualifications Commission (JQC) investigates complaints regarding constitutional judges. The Commission, its membership, and its authority are set forth in the Florida Constitution, Article V., Section 12. 

In May, 2018, the Commission issued Findings and Recommendations. The Commission concluded, "Judge Ortiz’s lack of awareness as to her personal finances allowed a situation to arise wherein she was the recipient of several substantial gifts which she then failed to identify and disclose as required by the Canons." The "Canons" are sections of the Florida Code of Judicial Conduct. These Canons provide both mandates and guidance to judges regarding their duties and obligations. 

The Commission website describes that Judge Ortiz failed "to properly disclose several occasions in which she and her husband received free hotel accommodations from the RIU Hotel Group." Those "complimentary accommodations were allegedly provided to Judge Ortiz’s husband, Mariano Fernandez, as part of an unlawful compensation scheme involving his position as Building Director for the City of North Miami Beach." Judge Ortiz was not charged with criminal conduct. However, she did not disclose these "free hotel stays" on the "financial disclosures" that all judges must file annually. 

The Commission and Judge Ortiz entered a stipulation, which was considered by the Supreme Court in June 2018. This stipulation memorialized a hotel stay "free-of-charge in an Ocean Front double room," "a complimentary food basket and bottle of wine, " a "free-of-charge, (stay) in a standard Jacuzzi suite," "a special excursion, a trip to the VIP area of the famous Coco-Bongo Show and Disco (provided free of charge)," "an Ocean Jacuzzi Suite" in "Playa del Carmen," discounted "room and board," and another "VIP trip to the Coco-Bongo Show and Disco." 

The stipulation was that the Judge would amend her financial disclosure forms, and would from then on "prepare by herself, or with the assistance of a CPA, all future required disclosure forms." The Court entered a June 8, 2018 order in which it rejected the stipulation, "disapprove(d) the proposed sanction," and ordered, "a full hearing before the Judicial Qualifications Commission to fully develop the facts regarding any misconduct that occurred." 

In October 2018, the Commission and Judge Ortiz entered a second stipulation. In it, they agreed that in 2015 and 2016 the Judge's husband was provided trips "free of charge by the Hotel." They agreed that the Judge's husband "managed the family finances," and that this also included filling "out Judge Ortiz's financial disclosures, which he then provided to Judge Ortiz for her review and signature." The Judge conceded then that she "failed to take reasonable steps to stay apprised of her financial circumstances, including failing to make specific inquiry into how the trips were paid for." 

The Court noted that, perhaps as part of an investigation into her husband's activities, the "the State Attorney's Office informed her that there might be irregularities" regarding these trips. Despite this, the Judge did not "to make reasonable inquiry into her financial circumstances, specifically the funding of the 2015-2016 trips." She also did not file any amended disclosure forms when she was advised of the potential for "irregularities," though she did file amended forms later, "during the JQC investigation." 

The second stipulation agreed that "Judge Ortiz should receive a 30-day suspension without pay, pay a $5,000 fine, receive a public reprimand, and pay the reimbursable costs of the JQC's inquiry, in the amount of $377.45." By order dated December 7, 2018, the Court rejected the second stipulation. It ordered that the JQC conduct further proceedings. It said it "would accept a stipulation with the sanctions of a ninety-day suspension without pay, a $5,000 fine, a public reprimand, and payment of the Judicial Qualifications Commission’s reimbursable costs." 

On December 11, 2018, a revised stipulation was filed. This was the document which the Court addressed in the January 29, 2019 order. The Court concluded (1) "Judge Ortiz failed to take reasonable steps to stay apprised of her financial circumstances, including failing to inquire as to who paid for three trips she took with her spouse," and (2) "failed to verify the accuracy of her 2016 and 2017 financial disclosures, despite signing a certification attesting to the veracity of the information contained in those disclosures." The Court noted that Judge Ortiz "has apologized for her misconduct and deeply regrets that her negligence may have damaged the public’s perception of the judiciary or impugned the integrity of her colleagues." 

The Court accepted and approved the revised stipulation. On January 29, 2019, it noted the Judge's admission that her conduct was not consistent with Canon 6 of the Code, which states: "Fiscal Matters of a Judge Shall be Conducted in a Manner That Does Not Give the Appearance of Influence or Impropriety." It ordered her "suspended without pay from her duties as a county court judge for ninety days," ordered her to "pay a $5,000 fine, as well as the costs of these proceedings, in the amount of $377.45" and ordered her "to appear before the Court for the administration of a public reprimand." There was no dissenting opinion or disagreement, although Justice Muniz "did not participate." 

