RISKVUE ARCHIVE | RISK BITES

People Behaving Badly

By William R. Henry, Jr.
The CIMA Companies, Inc.

Part 1 — In a group meeting of a unionized company, John Mankins criticized supervisor Danny Leonard directly and loudly, accusing him of racism and favoritism. Leonard later met privately with Mankins, to tell him his public outburst was unacceptable, and that he would be suspended if it happened again. On his way out of the meeting, Mankins shouted at Leonard again, and Leonard suspended him. A few minutes later, on the way to the employee locker room, Mankins encountered Leonard again, and cursed him loudly. He was terminated for insubordination. Was the termination upheld, when the case went to the National Labor Relations Board?

No. The NLRB found that Mankins was engaged in protected activity when he spoke up at the group meeting. Under a four-factor test — place of discussion, subject matter, nature of the conduct, and provocation by allegedly unfair labor practices — Mankins’s conduct was not so egregious as to lose protection under the National Labor Relations Act. Commenting in an article published by the Society For Human Resource Management, employment attorney Jonathan Segal noted that it can be difficult to navigate between the risk of violating an employee’s rights under labor law, and the risk of exposing other employees to potential violence in the workplace.

“It’s risk selection, not risk avoidance,” Segal said.

If you have employment practices liability insurance, or nonprofit directors and officers liability coverage that includes employment practices, your insurer can provide legal guidance if you find yourself in a situation like the one described above.

Part 2 — Michael Ilaszczat, an employee for a federal contractor, was stationed on Johnston Atoll, a U. S. possession 700 miles west of Hawaii. This is not a spot where you want to go on vacation. It is used as a chemical and nuclear arms dump, under U. S. military supervision. Ilaszczat’s job was to manage a store for the contractor.

Looking for some fun after work, he went to a bar frequented by soldiers. According to the report by Reuters news service, one thing led to another, and Ilaszczat bet some soldiers $100 that one of them could not kick over his (Ilaszczat’s) head without touching him. Ilaszczat won that bet. When he crashed to the floor, he injured his hip so severely that he required hip-replacement surgery. His employer’s insurer, CIGNA, contested the claim for disability benefits, on the grounds that Ilaszczat had been stupid. Did they prevail in court?

No. An administrative board and later the 9th Circuit Court of Appeals upheld the claim. Federal judge Barry Silverman called Johnston Atoll a “zone of special danger” because of its isolation and limited opportunities for recreation. “Horseplay of the type that occurred here is a foreseeable incident of one’s employment on the atoll,” he said.

NOTE: Horseplay incidents aren’t limited to Pacific atolls, and can be covered by workers’ compensation as well as disability insurance, depending on the circumstances. A few years ago, the eye injury an employee suffered as a result of an office staple-gun duel was ruled compensable. As the employer, protect yourself from ridiculous claims by taking preventive action when you see a risk.

ABOUT THE AUTHOR

William Henry is director of communication for The CIMA Companies, Inc., an independently owned insurance broker and risk management firm with offices in Alexandria, VA, and Baltimore, MD. More information is available at www.cimaworld.com. William Henry can be contacted at bhenry@cimaworld.com.

riskVue | The webzine for risk management professionals
May 2004