Pennsylvania Employment Lawyer & Attorney : Russell Krafft & Gruber Law Firm : Lancaster, York, Harrisburg

Frank Roche of the KnowHR Blog posits his ultimate interview question: “Do you recline your airplane seat? Explain.”  While not listed as one of the top 15 interview questions, I found his inquiry rather interesting.  I followed the links to find that there are a number of interview chat forums that highlight the off-beat interview questions of companies like Google, Microsoft and eBay. These job applicants face question like how many golf balls can fit inside a school bus. Or how much you would charge for washing all the windows in Seattle. Or why, exactly, manhole covers are round and not, say, square.

I wondered if this was the product of a slow day in the recruiting department or if there was some method to this madness. According to a CNNMoney.com article Want a job at Google? Try these brainteasers first, there is a rationale:

Seemingly random questions like these have become commonplace in Silicon Valley and other tech outposts, where companies aren't as interested in the correct answer to a tough question as they are in how a prospective employee might try to solve it. Since businesses today have to be able to react quickly to shifting market dynamics, they want more than engineers with high IQs and good college transcripts. They want people who can think on their feet.

Most behavioral based interviewing techniques are not quite as far out, but they still ring of subjectivity in assessing an applicant’s fitness for a particular job. How do these far out interview questions bode from a legal perspective?

Commentaries on Best Practices for Interviewing identify both job relatedness and uniformity as hallmarks of an appropriate process. These are also paramount in defending legal claims arising from a selection process. The key for employers is to demonstrate that the questions are accurate predictors of job performance and that all applicants had the same chance to succeed. Obviously, the more preposterous the question, the more a judge or jury might question a company’s hiring practices and infer discrimination.

Unsuccessful applicants often point to the subjectivity in an interview process as a basis of discriminatory treatment. Courts note that subjective considerations are not unlawful per se, but obviously subjective decision making provides an opportunity for unlawful discrimination.  See, e.g., Santana v. City and County of Denver. Furthermore, the OFCCP and EEOC abhor subjectivity as a basis for employment decisions because of its potential to have a disparate impact on a protected class. This has been noted in previous postings. Systemic Discrimination: EEOC's Latest Tactic to Redress Discrimination and OFCCP Audits Focus on Systemic Discrimination.

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The United States Constitution is often invoked as a source of workplace rights, particularly as it relates to freedom of speech, freedom from unreasonable search and seizure, and even the right to bear arms. A quick civics lesson reveals that the Bill of Rights creates limits on the government’s actions to curb constitutional rights but does not typically restrain private employers from trampling constitutionally guaranteed freedoms.

Generally, employees of private sector employers have no constitutional “free speech” rights in the workplace, so take pause before you wrap yourself in the flag and speak your mind. In both Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) and Wagner v. General Elec. Co., 760 F.Supp. 1146 (E.D. Pa. 1991), Pennsylvania courts rejected wrongful discharge claims based on First Amendment protects asserted by employees who were terminated for criticisms of their employers.

Gary Huber of the News Journal has an article on Freedom of speech? ... better ask your boss which explores the circumstances of  firings for employees expressing their opinions. Employee comments need not be made at work. Employees have been fired for blogging and posting on MySpace.   Some sites offer advice on how to avoid termination for blogging.

An employer’s power to terminate an employee for expressions of opinion is not absolute. Notable exceptions exist for “union activity”, anti-retaliation provisions of discrimination laws, and Sarbanes-Oxley Act compliance. An excellent discussion of the law in these areas appears in a New York Law Journal article by Jeffery S. Klein and Nicholas J. Pappas entitled When Private Sector Employer Fires Worker for Blogging.

Many employers have chosen to adopt policies on employee communications for a whole range of purposes. Policies can be helpful in defining an employee’s actions in the following areas:

• Authority to comment to news media on official matters
• Authority to communicate with or about customers and vendors
• Use of work time
• Use of employer’s computer and other resources
• Disclosure of confidential or proprietary information
• Prohibition on content of communication that is disloyal, discriminatory, inflammatory, threatening, or disparaging of the company, its employees, customers, products, etc.