The lessons are fairly apparent, but good reminders for any judge. Accepting gifts is probably not appropriate. Those gifts need not be directed specifically to the judge in order to be problematic, familial gifts can likewise be problematic. In this instance, the stipulations support that the gifts and gratuities were directed at the Judge's spouse. The Judge had a duty to be informed about the existence and extent of the gifts or gratuities, and an obligation to diligently and thoroughly report gifts. The Judge had an obligation to at least review and likely amend those gift forms when she learned of the potential for error. Finally, all Judges should remember that Canon 6 is focused broadly, beyond actual impropriety, upon the "Appearance of Influence or Impropriety." 

Certainly, this is a Florida case. However, the Florida Code of Judicial Conduct is similar to the Model Code prepared and advocated by the American Bar Association. In that regard, Judge Ortiz' experience may be of assistance to any judge. 

It bears noting that Canon (5)(D) expressly prohibits the receipt of gifts by Judges, and says Judges "shall urge" family members in their "household not to accept, a gift, bequest, favor or loan from anyone," with some express exceptions. The exceptions include resource material for official use, attendance at "bar-related functions" or "activity devoted to the improvement of the law." There is a specific exception for gifts "incident to" a family member's "business or profession." Other exceptions are for "ordinary social hospitality," "special occasion" gifts from relatives or friends, and other gifts from someone close to the judge, close enough that if they appeared before the judge it would be necessary for the judge to recuse (remove her/himself) from the case in any event. 

Canon (5)(D)(h) affords the broadest exception, allowing gifts. However, it is applicable only "if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge." In other words, the gift-giver should not be involved in proceedings, nor likely to become involved. And, if the "aggregate value in a calendar year of such gifts . . . from a single source, exceeds $100.00" then the gift must be reported by the Judge. Some refer to this as the "de minimus" exception," as it allows receipt of small gifts from people or organizations not involved in cases before the Judge. 

In response to various inquiries regarding gifts, the Florida Judicial Ethics Advisory Committee published Opinion 2018-07. This addresses various specifics of gratuities and gifts afforded Judges. It is a recommended starting point for considering specific gift issues. All of the opinions of that Committee, as well as Florida Supreme Court decisions regarding judicial ethics, can be searched on the Committee's section of the Sixth Circuit website. 

In the end, the greatest lesson of In Re Judge Ortiz is likely that the responsibilities of Code compliance are the Judges. The Judge must be aware of her/his own activity and that of family members. The Judge must be responsible in the reporting of financial circumstances, gifts, and gratuities. Someone might help with those forms, but ultimately the judge is responsible. That responsibility includes knowing who is giving the Judge what, but also includes knowing who is giving a member of the Judge's family what. It is perhaps a significant effort, and perhaps could lead to some familial discord, but that pales compared to the potential penalty. 

Judge Ortiz will lose 90 days of pay. County Court Judges earn approximately $151,000 annually. Thus, this penalty is almost $38,000. With the addition of a $5,000 fine, the financial impact on the Judge here is significant. However, the Judge also is publicly named in the Court's decision, and these circumstances will be studied, cited, and discussed. Furthermore, she must appear at the Supreme Court for a public reprimand by the Court. Certainly, monitoring and reporting gifts may be challenging. However, the alternatives are compelling. 

There is, however, an easy path to avoid such potentials. I believe that path is to simply decline any and all gifts. Regardless of whether a donor appears before a Judge or is likely to; regardless of the value of a gift being large or small; the easy answer is to simply, politely, and consistently decline gifts and gratuities. After all, what possible appropriate reason is there for someone to provide a Judge a gift?

I'm Tired, You Tired?

Last fall WorkersCompensation.com reported on the release of a National Safety Council report on fatigue in the workplace. The bottom line is that we are tired. Not a few of us, but almost 70% of us are "tired at work." The foundation of the report's conclusions is "two national surveys, one of employers and a second probability-based survey of employees." 

The results reminded me of comedian Christopher Titus who similarly noted 

"the Los Angeles Times reported that 63% of American families are now considered dysfunctional. My God! That means we're the majority."

Indeed, it appears us fatigued workers are the majority in the American workplace. But, it is a "normal" that should concern us? Is the prevalence of fatigue in the workplace of concern? In the perspective of workers' compensation, there are two primary concerns, the prevention of, and challenges of recovery from, workplace injury.

The "prevention of" issue is perhaps the more obvious. Recently, stress (December 2018) in the workplace has been raised as a concern. Florida is similarly concerned with and will be examining distracted driving (December 2018) in 2019. The news regarding fatigue might bear similar examination and evaluation. In any regard, the "prevention of" issue is broadly focused on the potential for a worker to be involved in an accident that causes injury, whether to the worker or to someone else. 

Surprisingly, there are varying perspectives on the impact of fatigue. The story reports that 

"Ninety percent of employers feel the impact of fatigue on their organizations, including observing safety incidents involving tired employees and declines in productivity. However, just seventy-two percent of workers view being tired as a safety issue."

