April/May 2002 Issue Number 34

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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FDIC West: April 28-May 2 at the Sacramento Convention Center. Call 888-299-8016 for more information.

National Conference of Women in Policing: April 30- May 4, Washington DC. Check www.womenandpolicing.org for more details.

Staff and Command School presented by Maryland Fire and Rescue Institute, May 1-8 at the Adams Mark Hotel, Dallas, TX. Linda Willing will be on the faculty for this program. Go to www.mfri.org for more information about the course.

Fifth Annual Women Chief Fire Officers Fire Service Leadership Conference November 8-10, 2002 at Motorola University, Schaumburg, Illinois. Call 630-990-2390 or email djarvis@interaccess.com for more information.

When Policies Do More Harm than Good

Every workplace has them, sometimes volumes of them. They are workplace policies that address everything from dress codes, harassment prevention and reporting, ethics, and public conduct. But do your polices really have the desired effect? Are they making the workplace more fair, inclusive and equitable, or are they doing more harm than good?

Consider the case of Jeffrey Janes, a meat cutter for a Wal-Mart Superstore. Mr. Janes had worked for Wal-Mart for five years and been promoted twice during that time. By all accounts, he was a good employee. In the summer of 1995, Mr. Janes noticed that what he considered to be edible meat had been discarded because it was past its sales expiration date. The meat had been put into an outside trash bin to be hauled away by a salvage company. Mr. Janes took some of the discarded meat and cooked it up into a carne asada lunch for himself and several other employees. He did this on several occasions, always on his free time during lunch.

When Wal-Mart found out what Mr. Janes was doing, they fired him, saying that he had stolen from his employer. Wal-Mart has a very strict policy about employees taking anything from the store- according to the policy, employees may not even eat the candy that falls from a broken bag. Mr. Janes sued Wal-Mart for wrongful termination. The case was decided in his favor in the lower court, and again in the 9th Circuit Court of Appeals. The court said, "Manifest injustice would not result from allowing an employee fired for eating a few pieces of expired meat to keep his jury award."

Of course employers do not want workers to steal from them, and most have polices which address this. But Wal-Mart's zero tolerance policy ended up doing more harm than good in this circumstance. How much money did Wal-Mart spend fighting this case in court and on appeal? How much credibility was lost with their employees? How much time was wasted trying to win this case?

Zero tolerance policies are always dangerous because they do not consider context or intention. In this case, an employee took something that had been thrown away (and which Walmart would have paid someone to haul off), and put it to good use. Other employees in the store benefitted. One can only imagine how store employees reacted after Mr. Janes was fired.

Rigid enforcement of policies even when they don't make sense is one of the best ways to destroy morale and create workplace subversives. No one wants to work for someone they feel is an unreasonable jerk. Although they may be forced into meeting the letter of the law, the spirit is often another matter. Carne asada lunches may have only been the beginning at that Wal-Mart store.

How could Wal-Mart have handled the situation differently? How about embracing the behavior and using it as a way of boosting workplace morale? Wal-Mart could have sponsored a weekly employee barbecue. Or they could have started a program where meat that does not sell in a timely way is donated to a local shelter, with employees delivering the donations. Certainly clinging to their rigid policy and ultimately losing twice in court was the worst possible strategy for the development of good workplace attitudes and practice.

This case provides just one example of how workplace policies may actually do more harm than good. More examples will be offered in future columns.

Source: Janes v. Wal-Mart Stores Inc., 9th Circuit Court of Appeals, 00-55611

New York City Mayor Michael Bloomberg recently stated that hiring more minority firefighters was a "major concern" for him and newly appointed Fire Commissioner Nicholas Scoppetta. The FDNY is currently one of the least diverse city departments, with over 94% of its members being white males. The percentage of African-Americans on the department has been steadily dropping since 1993.

Source: FireNewz, March 21, 2002

The ADA and Communicable Disease

Spencer Waddell was a dental hygienist who had been practicing for several years. When a routine blood test showed that Mr. Waddell was infected with HIV, he was given only one option- he would have to stop treating patients and take a clerical position at half his former pay. When Mr. Waddell refused to do this, he was fired. He later sued his employer for violation of the Americans with Disabilities Act (ADA).

HIV infection is a recognized disability under the ADA. The law bars employers from asking about a worker's HIV status or discriminating against those with the virus. In February, a Wisconsin teenager was awarded $90,000 because she was fired from her grocery store job after her employer found out she was HIV positive.

But the ADA apparently does not apply equally to everyone. The law states that exemption from the law is possible if an employee poses a "direct threat" because of his or her infection with a communicable disease. A direct threat is defined as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."

Mr. Waddell lost his lawsuit and the subsequent appeal. The court took the position that the potential of him infecting a patient through blood-to-blood contact was enough to justify barring him from work as a dental assistant. The court said, "The possibility of transmission is enough [to pose a direct threat] even if reported incidents of transmission are few or nonexistent, and the odds of transmission are admittedly small."

Consider the implications of this case to the fire service. There are a number of firefighters- perhaps no one really knows how many- who are infected with communicable diseases such as HIV and hepatitis. Should they be barred from performing aspects of their jobs that create the possibility of blood-to-blood contact with another person? Certainly that potential exists in the normal course of a paramedic's day. But even firefighters who do little or no medical work have the potential to have blood-to-blood contact with others when working around broken glass on a fire scene, torn metal at an extrication, or any number of other emergency scenarios. How should firefighters with HIV or hepatitis be treated?

At the present time, there is no consistent standard nationwide to address this issue. Some departments do not even test for these viruses, others may know that members have tested positive but do nothing if the person is asymptomatic. Developing policy in this area is difficult, as issues of ethics, privacy, protection of personal rights, and protection of citizens all come into play. The 11th Circuit Court of Appeals has made a strong statement that the ADA does not provide job protection to someone who poses a direct threat to others. It will be interesting to see how this decision and others that follow will affect how fire departments do business.

Sources: Waddell v. Valley Forge, 11th Circuit Court of Appeals
Associated Press, February 5, 2002

© Linda F. Willing, 2002