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As noted by the hr capitalist, sexual harassment complaints can lead to adverse publicity, undermine management's effectiveness, and cost companies big bucks. Although this situation cannot be entirely avoided, it can be managed with effective investigation of complaints.

Complaints directed at high level executives present particular problems for HR.  The executive absolutely cannot have any direct or indirect control over the investigation.  Claims involving the company's CEO may require HR to go directly to the board of directors to protect the company.  Obviously, such action puts HR in an impossible position, so consider using outside counsel to manage the situation.

The EEOC's Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors has the following summary about what an employer should do when it receives a harassment complaint:

How should an employer investigate a harassment complaint?

An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation.

The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information. The Guidance provides examples of specific questions that may be appropriate to ask.

Before completing the investigation, the employer should take steps to make sure that harassment does not continue. If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

The Link in EEOC's Q&A takes you to the EEOC's Enforcement Guidance which provides a rudimentary outline for an effective investigation, including Questions to Ask Parties and Witnesses, making Credibility Determinations, and Taking Corrective Action.  It is a good starting point for formulating your investigation strategy.

A recent appellate court decision in Dominic v. DeVilbiss Air Power Co., makes clear that an employer's "good faith" efforts in investigating a complaint can limit its liability. The court enumerated good-faith efforts engaged in by the company:

• Adopted a formal zero tolerance anti-harassment policy.
• Launched a total of four separate investigations into the employee’s claims.
• Limited the direct communication between the employee and the offender.
• Encouraged the employee to report any incident of retaliation to management
• Requested a written statement from the employee and a witness list.
• Questioned all the employee’s witnesses.
• Consulted with outside counsel to ensure that it was adequately investigating the employee’s claims.
• Counseled the offender.
• Set up sexual harassment training requiring all salaried personnel to participate.

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Tony Karrer of eLearning Technology has an older post on Top Ten Reasons to Blog and Top Ten Not to Blog. This post has a great summary of blogger motivations collected from those who do it. 

We all have our reasons. For example,  there are a lot of business reasons for doing it, but that's not what sustains my efforts. From my perspective, blogging is social networking in an intellectual forum (and without the drunken photos of MySpace and FaceBook). 

There is an amorphous network of human resource bloggers out there whom I will probably never meet face to face (thanks to the restraining order they filed). I find their posts thought provoking, but also fun.  The network also has a regular carnival which moves around to different blogs, its competitive with HR Power Rankings, its creative with cool aliases like Execupundit  and  Evil HR Lady, but mostly it shares ideas about human resources subjects from different perspectives.

I thank those who have read, commented and referred to this blog.

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The Lancaster New Era has an interesting article entitled "Worker strikes down union at Lancaster parts maker" which describes a twenty-three year old employee's motivations to decertify the Steelworker's union which had represented employees at the plant for 37 years. By a vote of 11-6, the employees voted to become nonunion for reasons which may be typical for many employees (particularly for Generation Yers):

The key issue in the 2005 strike was the Steelworkers' desire to keep Mac-It a "closed shop," meaning hourly workers who were covered by the union contract had to be union members.

Management wanted to delete the "closed shop" provision, contending it caused some workers to leave Mac-It and made it hard to recruit new ones.

"We wanted people to have a choice," Stillman said. "This is America. People should have a choice."

Walton concurred with management. He wasn't happy that he had to join the Steelworkers.

He wasn't happy that 1.3 percent of his gross pay, including overtime and bonuses, was deducted for union dues.

And he wasn't happy that the union contract, not his productivity, set his pay, and that the contract, not his willingness to take initiative, set what tasks he could perform.