It is curious that perspectives are so different in this regard. The report offers no explanation or hypothesis for why employers and employees harbor such diverse perspectives on the risks of fatigue. 

The report's authors note that there are a variety of jobs and responsibilities, characterizing some as "safety-critical positions." While it seems that all worker's safety would be critical, this term is commonplace in various industries. Placing these in context, the article notes 

"For example, mistakes on construction sites, around gas line digging areas or behind the wheel of big-rig trucks easily can lead to injuries or even death." 

Those conclusions seem axiomatic. But it seems equally likely that fatigue could lead to injury in a vast assortment of instances. A mistake might similarly lead to injury driving an automobile or forklift, cleaning or operating an industrial machine, and in a variety of seemingly more mundane vocations or activities. While the potential for risk to others might be more significant in "safety-critical" positions, the risk for injury to oneself is perhaps significant regardless of that distinction.

The National Safety Counsel has deployed a "cost calculator" for fatigue. To utilize it, you are asked to pick a state, select an industry (broad category), identify how many employees, and then choose whether the business includes "shift workers." For the sake of an example, I entered "Florida," "Education, Legal, Community Service, Arts, and Media Occupations," 180 employees, and "no" shift workers. That is the best characterization that I could approximate for the Florida OJCC.

The calculator concluded that fatigue costs this "business" $271,745 each year. This is estimated to include $40,029 in absenteeism, $148,519 in decreased productivity, and $83,197 in healthcare costs. The risks that it identified include "obstructive sleep apnea" (15 employees), "insomnia" (17 employees), "restless leg syndrome" (12 employees), and "shift work disorder" (0 employees). The report says Florida has a "moderate prevalence" of sleep deficiency, and the industry mix ("Education, Legal," etc.).

For the sake of curiosity, I repeated the calculation changing only the location. If in Georgia, it increases from $271,745 to $280,606, with all of the difference attributed to "decreased productivity." The same parameters in New York were very close to Georgia's ($280,028), with the difference again being in the "productivity." The California result was slightly lower than Florida ($267,762), again attributed only to the "productivity."

The NWC report concludes that "13% of workplace injuries can be attributed to fatigue." It then identifies nine risk factors for fatigue: shift work, high-risk hours, demanding jobs, long shifts, long weeks, sleep loss, no rest breaks, quick shift returns, and long commutes. Notably, some of those may be outside the control of the employer. And, if an employee is working more than one job, the coordination of multiple schedules might likewise exacerbate some of these factors. And, it notes that about 79% of us do not sufficiently understand fatigue.

So, it is likely that we are tired, or at least that we work with people that are. It is suggested that this may put us and our coworkers at risk of injury. And that risk is perhaps due to causes that are not within our direct control, or at least not readily within our control. Our legislators and regulators may search for ways to make us safer, to enforce safe behavior. 

However, perhaps the one thing within our control, and our best personal defense, is the ability to be introspective and aware. At a minimum, we can each be cognizant that fatigue is problematic. We can pay attention to our breaks, commuting, sleep, and work weeks. And, we can be aware of our coworkers in those noticeable regards. Fatigue is dangerous and worthy of our collective attention.

Effective Deposition Objections

Lawyers (and unrepresented parties) in litigation are tasked with finding out the nature of actual disputes. They accomplish this in the process that the legal profession has named "discovery." Each legal process begins with a complaint or a claim of some kind. The old adage that "there are two sides to every story" comes to mind. Occasionally, the response to such a claim will be to provide what is sought or claimed, but more often there are defenses raised and the process begins a course that could end up with a trial. 

Discovery is supposed to help a party to that dispute reach a better understanding of the dispute and the people or other entities involved. It is a process of asking questions, learning, and often then asking new questions based on what was learned. It is a process about which lawyers often complain. I have met several lawyers who believe themselves to be quite gifted regarding discovery, and yet scornful of the perceived failings of various other lawyers in that process. 

Perspective is a critical word in litigation. Different parties and their attorneys will likely see various facts and thoughts differently. That is a natural effect of human nature. Part of the effort in discovery is to explore those perspectives and the foundations for them. The goal is to learn both what the other party or witness knows and how they came to know it. It is also usually of assistance to know how they reached any conclusions that they express. Discovery is about gleaning information. 

It is important to remember that there are a variety of rules regarding what can and cannot be evidence at trial. These are generally expressed in an evidence code or a set of evidence rules in a particular jurisdiction. There may be requirements that require original documents instead of copies, exclude various statements made by people not presently testifying (repeating what someone else said), or require that certain foundations be established before something can be admitted as evidence. It is generally true that the standards and restrictions on what may be evidence are more strict than the standards as to what might be asked in discovery. Thus, much may be learned in discovery, but possibly not everything learned can be admitted. 

