Struggling With Stress
Stress is an invisible illness. Untreated, it eats away like a cancer at our health and well-being, with one in five in the U.S. reporting extreme stress, and accounting for one in four workforce absences in the U.K.
Precise estimates are difficult to come by, but it’s suggested that 90 million workdays are lost each year due to stress-related issues. According to the American Physiological Association, the top three causes of stress are money, work and the economy — all inter-related.
As we struggle to cope at a personal level, at best we become grouchy; at worst we lay awake at night, eat badly, or damage our relationships.
For many, admitting to stress is seen as a weakness. But we treat this illness like an old friend. We develop coping mechanisms, even discuss the benefit of stress in our lives which makes us more competitive, gives us “an edge,” and accept that stress is just part of an increasingly performance-orientated workplace.
We say that stress isn’t about the job or the workplace, it’s all about the individual. In other words, we accept that stress is ‘our’ fault, not the employers.
I don’t buy that thinking. Employers owe a duty of care to their staff, which extends to their employees’ mental health. They can’t sit back and react, they need to be proactive and be up to speed with the latest in occupational health.
Stress may be temporary or permanent, and employment-induced stress may be difficult to prove with certainty — but increasing workforce analytics may start to give valuable clues.
The absence of physical conditions often make the case difficult to prove and foreseeability is often a consideration. But it’s clear that the law on liability for stress at work is continuing to mature and as more recent cases are beginning to show, this is a developing area and one which we are likely to need to contend with in the future.
Isolation and Insecurity
For the teleworker, the problem of stress can become acute. Teleworkers are as equally affected as office workers by politics, deadlines, lack of guidance or training, or sometimes bullying — perhaps more so.
They often feel they must give more to be recognized, whilst at the same time personal contact with their work colleagues other than by telephone is often reduced.
What looks like an easier life with more personal flexibility can in fact be one of isolation, insecurity and lack of personal contact. I’d argue that homeworking creates an increased environment for work-related anxiety.
It’s a potentially growing problem, which is set to rise as mobile technology improves and the difficulties of commuting increase. Employers think teleworkers are 30 percent more effective — and we are all increasingly likely to be forced into that avenue.
Failure to have adequate processes in place not only leave the employers open to claims for stress-related illness, but also exposes their insurers, who may lack any sort of reliable data, records or consistent approaches.
For homeworkers, “out of sight” shouldn’t mean “out of mind.”
Union-Related Regulations Increase
The National Labor Relations Board surprised virtually no one when it issued a trio of pro-employee decisions as 2014 drew to a close, according to employment-law experts.
But it’s anyone’s guess what will happen after a coalition representing an array of industry sectors and businesses filed suit in the U.S. District Court for the District of Columbia to stop the NLRB from moving forward with its “ambush-elections” rule, which it issued on Dec. 12.
In each of the board’s decisions — regarding employee use of company email for union organizing; the NLRB’s so-called “quickie-election” rule; and changing its standard for deferral to arbitration awards — the board basically told affected employers they will have to adjust to the enhanced union organizing efforts within their workforces.
“It’s not unprecedented to see a rush of substantive NLRB decisions at the end of the year, especially with a board member leaving,” said Steve Bernstein, a partner in the Tampa, Fla., office of Fisher & Phillips, referring to outgoing member Nancy Schiffer, whose term ended Dec. 31.
“They had a full quorum [five voting members] and an upcoming changeover in Congress, so given the Board’s makeup [three Democrats, two Republicans] and based on earlier actions no one is surprised with the flurry of decisions favoring employees.”
“There has always been tension between employer-property rights and union-access rights, and this is more of the same.” — Steve Bernstein, partner, Fisher & Phillips
Bernstein, in fact, characterized the email decision as “seven years in the making,” with labor unions working to get a Bush administration NLRB rule overturned since the day President Barack Obama took office.
“This decision is the culmination of those efforts,” Bernstein said.
What’s most important, he said, is where the email decision fits into the context of other NLRB decisions, and to what extent it’s part of the broader trend of eroding employer property rights.
“There has always been tension between employer-property rights and union-access rights, and this is more of the same.”
Employers Losing Control
Patrick Muldowney, a partner at Baker Hostetler in Orlando, Fla., said the main takeaway on the email decision is that employers are losing even more control over what occurs in their workplaces, including the ability to enforce their email policies.
