Losing Count

 Over the last decade or so I really have lost count of the number of times I’ve had to tell somebody that the business case we are discussing really isn’t as simple as they’re making it out to be. Part of that is just because I spent most of the last 12 years teaching business strategy and policy to undergraduate business students, but in fairness most people like problems with simple solutions, and are therefore prone to looking for simple solutions to every problem. But if running a business was really as simple as it looks you wouldn’t need people to manage them, and my students and I would all be out of a job…

Consider, if you will, a case that came up last week about a customer who ordered a bicycle online for pickup at a local dealership. Unfortunately, the bike in question has a load limit of 300 pounds, and when the customer turned up at the story to collect his purchase it became apparent that he was somewhat heavier than that. The article in the Global News doesn’t specify the customer’s exact weight, and he wasn’t willing to disclose it to the interviewer, but it was obvious enough that the owner of the bike shop refused to let the customer leave with the bicycle. This went over about as well as you would expect…

The shop’s owner argued that if the customer got on the bike at his current weight there was a non-zero chance that the frame would collapse, causing possibly serious injury. This is true, by the way – and if such a frame failure occurred while the customer was riding in traffic there is a real possibility that he could be killed in the resulting accident. The owner explains that not only was he unwilling to risk the legal exposure, but he felt that he had an ethical responsibility not to allow someone to be injured or killed by something he sold them...

The customer, in turn, argued that he knew better than to use his purchase in an unsafe manner, that he would wait until he had lost enough weight to get below the 300 pound limit before trying to ride his new purchase, and in any case it was a legal purchase and nobody else’s business what he did with it. The owner offered to store the bike for him until he reached the weight limit, refund his money so the customer could buy something else, or just release the bike if the customer would sign a waiver promising not to sue in the event of a frame failure, but the customer said he didn’t think he should have to sign a waiver just to pick up something he had already paid for…

Now, one could reasonably argue that a business can’t be held responsible for the unsafe usage of its products, no matter what those products happen to be. If a hardware store sells someone a chainsaw, and the customer manages to injure himself (fatally or otherwise) while trying to learn how to juggle chainsaws, no one is going to blame the owner of the store. The problem here is that riding a bicycle isn’t an obvious misuse of the product, and even if the bike shop (or the manufacturer) can claim to have pointed out the weight limit and the risks involved in exceeding it, there’s still a possibility that a jury might find against them…

I don’t have a simple answer to this question, either; as I noted at the top of this post, I’m not sure there is one. The underlying problem is that the standard in a civil trial isn’t “beyond a reasonable doubt,” it’s “what a reasonably prudent person would expect.” You also don’t have to convince all twelve members of the jury that you are correct; you only need 50% of them plus one. As tempting as it might be to just say the customer was warned about the hazards of the situation, and he can make up his own mind about safety, I think it is understandable as to why the owner of the bike shop is reluctant to roll those dice without at least a signed statement acknowledging that the customer was, in fact, warned about those hazards. Especially considering that nothing in this story suggests that the customer actually is reasonable or prudent. But even leaving the legal, ethical, or moral implications out of it, how does one resolve this problem from a practical standpoint?

Coming Home to Roost

I was reading with great interest the sentencing phase of the trial of the “revenge porn” site operator in San Diego, California – said Internet entrepreneur has now been given 18 years in jail for identity theft and extortion – and reflecting that this represent a change from the usual results of Internet crime. For the most part, people who commit crimes like these online remain free, and frequently remain anonymous, because their activities are concealed online or because their actual physical location places them beyond the reach of US law. In this case, however, not only was the operator living in the US, he was extorting money from people using PayPal…

You can catch the original store from the San Diego Union-Tribune site if you’d like, but the details are pretty basic. The defendant in the case, Kevin Bollaert, started a website where anybody who wanted to could post embarrassing pictures of ex-partners or anyone else they wanted to publically humiliate. Initially he simply refused to acknowledge demands to take the offending pictures down, but eventually he began charging the victims for the privilege of no longer being exposed online, with prices starting at $250 and rising (presumably) based on what the market would bear; e.g., how embarrassing the pictures were and how badly a specific victim wanted them taken down. This eventually amounted to over $30,000 – at least, that’s what was left on the site’s PayPal account when the law finally caught up with him…