The process is thus challenging. It becomes more challenging because that deposition taken for discovery might later be used at trial. Because the lawyers involved recognize that potential exists, they are likely to strive for that deposition to be as helpful to their client's interests as possible. And, if someone is asking questions that are not appropriate, the opposing party or attorney should voice an objection. The point of the objection is not to conduct an argument at that moment in time, although they sometimes devolve into that. The point of an objection is for one party/attorney to put another party/attorney on notice that she or he believes either a question or an answer is inappropriate or inadmissible. 

But for some reason, there is a persistent misunderstanding about what kinds of objections are critical in a deposition. The failure to raise certain objections during the deposition may result in the party waiving the right to raise that objection later. But, because of the discovery purpose, and the notably lower standards that govern what can be discovered as compared to what can be evidence, the failure to raise many other objections may very well not result in waiver. 

The Florida First District has held that “Failure to object to questions and answers during a discovery deposition does not amount to a waiver of the right to make objections thereto at trial except in limited circumstances.” Objections may later be raised at trial if the deposition is admitted as evidence as if the witness were “then present and testifying.” Waiver occurs only if “the ground of the objection is one that might have been obviated or removed if presented” at the deposition.” See David v. City of Jacksonville, 534 So.2d 784 (Fla. 1st DCA 1988).

As a side note, the Florida Courts have no purview or authority for defining or enacting rules for practice before the OJCC, but the duly enacted Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications (R.Pro.Work.Comp.Adj.), Chapter 60Q, Florida Administrative Code, address discovery, specifically depositions, and how those may be “taken and used.” Rule 60Q6.114(2). The R.Pro.Work.Comp.Adj. adopt and incorporate by reference the “Florida Rules of Civil Procedure.” Thus, while written and adopted by the Court for practice in Article V. Courts, those rules have been incorporated and are likewise rules of this Office. Two provisions are worthy of review. 

Rule 1.330(d)(3)(A) provides:

"Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time."

Rule 1.330(d)(3)(B)provides:

"Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition."

Thus, the general rule is that failure to raise an objection is not usually waiver. But, it is incumbent upon an objecting party, when voicing a “form” objection to provide sufficient information to allow counsel to understand the basis for the form objection, and the opportunity to cure that error. See, Gatlin v. Argonaut Ins. Co., 360 So.2d 459 (Fla. 1st DCA 1978) ("Had they been objected to when asked, Mrs. Gatlin's attorney would have had an opportunity to reframe them."). See also Evans v. Perry, 161 So.2d 27 (Fla. 2nd DCA 1964); Clairson Intern. v. Rose, 718 So.2d 210 (Fla. 1st DCA 1998); U.S. Sugar Corp. v. Henson, 787 So.2d 326 (Fla. 1st DCA 2000); Weyant v. Rawlings, 389 So.2d 710 (Fla. 2nd DCA 1980); State v. Wells, 538 So.2d 1292 (Fla. 2nd DCA 1989).

In this regard, it is likely not sufficient to "object to form," as that does not provide edification to other parties as to what form failure is perceived. If the objection is to "leading" (a question that suggests the answer: "And you were at the bus stop looking at the intersection at that time, correct?"), it will likely not be sufficient to merely say "objection" or "object to form." It would be more appropriate to say "objection, leading." Then, the lawyer asking the question can re-ask the question in a more appropriate format ("Were you looking at the intersection at that time?")

The same is true for "compound questions" (did you see Mr. Smith on Wednesday or Thursday either at the store or on the bus?). A single-word "yes" or "no" answer to a compound question may leave everyone in doubt as to which question is being answered. If the question above was answered "yes," it narrows down that Smith was seen, but does not help to determine exactly where or when. Questions such as this are often encountered in expert depositions regarding medical treatment or recommendations. And, there may well be no harm. For instance, if the medical records show an office visit in April and the next in July, a seemingly compound "Did he return to see you in May or June" might yield a "no" and save time in the process. However, in other contexts, a compound question may create confusion. A simple "objection" is not sufficient. It would be more appropriate to say "objection, compound question."

The objection to form is also important when questions are simply confusing or convoluted. In one somewhat famous quote, a lawyer struggles to get to the point:

LAWYER: When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?

To which the opposing counsel is said to have replied:

OTHER LAWYER: Objection. That question should be taken out and shot.

Many will agree with that proposed fate for this confusing and rambling question. However, that objection does nothing to illuminate why that question was terrible. The objection makes a good point and is humorous. But, though one might wish otherwise, sometimes the lawyer or party asking the questions is not so quick to spot the issue her/himself. 

More appropriately, the objection there could have been "object to the form, the question is confusing." It is not that there is a "right" phrase to state an objection, but that what is stated regarding such a form question must be sufficient to alert the person asking the question that there is a flaw or issue that needs to be addressed. The point of the objection is to allow the lawyer or party asking questions to fix the perceived flaw. In the event a lawyer or party fails to enunciate a competent objection to such a "form" question, it is probable that a later objection will be deemed waived. 