“Apart from the idea that this is the employer’s [email] network, its asset, it also gets into the idea of what is work time and potentially opens up significant access to unions and union sympathizers,” Muldowney said.
“There are employers that do have very strict ‘business only’ policies regarding email, and they have always been difficult to police, but [employers] still had the right to do so,” he says. “Now, in light of the board’s decision, that can be more of a risk.”
Muldowney says employers must tread carefully when reviewing or even becoming aware of employees’ emails, especially regarding employee discipline. They need to know if an email is an exercise of Section 7 rights.
“Employers must review their policies and amend them so they are not subject to attack by unions after an unsuccessful election.” — Patrick Muldowney, partner, Baker Hostetler
“Employers must review their policies and amend them so they are not subject to attack by unions after an unsuccessful election,” he said.
Legal experts also said the decision probably will raise questions about the definition of “nonworking” time, because the NLRB decision stated that workers only have the right to use the company email system for the labor-related issues during nonworking time, “unless an employer can show that doing so would hurt production or discipline.”
Joel Barras, a partner and employment attorney at Reed Smith in Philadelphia, said the email decision also raises a potential litigation issue.
“An employer’s communication system may also become an incredibly effective tool used to recruit members to form or join class-action cases,” he said.
While the NLRB said its “quickie-election” rule was simply “modernizing its processes,” legal experts said that reducing the time between the filing of a petition and a union election denies employers an adequate chance to stage an anti-union campaign prior to employee voting.
This rule goes into effect on April 14.
The average time for the election process is now somewhere between 38 and 42 days, experts said. The new rule can drop that number to as few as 10 or 20 days, which critics contend, creates an “ambush-election” scenario — and is a serious setback for employers trying to respond to worker demands and union promises.
The third key NLRB decision changed the standard for deferral to arbitration awards for employees who allege they suffered retaliation or reprisal for engaging in union and/or protected concerted activity in violation of the National Labor Relations Act.
The NLRB ruled that employers urging deferral to an arbitration award now must prove that the “statutory issue” was presented to the arbitrator, that the arbitrator considered the statutory issue, and that NLRA law “reasonably permits” the award.
The rule gives the NLRB more discretion whether to exercise deference to arbitration procedures, Muldowney said.
“The standard used to be deferring to an arbitration award when it wasn’t clearly repugnant to the NLRA,” he said. “You might say this gives an employee another bite at the apple if they are not happy with an arbitration outcome. The board has said it no longer needs to automatically defer to arbitration decisions.”
It’s unclear whether the new Congress, with both bodies now controlled by the GOP, will make it tougher for the NLRB’s employee friendly decisions.
Muldowney said that Obama administration nominees may face a tougher approval process.
“It won’t be as easy to get more hardcore pro-union members through the Senate,” he said. “Or, nominees for the board could become collateral damage relating to whatever battles Congress has with the president regarding other issues — the immigration executive order, for example.”
Barras doesn’t expect current board members to be swayed by the GOP-controlled Congress, which he said, only has two levers it can pull: not approving a presidential nominee or withholding funding. The latter probably will not happen, he said.
For now, Barras recommends that organizations review personnel policies and adopt and/or strengthen existing union avoidance programs, as waiting for a petition to be filed might be too late.
“You have to stay on top of it,” he said.
Diversifying Top Management in Workers’ Comp
The panel at the inaugural Women in Workers’ Compensation (WiWC) Forum. From left to right: Eileen Ramallo, Elaine Vega, Nina Smith-Garmon, Nancy Hamlet, Michelle Weatherson, Nanette de la Torre, Danielle Lisenbey.
Across the country, the business community is engaged in a robust conversation about women being under-represented among c-level positions.
Why aren’t more women breaking into upper management roles? Does gender bias still exist? And, perhaps more importantly, what can women and men do to add more diversity to top leadership ranks?
Elaine Vega and Nancy Hamlet, of Healthcare Solutions, the Duluth, Ga.-based health services provider to the workers’ compensation and auto liability/PIP markets, have discussed the issue between themselves many times over the years.
The duo agreed that starting an industry-wide conversation would be an effective start to addressing the challenge. After three years of internal discussions, the inaugural Women in Workers’ Compensation (WiWC) Forum became reality. Judging by the attendance, content and feedback, it was an auspicious, very successful, debut.