"How to Guides" for decertification appear on several websites, like the National Right to Work Foundation. Union decertifying is governed by the National Labor Relations Act and begins with the filing of a decertification petition supported by 30 percent of the employees in the unit covered by the union. The NRLB imposes time frames on filing a decertification petition that generally coincide with contract expiration. The process of certifying and decertifying a union are almost identical, except for the role that an employer is permitted to take in the decertification process.

When approached by an employee who asks "how to get ride of the union" employers must contain their glee and realize their role is limited as follows:

• An employer may not initiate, instigate, solicit, encourage or actively assist in the filing of a decertification petition. Promoting decertification is impermissible because these activities interfere with employees' free choice.
• An Employer may provide "Ministerial Assistance." If an employee asks a management representative how to remove the union, the representative may lawfully inform the employee of the decertification process.
• Once a petition has been filed, an employer may actively campaign to decertify the union. An employer may give employees arguments for voting against the union; communicate its views in writing, including handouts, posters and letters; and otherwise do anything it is permitted to do in a recognition campaign. 

Employers must tread carefully in the decertification process so as not to invalidate the efforts of their employees.   A union may challenge a decertification vote on the basis of employer interference. The decertification petition may trigger other employer rights associated with the withdraw of recognition of the union as the bargaining agent for the unit. These are complex legal issues that depend on careful evaluation of the facts and circumstances.

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Certainly the Congressional policy underlying Title VII encourages efforts to improve employment conditions for minorities and women.  However, sometimes employers lose sight of the fact that the discrimination laws are written to prohibit employment decisions based on factors such as race, gender, age, religion, disability, etc.  Instead of being a neutral factor, these protected classifications can end up playing a role in employment decisions under the auspices of voluntary affirmative action plans, diversity programs, or even "risk management".   The result can be a claim for "reverse discrimination".

There are legal restrictions on preferences that take into account race, sex and national origin under employment policies like voluntary affirmative action and diversity programs. EEOC regulations outline the circumstances under which an employer may undertake a voluntary affirmative action program. Courts typically apply a three-part test to evaluate voluntary affirmative action plans under Title VII. First, there must be a manifest imbalance in the relevant workforce. Second, the plan must be temporary, seeking to eradicate traditional patterns of segregation. Finally, the plan cannot “unnecessarily trammel the rights” of non-beneficiaries. See, e.g., Johnson v. Transportation Agency, Santa Clara County.  Recently, in Decorte v. Jordan,  a federal appeals court ruled that a cultural-diversity report constituted  a voluntary affirmative action plan which was evidence of reverse discrimination because the plan had a 'focus on race in employment decisions and an intent to achieve a desired racial balance."

Favoring a protected class under notions of "risk management" is reverse discrimination.  It is true that reverse discrimination cases constitute only a small fraction of total discrimination complaints received by the EEOC, but that doesn't make this practice legal. I am surprised by how many companies will select non-minority employees for layoff in a reduction in force or discipline believing that they have eliminated potential discrimination claims.  See, e.g., McDonald v. Santa Fe Trail Transp. Co.   Likewise, hiring only employees in a protected class doesn't avoid discrimination litigation.  For example, the EEOC sued L.A. Weight Loss Centers alleging that the company engaged in a pattern or practice of disparate treatment against men in its recruiting, hiring, and assignment of employees. In its suit, the EEOC also charged that LAWL disciplined and ultimately terminated an employee, a trainer with the company, in retaliation for attempting to hire male applicants and for her complaints that LAWL failed to hire qualified male applicants because of their gender.

There are even a small number of cases where outright discrimination is alleged. Two recent cases involve white employees successful discrimination claims based on a demotion and racially motivated verbal harassment.

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Kris Dunn at the HR Capitalist has a thought provoking post on the value of EAPs that includes the following comment:

Want to get a bunch of HR people nodding their heads?  Make a statement about the value of the Employee Assistance Program (EAP) our companies offer, usually as part of the Life Insurance suite.  It's true, it's a great product and every once in a while we get a great chance to refer someone to it and it does some good.  Much patting on the back usually commences...