The right time to find out about such an issue is not at trial. By then, the witness that was deposed may well be unavailable to clarify any confusion or ambiguity from such a question. The parties or attorneys may find themselves in legal arguments and disagreement at trial over the meaning of questions and answers. That creates doubt for all involved. The better practice for "form" objections is to make the point during the deposition. This allows the person asking the questions to be forewarned and to perhaps ask a different question.

Thinking of Mollie Tibbetts

I was following a news story in the summer of 2018 regarding a young Iowa student named Mollie Tibbetts. It was a mesmerizing news story. She was staying at a home in Brooklyn Iowa in July, according to FoxNews. She went for an evening jog and then disappeared. July and August brought various news stories and pleas for information. In August, CNN reported that she was found "in a rural area." An autopsy concluded the cause of death was "homicide resulting from multiple sharp force injuries." It was a troubling conclusion of the story for many. Several people since then have related to me how she reminded them of someone in their own lives. She seemed to have a certain familiarity with a great many people.

In August, FoxNews reported that an arrest had been made, Christhian Rivera. It reported that this suspect was not in the United States legally and that he had worked at "Yarrabee Farms for the past several years," which was "less than three miles from where she was staying the night she vanished." The news reported that the employer is owned in part by relatives of Craig Lang, a "former 2018 Republican candidate for secretary of agriculture." To some, there was an undertone of employer responsibility in some news coverage of Mr. Rivera. 

The tenor of some news reports seemed to question Mr. Rivera's presence, and thus ability to allegedly be involved in Mollie's disappearance and death. A Des Moines Register story in September reported that Iowans were polled about the Tibbetts case, and placing responsibility. It concluded that by "almost 4-to-1, Iowans blame employers more than the workers when illegal immigrants are found working in Iowa." Sixty-three percent of Iowans reportedly blame employers compared to 6% of Iowans who blame the immigrants. There appears to be a strong sentiment that employers must do more to verify the status of their employees.

According to FoxNews, One of the Yarrabee Farms owners, confirmed that Mr. Rivera was an employee. And, "that Rivera passed the government's E-Verify employment verification system, despite his status as an undocumented immigrant." FoxNews explained that E-Verify is "intended to maintain a database of I-9 forms and tax records of employees across the country." But, it was later reported by CNN that Mr. Rivera had used someone else's identification when he applied at Yarabee Farms. 

It is not unheard of for people to remain unnoticed. In 2015, there was ample discussion in Florida workers' compensation communities regarding the Brock and Hector (January 2015) cases. They each involved a criminal prosecution in Florida for the use of misrepresentations made in the hiring process. Ultimately, the Florida Supreme Court elected not to review these cases. There was a petition to the Supreme Court of the United States (SCOTUS)(February 2015), but it was declined. In Florida, it remains a crime to make false representations in obtaining employment. 

In a Kansas case somewhat similar to Brock and Hector, the Kansas Supreme Court (September 2017) reviewed a prosecution in which Ramiro Garcia was prosecuted for "identity theft for using another person's Social Security number to obtain employment." The Kansas Court concluded that he could not be prosecuted for that under state law. It concluded that federal law preempted state law. Though Garcia had not been convicted of violating federal law, the Court concluded that state law enforcement could not use his statements on federal immigration forms such as the I-9. 

In 2019, the issue of immigration may arise in Florida's legislature. In the Senate, two bills have been filed, by Senators Gruters (Senate Bill or "SB" 168) and Bean (SB170). Each begins with various findings and definitions. Each imposes duties on state law enforcement agencies and personnel to cooperate with federal authorities. The e-verify database is not specifically mentioned in either bill. 

However, WWSB7 in Sarasota reports that under the proposed legislation, "Florida businesses would have to use a federal database to verify the immigration status of new employees." It quotes one sponsor as concluding that "Florida is one of the only states in the Southeast that currently doesn't ask our employers to use that system." 

But if the legislative debate proceeds, will there be further discussion of Mollie Tibbetts and Christhian Rivera? Is is possible that someone like Mr. Rivera could have their information submitted to e-verify repeatedly and not be identified? Or, is it simply that people are generally smarter than to use their own information? How widespread is such activity? Mr. Rivera's crime, and the tragic death of Ms. Tibbetts, seem to illustrate a disconnect. Is there value to checking a database if people are able to present false information?

From a variety of standpoints, false representations are precluded by law, often referred to as "fraud." There are those who do not perceive the use of someone else's information to obtain employment as "fraud" or even as wrong. Some contend that prosecution of such activity is immoral or anti-immigrant. At least for now, the Florida precedent allows for prosecution of such misrepresentation, but that appears to not be the case elsewhere in the nation.