What struck me about the case, apart from the absurd victim blaming you see whenever any compromising documents or pictures are released online, was just how divorced from reality the site operator and all of his colleagues and their apologists actually are. Identity theft and extortion to prevent it are actual felonies, not some sophomoric self-amusement, and the punishment for doing them could be decades in jail, not just a strongly-worded reprimand. Just because criminals on the other side of the world are safe from prosecution under US law doesn’t mean that some idiot in San Diego is untouchable, either. And, by the same token, no matter how safe you believe your files, data or identity might be, having any of it stolen is always going to be a hazard – even if it doesn’t involve compromising pictures…

From a business standpoint, I find this case more than a little alarming for at least two reasons. First, there’s the issue of keeping our own personnel from doing something this bone-headed while at work, and unintentionally bankrupting the company. Until recently I would have said that this was a distant concern, but apparently there are people who will assume that a crime isn’t a crime if you commit it online – and there’s no way to be sure that one or more of those people don’t work for us. Just as important, though, is the fact that any compromising information that the company has ever allowed to move over the Internet is also out there, even if it wasn’t compromising of anything in particular when it was recorded or sent. Which means that even if industrial espionage or extortion directed at an entire company using former Internet documents haven’t happened already, they eventually will…

We’re already living in a world where any bad choices or stupid remarks you have ever made can be preserved electronically and come back to haunt you forever. Now, it appears, we are also facing the possibility of having every embarrassing thing anyone in our entire company has ever said or done coming back to bite us at any moment – and the prospect of serial criminals who would apparently commit such outrages for their personal entertainment and relatively tiny amounts of money…

Outrage in the Air

Looking back over my records I find that nearly 10% of all of the entries for this calendar year have involved airlines behaving badly; usually in some completely preventable way that inconveniences, endangers, monetarily damages or just outrages customers and potential customers. Some of these merely reflect momentary lapses of reason or cases of outright incompetence (such as failing to get an unescorted minor onto the correct flight), while others involve blatant criminal malfeasance (such as the employees accepting bribes to smuggle packages onto departing airliners), but nearly all of them are things so absurd that it passes understanding how a service-providing company can do them and remain in business. It’s almost enough to make you believe in collusion between the major companies in the industry – not to fix prices or to defraud the public, but simply to maintain service levels bad enough to convince the travelling public that one airline is much the same as any other…

Now, in fairness, operating a company that transports tens of thousands of people for billions of air-miles aboard complex machines that can be rendered completely inoperable in seconds by a single mistake by a single employee trying to park one of them is harder than it looks. To make matters worse, in recent years it has become increasingly difficult to differentiate one airline’s service from another, which has left many of the major carriers competing entirely on price. There was a time when it was possible to charge more for higher-quality food and drink, better services, or even (it has been done) more attractive cabin personnel, but today most carriers have to cut back on everything to remain competitive, which includes lowering expenses for recruiting, training, and especially salaries. What is less clear is how far one can lower staffing quality before the resulting lawsuits begin to eliminate any resulting savings…

Take, for example, the case of Angeline O'Grady, who was attempting to transport her late husband’s ashes to England for burial on a US Airways flight, when a TSA idiot insisted that since ashes aren’t a solid they had to go in her checked baggage. A competent airline might have tried to accommodate a customer during a difficult time, but US Airways gave away her seat reservation and forced Ms. O’Grady to pay for a business-class seat since she was delayed checking in by the aforementioned TSA idiot. That would merely be callous; however, when Ms. O’Grady landed in England she discovered that at some point during the flight, someone had opened her suitcase and stolen the urn containing her late husband’s remains…