Before we start the head nodding and the back patting, consider also the limits of EAPs. Many serious and festering situations aren't appropriately handled by saying "Hey buddy, you know the company has an EAP." This approach is a product of not wanting or knowing how to get involved. It is rationalized by the misapplied legal advice that states "keep it job-related".

There is a dangerous trap created by compartmentalize an employee's "work life" and "home life". It may be appealing, but many times this dichotomy is wholly impractical. The two personas of work and home are inextricably tied and that's what makes mental health and other personal problems one of the biggest challenges facing employers. The challenge often cannot be met by a chance interaction with the EAP (no matter how well it is promoted).

One in five American workers suffer mental illness which makes the odds high that an employer will need to manage such a "personal problem". A difficult task given the stigma attached to mental illness which is made harder by the high level of expertise needed to manage performance issues with a mental health aspect. The result of a mismanaged situation is at best a poor performing employee, possibly an ADA claim, or at worst an act of violence in the workplace.

Statistics on the effectiveness of EAPs are scant, possibly because of the confidentiality that surrounds them. I applaud what EAPs seem to do well: facilitate referral/intake for employees who choose to continue participation beyond the three or so free session provided under the typical plan. I caution on what EAPs don't do at all: absolve employers from liability for ADA and other workplace claims.

Employers may need to consider mandatory referral to a health care professional or EAP. There is a distinct difference between management referrals vs. mandatory referrals. Typical situations may involve alcoholism, drug abuse, or risks of violence in the workplace. A mandatory referral requires that the employee consult a healthcare provider as a condition of continued employment. It may be used in compliance with the ADA Guidelines on Medical Exams when an employer "has a reasonable belief, based on objective evidence", that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat to himself of others due to a medical condition.

The medical information obtained from the EAP referral is not confidential and needs HIPAA consent. It can be a part of the "interactive process" mandated by the ADA for assessing disability-related accommodations and/or as part of the employer's performance management-disciplinary process. The referral generates an assessment that determines whether the employee is able to perform the essential functions of a position, evaluates accommodations, recommends follow up treatment, and may set conditions on the return to work. It may implicate FMLA leave.

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A jury ruled in favor of two former Detroit police officers Tuesday, awarding them $6.5 million in a whistleblower lawsuit that focused on allegations of misdeeds by the mayor's staff and extramarital affairs by the mayor himself. One officer alleged he was fired because of his investigation into the mayor's security detail's cover up of mayoral misconduct. The other officer alleged he was demoted because he was the member of the security detail who was named in a police report as the source of information about the mayor's activities. Both officers' claims were based on Michigan's Whistleblower Protection Act.

When you look at this news report, you are left wondering how the city's HR department could have blown it so badly and why their lawyers would have taken a jury trial on these seemingly horrible facts. The city apparently defended the cases based on documented performance problems by both employees arguing that the alleged whistle blowing was no more than a political hack job. The jury thought otherwise.

Whistleblower type claims are difficult for employers to confront for several reasons. First, an obvious whistleblower claim puts and organization on the defensive because it implicates managers in "wrongdoing". As a manager, it is difficult to work with someone who has accused you of violations of law, regulations or code of ethics; particularly, if you view the accusations are chronic, "half-baked", or concocted  to deflect employee performance issues.  So naturally, that manager want to get rid of that bothersome employee.

Second, whistleblower-type cases don't usually present themselves as such at the time of separation. They are typically amorphous and only crystallize post-termination when the former employee consults an attorney. Very few cases involve clear connections between an employee's opposition to an employer's (alleged) illegal conduct and his or her termination from employment. In the vast majority of situations, "whistle blowing" is raised by employees to rebut an employer's explanation for the discharge or under a theory of retaliation.