It is important to remember that crimes are committed by a variety of individuals, regardless of immigration status. Furthermore, there may be various reasons for concealing one's identity in the workplace; perhaps to avoid implications like child support collection, taxation, personal safety, or otherwise. It is possible one might do so to engage implications like credentials, qualifications, or even licenses. Despite those potentials, there is some sentiment that checking identity and prosecuting those who make misrepresentations is inappropriate.

Will the coming debate conclude that mandated database checks regarding whether someone is legally present are necessary in Florida? It will be interesting to watch.

Working and Living, Finding Balance Ourselves

In August 2018, the British Broadcasting Company (BBC) reported that Emails while commuting 'should count as work. The topic is not new, and has garnered coverage in American publications also. More on that follows.

The BBC focus is on commuters. It notes that we have seen an expansion in "wi-fi" availability in recent years, coupled with the ubiquitous nature of smart phones. These two have "extended the working day," according to a recent university study in Britain. This involved a reasonably broad population of "5,000 rail passengers on commuter routes into London." It concluded that "54% of commuters using the train's wi-fi were sending work emails," either getting a head start on the day or catching up on the way home. 

There is supposition that this pattern has been present with smart phones and those who purchase digital plans. However, the train systems have recently been upgrading wi-fi connections on the commuter trains. This change facilitated access for those who had not purchased a digital plan, or who were reluctant perhaps to use their digital plan budget to perform work. This wi-fi expansion provided a somewhat controlled population whose use could be studied.

The BBC contends that the results of the study "raise questions about the work-life balance." And, it questions "if the journey has become part of work, should it also be recognized as part of working hours?" That may be a question of deceiving simplicity. At first blush, time spent working should be considered "working hours." That is the easy part. The harder part is the "blurring of boundaries," as to what is or is not work; The BBC also noted concerns of how that time is counted or accounted for. There is some suggestion that employers paying for such work would want increased "surveillance and accountability" regarding that time on the commute. 

The BBC also sees greater societal benefit in the inclusion of this commute time in the official workday. It contends that the resulting shortening of the "in-office" workday would facilitate flex-time. The person who has to be "in the office" by 8:00 a.m. and working until 5:00 would necessarily be on the train before 8:00 and again after 5:00. This is familiar to everyone, the dreaded "rush hours." The BBC contends that if a worker is working on the train, that employee could board at 8:00 and could depart from work before 5:00. Thus, some volume of workers shifting their commute time and easing "rush hour" congestion. 

These balance and compensation issues may include an examination of employer expectations, employee understanding, and the source of the technology. If an employer is providing the smartphone or other device, should that matter in this discussion? If an employee's performance evaluation includes the promptness of message response regardless of work hours, should that matter?

In America, the compensation issues may be different based on the type of employment responsibilities of the particular employee and the application of the Fair Labor Standards Act (FLSA). That law may require compensation for some employees, while not for others ("exempt"). And the accounting may be an issue as well. But, what is clear is that technology is empowering people to connect to communications and data. The question is not whether people can connect anymore (in most geographical locations), but whether and when people should connect, and what they are accomplishing when they do. 

There are issues of "downtime," with some suggesting that there is a mental health benefit to a defined break from the challenges of the job. They see weekends and evenings as time that should be personal, and encourage a balance in work and non-work time. The work environment, in their perspective, is a stress generator, that should be switched off periodically. This sentiment was recently discussed in Stress and the Workplace (December 2018), from the perspective of finding balance in our lives. One critical point of that post is focused on whether work stress affects us at home, and likewise, whether home stress affects us at work. 

The BBC notes that "working abnormal or long hours" may have significant impacts on us. It notes that such work "has long been linked with depression, anxiety, and even coronary heart disease," without citing any studies or authority to support those broad conclusions. It similarly extols the benefits of "psychological detachment during off-work time," on reducing "emotional exhaustion" and on improving our productivity when we return to work. Thus, there may be real benefits from clear delineations. 

The BBC notes that this will be a challenge for employers, employees, and regulators. It cites a French law enacted recently, which affords certain workers "the ability to negotiate the responsibility to check emails outside standard working hours." The BBC contends that the effects of this law are "gradually gaining ground." Elsewhere in Europe, employers have placed outright bans on after-hours emails. Some have even configured their email systems to enforce limitations on when email can be sent or received. 

The BBC sites a second survey of 2,000 employees, regarding how often they check their work email during off hours. About 40% said "they checked their emails outside of working hours at least five times a day." As a side note, I probably average at least twice that. The survey also revealed, consistent with the work balance discussion above, that "a third said they couldn’t mentally switch off at home, with work always looming over them." 

In 2013, Forbes addressed the work compensation issue in America. It focused on a police officer "required" by his employer "to regularly check" email "beyond scheduled work hours." The case went to trial in 2015, and the court concluded that the officers were "performing work" by checking their email. However, the court also concluded that the officers failed to prove that they were "not properly compensated," according to the California Public Agency Labor & Employment Blog. 