As I have noted in earlier posts, a failure in operational security this severe has a very real chance of destroying the entire airline (as well as any aircraft that somebody manages to sneak a bomb onto because no one was paying attention). Here again, a competent airline might have considered apologizing for the theft, launching a serious investigation, calling on law enforcement agencies on both sides of the Atlantic to help them find out what happened, firing everyone who had access to the relevant baggage facilities during the time when the urn was stolen, or having all of the employees who could have stolen the urn arrested and letting the police/FBI/Scotland Yard figure things out from there. I’m not sure I have an adjective appropriate to describing an airline refusing to so much as explain what they think happened, and claiming they have no responsibility for the theft and did nothing wrong; calling this “stupid” would be an insult to stupid people. And that doesn’t even consider stonewalling the customer and attempting to tie up the case in court once the customer finally got a lawyer…

Here in one story we’ve got criminal negligence (leaving the baggage vulnerable to theft), criminal malfeasance (assuming it was a company employee who committed the theft), incompetent customer service (charging a bereaved widow for a more expensive ticket? Really?), incompetent public relations (saying things like “we’ve done nothing wrong” after losing someone’s mortal remains), incompetent operational management (letting things escalate to the point we found out about it) and incompetent senior management (not just quietly settling the case and moving on). And the company isn’t done yet; a few weeks ago attorneys representing US Airways filed a motion to move the case to Federal court, since this outrage took place on an International flight. That will hold up proceedings, make the whole case harder and more expensive to try, and might cause Ms. O’Grady to give up, but is almost certainly going to make a bad situation even worse for the airline…

To quote the late Frank Zappa: “It’s not getting any smarter out there, folks…” Keep watching the skies, everybody, because there’s no telling what kind of shenanigans will be going on up there next…

Stranger than Fiction Part 7

Some years ago there was a huge flap online about high school students using a series of the gel bracelets then popular with kids of that age to signal things like whether the wearer was sexually active, was looking for a partner, was not looking for a partner, or had just finished up with their tenth (or whatever number it happened to be) partner and was looking for the next one. There was a lot of scandal, a lot of people pointing fingers at one another and screaming, and all of it seemed to completely miss the fact that high school students have been doing all of these things for generations and will almost certainly continue doing them regardless of whether or not bands of silicone-rubber gel are available to signal their intentions or keep score. It does seem a bit surreal, though, that someone has apparently created a product for young adults that does exactly what those long-vanished gel bands were alleged to do…

You can pick up the original story from the Time Magazine news feed if you want to , but the basic idea is that a company calling itself MY Single World is marking a silicone wristband that is supposed to indicate that the wearer is single – and presumably, that they are looking to do something about that condition, given that they are advertising this condition to anyone who would care to look. The inventors claim that once this product achieves wide acceptance it would make Internet dating sites obsolete, eliminate the need for singles bars or speed dating events, and finally allow single people to quickly and easily form new relationships just by identifying others who have chosen to purchase the same product…

Critics of the idea point out that unless everyone in the world knows what these wristbands mean they won’t have any significance – and that this will be difficult, given the number of silicone wristband products already on the market. A much more immediate point is that a lot of people don’t especially want to go around advertising their status as available (and possibly vulnerable); we should also note that even if you do want to attract the attention of other singles you may not want the attention of every one of them, regardless of a compatible age, gender, attractiveness or other status. Conversely, many people who lacked the nerve to approach someone they find attractive for fear of being painfully rejected will not take any comfort in the fact that the object of their desire is wearing a wristband indicating that he or she wants to meet new people. That is, just because a given person is signaling a willingness to meet new people, that still does not mean that he or she wants to meet you in particular…

Personally, I thought this was the stupidest idea I had heard involving a silicone rubber wristband since the introduction of anti-bullying wristbands in the UK (kids who wear them keep being beaten up by bullies and having their wristbands stolen, you see). It’s certainly one of the silliest concepts I’ve seen for a consumer product in a number of years now. But if experience has taught me anything, it’s that I don’t really know what the next fad is going to be, or where it is going to come from. I thought pogs, Cabbage Patch dolls and Beanie Babies were all stupid ideas when they first came out, and those all seem to have generated a fair amount of profit for somebody. The same could be said for any number of clothing, hairstyle or musical choices that have emerged over the last twenty years (all of them sold, and I wouldn’t have put money into any of them)…