To avoid making the headlines for a whistleblower claim, I suggest some up front action as follows:

• Ask the Question: Specifically determine whether the to-be-terminated employee has ever made any complaints or comments about the company's business practices such as safety, environmental, employment law compliance, or other legal-regulatory-ethical violations.
• Investigate even the Half Baked Complaints: Hindsight is 20/20 and its what employers are judged by in court. If an employee takes the time to complain about "illegal actions" then you take the time to make an investigation. First, ask the employee make a complete report of his suspicions. If the complaint involves you, let someone else do the investigation, please.
• Chronic Complainers are Occasionally Right: The boy who cried "wolf" was ultimately right much to the chagrin of the sheep.
• Take the Accused Manager out of the Decision Making Process: Bias and retaliation arise when the decision maker is accused of wrongdoing or complacency.
• Make a Written Finding: In the event of whistleblower type complaints, make a written finding that they were investigated and played no part in the termination decision and why.
• Manage the Appearance of Retaliation: Examine the timing of the whistleblower complaints and any discipline or termination decisions.
• Don't be intimidated into Inaction: Don't tolerate the chronic, half-baked complainers who deflect performance criticisms by accusing others of misconduct, if that is in fact what they are.

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A federal judge in San Francisco issued a temporary restraining order blocking implementation of the new  No-Match program regulations issued by DHS and SSA. The regulations were to take effect on September 14, 2007. They are delayed until at least October 1, 2007 when the next court hearing is scheduled.

The lawsuit was initiated by the ACLU and other plaintiffs including the AFL-CIO. A posting by Bill Leonard for SHRM summarizes the gist of the complaint and decision:

In the complaint, the ACLU stated that the DHS and SSA had overstepped their authority by attempting to use wage and tax information to enforce immigration law. U.S. District Judge Maxine Chesney agreed and stated that there were serious questions whether the new regulations were authorized by law. The judge said that the federal government would suffer little inconvenience if enforcement of the rules were delayed.

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EEO-1 reports under the new reporting format are due at the end of the month.  On line access to the form can be obtained from the EEOC website.   Filing information and technical assistance are also available on line.  E-mail extension requests can be made, but are not guaranteed.

There are several areas of change in the EEO-1 Form and some guidance on collecting information.  Employers have always faced a dilemma on how to collect the information. The EEOC previously encouraged employers to identify the race and/or ethnicity of their employees by visual inspection.   The EEOC now prefers that employers gather data through voluntarily self-reporting by employees.

The new EEO-1 Reports also have revised job categories for "Officials and Managers" by dividing it into two categories based on responsibility and influence within the organization as follows:

• Executive/Senior Level Officials and Managers (plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO)
• First/Mid-Level Officials and Managers (direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations)

The revised EEO-1 also will move business and financial occupations from the Officials and Managers category to the Professionals category (to improve data for analyzing trends in mobility of minorities and women within Officials and Managers).

The new EEO-1 Report also made the following changes to the race and ethnic categories:

• the addition of a new category entitled “Two or more races”;
• the separation of “Asian” and “Native Hawaiian or other Pacific Islander” into two categories;
• the replacement of the category “Black” with “Black or African American”; and
• the replacement of the category “Hispanic” with “Hispanic or Latino.”

The revised EEO-1 Report can be found at: EEOC revised EEO-1 Report.  Additional information from the EEOC about the revised form can be found at: Q&A: Revisions to the EEO-1 Report.

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What is Body Mass Index (BMI)? BMI has become the unofficial scientific measure for assessing obesity. BMI is a function of height and weight (BMI calculator).   The Center for Disease Control classifies a person who has a BMI of less than 18.5 as underweight; normal is 18.5-24.9; overweight is 25-29.9; obese is over 30; and extremely obese is over 40.

What is the BMI analysis telling us about our weight?   A Report by the Trust for America's Health recently disclosed statistics about obesity trends.  In the Report, Pennsylvania had the 23^rd highest rate of adult obesity with 24.5 percent of its population having a BMI over 30.   The Report correlated obesity figures with other factors like Diabetes and Hypertension rates. It also noted levels of admitted physical activity (or inactivity). Twenty-Four percent of Pennsylvanians admit no physical activity.