In a Chicago Tribune article regarding that litigation, an employment lawyer was quoted that "It's naive to think no one is going to check their email after work." One company CEO noted the challenge of stopping the practice: "We can't separate work and life," he said. "If it's going to happen, it has to be mandated." Thus, we again reach the earlier conclusion that people are inevitably checking their email or other work communications during their off time. The recent news from the BBC seems to support that as technology is increasingly accessible, we seem to be eager to embrace it and thus work more. 

From the standpoints of work/life balance, stress, and compensation, there are concerns for the employer/employee relationship. The after-hours work may be disruptive, and stressful, and possibly the lack of compensation might be illegal. 

The Converse, similar to that discussed in Stress and the Workplace (December 2018), may be worthy of discussion also. Although rare, it is likely that some people receive non-work emails, texts, and calls while they are at work. Does personal life invade the work environment? I know one worker who has a signal worked out with a teenage child. The worker receives a telephone call or text every day when the child arrives home safely from school. The employee assures me she never replies or responds, it is merely the "notice" of arrival she desires. Possibly that is the most minimal example of non-work communications in the workplace?

I knew a manager at a business who had, through mutual acquaintances, become "connected" on social media with someone who happened to work for her company, though in a different department. As we chatted one day waiting for a meeting to begin, she asked me what I thought her obligation was regarding her noticing that this "connection" often engaged in social media during the workday. We discussed the potential that her "friend's" postings might be generated through an uploading program, and not actually performed at the times represented. Her point, however, was whether she should even alert the "friend's" supervisor. Her concern was that the employee might be disciplined for accessing social media during the workday. Whether real or not, this manager perceived work time being diverted to personal use and acknowledged that discipline might result. 

Perhaps the commentators cited by the Chicago Tribune are correct, that it is inevitable we will do personal tasks at work and work tasks at home? Certainly, doing personal tasks at work may lead to repercussions. Conversely, should doing work tasks at home necessarily lead to some reward, such as overtime or, for the "exempt" employee something like "comp time" away from work? That would not be dissimilar from the BBC's suggestion of a shortened workday.

In the broader context of stress, though, it is possible that these wi-fi, and email message issues are merely the tip of the iceberg. Even without a text or email, how many of us spend our commutes or evenings ruminating over the tasks or assignments of the day? How many of us struggle to put work out of our minds in the evening and on weekends? Similarly, how many of us allow personal issues to cloud our heads during the workday?

A worthy read is The Mindful Lawyer, featured in The Florida Bar News recently. On the subject of "leaving work at work," this provides some thoughts on how to disengage your mind from work when you arrive home. Some of those suggestions might apply equally to cleansing your thoughts upon arrival at work (though, likely not the "take a shower" or "Sit . . . with a glass of wine" suggestions). Perhaps the most helpful approach would be to individually, and thoughtfully, evaluate how we are each separating work from life, and focusing on drawing those lines for ourselves. 

In this regard, I would suggest that the Chicago CEO's conclusion that "if it's going to happen, it has to be mandated" is likely asking too much of others. If I am eating excessive amounts of M&Ms,  maybe it is my personal responsibility to recognize the implications and regulate my own behavior? If our employer locks us out of email, it will not prevent us from ruminating or worrying about work. If we are to make this work/life balance separation, it will require our recognition, analysis, commitment, and attention. If we are to have a balanced work/life relationship, the answer likely lies with us and those who surround and care about us. 

How About Just a Sincere Thank You?

California's First District Court of Appeal recently rendered Canovas et. al. v. State Personnel Board. In it, three employees of the California workers' compensation system sought judicial relief after they were fired by the Department of Industrial Relations (DIR). The case involves some allegations that are downright disturbing, some that might be mere errors of judgment, and it is worthy of discussion both substantively and because of procedural observations of the Court.

Three "long-term employees" were investigated. All three worked in a unit that was responsible for the settlement of certain workers' compensation claims. The DIR had a policy that prohibited those employees from receiving gifts "from vendors with whom the DIR employee regularly does business." The prohibition is qualified, prohibited only "if the gift is intended to reward the DIR employee for doing business with the gift giver." (In other states prohibitions on gifts may be more absolute). The employees received training on the rule and were required to complete an annual form regarding "gifts of $50 or more."

Apparently, there was a period during which enforcement of the rules was somewhat lax, until 2012. A pattern or practice had therefore evolved of vendors "sometimes taking DIR employees to lunch," giving them "gift cards," and "edible treats" delivered to the "DIR offices." In 2012, a supervisor (one of the three employees) was reminded of the gift policy and instructed to review the policy with those she supervised. She elected not to do so.