Specifically, Healthcare Solutions and LRP Publications teamed up at the National Workers’ compensation and Disability Conference (NWCDC), held Nov. 18-21, 2014 in Las Vegas, to present the first WiWC event focused on the development of women as leaders within the industry. The WiWC debut featured a keynote speaker, a panel discussion and a networking cocktail hour.
“We believe this is just the beginning for the WiWC organization,” said Hamlet, senior vice president of marketing, adding that the event’s main theme was the conversation regarding challenges that still exist for women in the workplace is “current, real … and relevant.”
Originally the forum was allocated a room to hold 150 people. Vega and Hamlet worried about the room being too large, so they asked LRP what the contingency would be to make the room smaller if they couldn’t fill it. They needn’t have worried, as more than 400 women, and some men as well, registered and attended, requiring an even larger room.
“Clearly, the topic is relevant and there was plenty to discuss,” said Vega, senior vice president of account management.
Hamlet explained that WiWC was formed to create an open forum to promote a strong sense of community and support for current and future female leaders in the workers’ compensation industry. Going forward, the WiWC forum will provide insight and ideas with opportunities for members to:
- Engage … with accomplished industry professionals and build lasting relationships.
- Enrich … their knowledge base with tactical insights from speakers and panelists.
- Explore … opportunities and challenges facing women leaders today.
- Encounter … senior executives’ perspectives on leadership.
- Examine … leadership strategies and how to effectively apply the strategies.
- Empower … themselves and others to achieve success and groundbreaking results.
At the inaugural event, keynote speaker Peggy Holtman, co-author of “Leading at the Edge: Leadership Lessons from the Extraordinary Saga of Shackleton’s Antarctic Expedition,” discussed how a seemingly unconnected historical event can offer critical lessons on leadership in the workplace, especially for women looking to move into top executive spots.
After Holtman’s talk, a panel discussion, moderated by Vega, offered the perspectives of five workers’ compensation industry executives on ways in which women can navigate past the glass ceiling. Panelists included Eileen Ramallo , EVP Healthcare Solutions; Danielle Lisenbey, CEO Broadspire; Nanette de la Torre, VP Zenith; Nina Smith-Garmon, EVP Mitchell International; and Michelle Weatherson, Director, Claims Medical and Regulatory Division, State Fund of Calif.
The panelists discussed a wide range of topics related to women in workers’ compensation. For example, one topic focused on the need to take the big risks when it comes to moving past workplace barriers. Other topics included the importance of women in higher positions serving as sponsors and advocates for younger, less experienced women; and the impact of industry consolidation on women’s careers and how to best manage that change. Another topic was how women could best master conflict and emotions in the workplace.
“What’s clear is conflict has to be managed; it will not go away. It will only get worse,” said Healthcare Solutions’ Ramallo. “It then can create other rifts that won’t necessarily be visible immediately, but can have a very large impact. You have to be able to understand what it is early on from another’s perspective, why the situation exists, and then encourage and try to resolve a conflict situation, whatever may be driving it.”
In the wake of the first WiWC Forum, Hamlet noted that while there are countless general reports showing that women have not yet achieved equal representation in top leadership positions in the workplace, studies deal with averages rather than individual stories. And while women must continue to look at the data and work toward closing the gap, hearing from accomplished women in the workers’ compensation industry at NWCDC drove home critical messages on a person level.
Today, Vega and Hamlet are looking to expand WiWC to make it “truly owned” by the industry. For example, they expect to recruit companies interested in becoming sponsors, forming an advisory council, creating a charter and discussing future possibilities for the organization on both the national and regional levels.
“Much remains to be done, but I have confidence that we will come together and make the organization stronger so that it prospers for years to come,” Hamlet said. “After all, it’s clear that our industry is filled with talented women who can make things happen!”
Vega added that WiWC has already received requests to live stream the event in the future, so it will examine the feasibility of that option in an effort to be even more inclusive.
“We have a shared vision for improving opportunities for current and future women leaders in workers’ compensation,” Vega said. “It doesn’t matter our gender or our title, it’s all about supporting the greater vision. As was said several times at the event, this is just the beginning. We hope more women and men will join us in this continued dialogue.”
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Healthcare Solutions. The editorial staff of Risk & Insurance had no role in its preparation.