How good is BMI as a measure of obesity?   Martica Heaner points out the limitations of BMI in her posts BMI Blues and Is Body Mass Index a Bad Measure?:

The BMI works well for research purposes, but doesn’t necessarily translate precisely to the individual. Unfortunately, it tends to convey that people that exercise regularly, for example, are overweight, when they are not actually overfat.  A fit person tends to have more muscle, so their body weight is a reflection of body fat as well as muscle and other lean tissue. 

Since the problem with being overfat is that health risks are increased, a BMI in the overweight range is probably not a negative indicator for a fit person. Regular exercise, low body fat and increased muscle mass are all factors that tend to outweigh any health risks suggested by a higher BMI.

Is there correlation between high BMI and bad health? According to the CDC, the BMI ranges were established based on the health consequences associated with obesity as determined by different BMIs. Some challenge this conclusion saying  that the obesity/health correlation is a myth. However, this the correlation between high BMI and bad health is quickly becoming an assumption.   Others have even gone as far as implying that there is a "conspiracy" perpetuated by those who are making fortunes in weight loss products.

Other than being incorrectly labeled "overweight" or "obese", why should we care whether BMI is a accurate health status predictor? BMI is fast becoming the legal standard for determining whether someone is "obese" and therefore a "health risk". With this label comes a whole host of employment and benefit consequences:

• Cost of and Eligibility for Certain Employee Benefits

Individual insurance policies for life, disability and medical insurance almost universally use underwriting procedures that take into account BMI as a basis for determining insurability and premium.  A survey by the Texas Office of Public Insurance Counsel found that insurance company individual health plan underwriting guidelines used BMI as a basis to deny coverage, charge a higher premium, and offer less coverage. The California Insurance Commission has made comments alerting consumers about BMI as a basis for insurance denial.

Some group health plans are community rated and not subject to medical underwriting. These plans calculate premium based on the expected claims of the community not the individual employer group.  Other group health insurance programs can be subject to medical underwriting in which BMI analysis and other factors will be used to price the coverage for the group.  An employer with  a compliment of employees with potential for high claims (including high BMI) will face higher premiums or denial. Likewise, self-insured medical plans that utilize stop loss coverage may undergo medical underwriting where BMI will be factored into the rate for reinsurance..

Group health plan wellness program incentives may be keyed to BMI targets for premium discounts and other incentives.  The availability of incentives to those with high BMI is subject to limitations including situations when it is "unreasonably difficult" or "medically inadvisable" for a participant to attempt to achieve the BMI standard.

• Employment Discrimination

Under the rationale in EEOC v. Watkins Motor Lines, Inc., being overweight and even obese is not generally considered a "disability".    On the other hand, severe obesity, which has been defined as BMI greater than 40, is clearly an impairment.   In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment. See 29 C.F.R. § 1630.2(h). Employee who are regarded as disabled due to obesity are also protected under the ADA.

The ADA prohibits disability based distinctions in health plans. So far the EEOC's Guidance in this area has not classified obesity as prohibited basis for making distinctions. However, if the presumption of health risks continues to be tied to BMI, this area may be reevaluated.

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Since I know nothing about science, I took an unscientific approach to the question of whether BMI is a good measure of health. I made an assumption that professional athletes are in good shape. So I calculated the BMIs for various Pennsylvania and other sports rosters and compared them with the Body Mass Index Table.  Results: Philadelphia Eagles edge Pittsburgh Steelers with the highest average BMI and Roster Percentage of BMI over 30. MVP of the BMI Bowl is Nick Cole (BMI 47.46).

 Here are how the teams finished in the BMI Bowl:

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News outlets have offered up a smorgasbord of statistics highlighting America's weight problem based on the upward trend of the average Body Mass Index (BMI).  The annual cost to employers of obesity is estimated to exceed $13 billion leading some large employers to announced plans to fight obesity among employees.  The primary vehicles for employers to proactively combat employee health issues take the form of education or premium discounts offered in connection with wellness programs.  I have posted on wellness programs before by highlighting successful programs and providing commentary on the process for adopting one.