Thereafter, the lunches, "promotional gifts," and "food to DIR offices" continued. The supervisor was later "again reminded . . . of the gift policy," and a "confirming memorandum" was sent. The supervisor then held a meeting and instructed her team "not to accept gifts from vendors." Despite this, the behavior continued. In 2013, the three employees each elected "not (to) disclose vendor gifts in their signed (disclosure) Forms." Later, there were allegations beyond the acceptance of gifts. An "anonymous letter" accused the supervisor of "required vendors to bring food and gifts." Thus, gifts were allegedly accepted but also solicited. 

During the ensuing investigation, the three "denied knowledge of the lunches and gift cards." The DIR later "heightened its investigation by conducting investigatory interviews and advising those interviewed that failure to provide accurate, honest, and thorough answers could result in discipline, up to and including dismissal." The three were thereafter interviewed, and "each denied, in their separate interviews, knowledge of the vendor lunches and gift cards."

In August 2014, each was terminated, for the receipt of gifts, falsifying their reporting forms, "falsifying time sheets, and being dishonest in their investigatory interviews." Other employees admitted their dishonesty and were suspended instead. The three claimed that they were terminated because of a discrimination allegation that the supervisor had previously made against her superior.

One interesting side issue is discussed in the opinion regarding investigation notes prepared by a DIR attorney involved in the investigation. The three employees sought those notes through discovery, but the state declined to provide them. They also tried to force the attorney to appear as a witness. The Administrative Law Judge (ALJ) denied their motion to force the state to produce them and did not make the attorney testify.  

A second interesting side issue raised by the plaintiffs was their perception that the ALJ was intemperate or biased. 

Ultimately, the ALJ concluded that the three employees "were dishonest and that retaliation was not the primary basis for the termination, and he upheld the termination as proper." A constitutional trial court declined to change the ALJ's conclusions, and the matter was ultimately reviewed by the California First District Appellate Court. The Court concluded that the ALJ's findings, that the firings were not retaliatory or related to the discrimination complaint, were supported by competent evidence. It conceded that the timing of the investigation was "suspicious," but upheld the ALJ conclusions. There were thus serious implications of receiving gifts, soliciting gifts, and attempting to hide gifts. 

On the first side issue, the Court concluded that the DIR attorney was acting as counsel through the investigation. It noted particularly that she was "listed as counsel on many" pleadings, and that the other attorneys involved corresponded with her as counsel. It held "whatever information she had, therefore, she gained as counsel of record for a party." Furthermore, it noted that the interviews the attorney attended were also attended by another DIR employee, whose notes were provided to the three plaintiffs. Thus, there was support for the ALJ's decision not to compel her to testify or to produce her notes from the investigation. 

The Court concluded that there was no justification for calling the attorney as a witness or compelling the production of her notes, saying that plaintiffs:

"fail to show how an examination of (attorney) Holton would have furthered the search for the truth, rather than the sport of targeting opposing counsel with hostile questioning in retaliation for doing her job."

It appears that the Court viewed the attempt to involved the attorney as a witness as a ploy, a litigation strategy, a "sport." Litigation is not a pleasant environment. It depends on professionals and professionalism. Everyone involved should perhaps remind themselves of that periodically. 

As to the second side issue, the ALJ's handling of the plaintiff's claims and litigation, the Court concluded that their allegations were an "argument of last resort." The Court found that no evidence supported bias, but reminded that "Judges, of course, have the sometimes difficult job of maintaining discipline and running an orderly proceeding." In that process, the Court said, "litigants may sometimes confuse the exercise of a firm hand with a display of bias or intemperateness." It reinforced a critical point that it is "not 'unfair' of " an ALJ to "credit the testimony of" particular witnesses over the testimony of others. Determination of which witnesses to accept or credit is ultimately what judges have to do in deciding disputes. 

This is an interesting decision. It reinforces and describes the roles of attorneys and appropriate application of the work-product privilege that may protect them from disclosing their thoughts or testifying. It reminds us that litigation can become involved, heated, and perhaps personal between parties. It is the role of the judge to maintain order and assure a fair hearing throughout, balancing the rights of all involved. Those procedural reminders are worthy of reading. 

But substantively, the decision also reinforces a point that is worthy of remembering. State employees are bound by the rules of state government. Those rules often preclude the acceptance of gifts, not to mention the solicitation of gifts. Florida rules certainly do. It is not appropriate to offer gifts to Florida state employees, and it is not appropriate for such employees to seek them. Time and again I am told that attorneys and others merely wish to acknowledge and recognize our public service when offering some token of appreciation. 

But, to avoid the kind of issues illustrated in Canovas, why not just offer a sincere and heartfelt "thank you?" Whether verbally delivered, or on a card, or in an email, that thank you will let someone know you appreciate what they do. It is by far a more appropriate acknowledgment than offering some gift which might be misinterpreted and which could lead to untoward circumstances for the employee.