Typical stand alone wellness program focuses on education as a means of changing employee lifestyles from unhealthy to healthy. The typical incentive plans tie health premium discounts to participation in wellness initiatives. Such actions by insurers have been applauded in the Health Care Policy and Marketplace Review which noted new program announced by United Health, in which health plan participants who take tests and other evaluations to prove they are meeting goals for blood pressure, cholesterol, height/weight ratio, and smoking status would be eligible to receive $500 reductions in their health plan deductible ($1,000 family) for every goal met.  However, many others refer to such actions as fining employees for poor health screening scores.

Nonetheless, legal restrictions curb an employer's flexibility in utilizing healthy living incentives.  Under HIPAA regulations that became effective on July 1, 2007, wellness programs that give rewards for healthy conduct or that penalize unhealthy activities must meet all of the five following standards:

• Limited Reward:       All rewards offered under the program must not exceed 20% of the cost of coverage (total amount of employee and employer contribution). The reward can be in the form of a discount or rebate of premium or contribution; waiver of deductible, co-payment or coinsurance; or the value of a benefit provided under the plan.

• Reasonably Designed to Promote Health or Prevent Disease:    The plan must have a reasonable chance of improving health or preventing disease in a way that is not overly burdensome.

• No More that Annual Qualification for Award:    Individuals eligible to participate must be given the opportunity to qualify at least once a year.

• Uniform Reward Availability for "Similarly Situated" Individuals: The reward must be available to all similarly situated individuals and there must be a reasonable alternative for receiving the reward for any individual for whom it is unreasonably difficult due to a medical condition or for whom it is medically inadvisable to attempt to obtain the applicable standard. Physician verification may be required.

• Plan Material must Describe all Terms:     The plan must describe all terms of the program and the availability of a reasonable alternative. The following language may be used to satisfy the alternative:

"If it is unreasonably difficult due to a medical condition for you to achieve the standards for the reward under this program, or if it is medically inadvisable for you to attempt to achieve the standards for the reward under this program, call us at           and we will work with you to develop another way to qualify for the reward."

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Bob Rosner posed this question at the height of the controversy surrounding Paul Wolfowitz, the then president of the World Bank, when Mr. Wolfowitz engaged in workplace favoritism to the benefit his girl friend. Mr. Rosner concluded that in the case of organizational policies, the answer was a resounding, "Yes."

Employment lawyers would agree that following the rules is essential. Whether the rules are laws, regulations or company policies, the failure to follow them leads to legal claims.   However, the ethics of bending or breaking the rules is viewed differently among highly successful leaders. Even in Human Resource circles there is a debate about the need to follow the rules. Here are some quotes that show the varying attitudes of great leaders about the rules:

"The truth is that many people set rules to keep from making decisions. Not me. I don’t want to be a manager or a dictator. I want to be a leader—and leadership is ongoing, adjustable, flexible, and dynamic. As such, leaders have to maintain a certain amount of discretion."

 -Coach K  

 "Hell, there are no rules here, we are trying to accomplish something."

-Thomas Alva Edison

"Life is too complicated not to be orderly."

-Martha Stewart

"You have to learn the rules of the game. And then you have to play better than anyone else."

-Dianne Feinstein

"If I'd observed all the rules, I'd never have got anywhere."

-Marilyn Monroe

"Integrity has no need of rules."

-Albert Camus

"The rule book is only good for you when you go deer hunting and run out of toilet paper."

-Billy Martin

"Murphy's golden rule: whoever has the gold makes the rules."

  -Murphy

The role of rules defines the culture of an organization. From the top to the bottom, the rules impact leadership selection, organizational development, and succession planning. I invite the HR community to critique the leadership skills of Paul Newman as demonstrated in this clip; particularly, his unique approach to the rules.

  http://www.youtub

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