So you tell me; will the MY Single Band catch on? If it does, how will the company deal with the inevitable knock-off versions? For that matter, how will the company deal with the inevitable lawsuits when somebody wearing their product is assaulted, either for rejecting the wrong person, or as a result of going home with the wrong person? I still think it’s a silly idea – but I’ve been wrong before…

Slow Learners

By now, most people in North America – if not in the Free World – have heard about United Airlines breaking guitars, outsourcing their customer service call centers to India, putting minors on the wrong airplane and similar stunts that get them mocked, flamed and reported on the evening news. Most of the errors themselves are nothing of consequence; any organization run by human is going to foul up sometimes, and even an error rate of .0001% is going to result in several dozen cases each week when the company handles several million transactions a day. And while the screw-ups have been bad for the company’s image – and therefore generally bad for business – none of them have really be catastrophic. Or at least, none of them had been until the airline lost an unaccompanied minor last month…

You can pick up the original AP story from the CBC News website if you want to, but the basic idea is that a family was sending their 10-year-old daughter from San Francisco to Traverse City, Michigan to attend summer camp. They paid the usual $99 “unaccompanied minor” fee to the airline, and in return United agreed to make sure the girl made it through the transfer at O’Hare. Unfortunately, this didn’t happen. When the girl arrived in Chicago there was no one to meet her, and no one from United seemed to know anything about the situation. She asked to use the telephone to call her parents and tell them what had happened, but the airline people told her to sit down and wait, and they would handle it. Unfortunately, none of them actually did anything…

When the child failed to turn up in Traverse City the camp called the parents, who were understandably upset by this and started trying to get some word out of United. Her mother called the company’s main customer service line, which connected her with the call center in India, where (after a twenty-minute or so wait) a representative told her that her daughter had, in fact, arrived in Traverse City. On being told this was incorrect, the call center put her on hold for another ten minutes, and then repeated the (incorrect) reply that her daughter had arrived in Traverse City as promised. Meanwhile, the girl’s father called United’s frequent flyer number (he had paid for the tickets using frequent flyer miles) and got them to connect him with a customer service representative in Chicago, who told him that the third-party company that handles unaccompanied minor services for United in Chicago had “forgotten” to pick up his daughter, and the airline had no idea where she was now…

The father asked the CSR in Chicago to go look for his daughter, but was told that the CSR was going off shift and couldn’t help. However, after appealing to the CSR as one parent to another and begging for help, the United people in Chicago were eventually able to find the missing girl and get her to Traverse City just 4 hours late. Her luggage was another matter, however; that didn’t turn up for several days. The family asked the airline to refund the unaccompanied minor fee, but could not get any response to either telephone or written enquiries until the local television station in San Francisco took an interest. Finally this week United released a statement saying they had apologized to the family and were refunding both the fee and the frequent flyer miles. There’s no word on whether a lawsuit is coming, although if there isn’t one the company and its stockholders should all give thanks to whoever looks out for transportation companies...

Now, this really wasn’t an atrocity; there is no indication that United ever actually lost the young passenger, or that she was ever in danger of anything beyond extreme boredom. It is, however, an example of business practices so bad that I can’t even think of a bad metaphor for how bad it is. I can’t imagine why anybody would use a third-party company for this service in the first place, or why the CSR in Chicago would have said they did if they don’t; I also can’t imagine why United didn’t go berserk the moment someone told them that their third-party service had “forgotten” to show up. If anything had happened to the child in our story this could have exploded into a massive lawsuit costing tens of millions to settle and even more to fight, not to mention criminal charges and a possible Federal investigation. As it stands, only the merest chance seems to have saved the company from a fatal disaster of its own making…

And I can’t speak for any of my readers (assuming I have readers), but if I own stock in this flying madhouse, I’m going to sell it before the bottom drops out…

Getting What You Paid For

A British philosopher of some renown once wrote: “You can’t always get what you want, but if you try, sometimes, you get what you need.” I’ve always felt that he had a point, at least as far as life in general is concerned, but in business the distinction is usually between what you want and what you have actually contracted to buy – and if what is specified by your contract isn’t what you want, it’s no one’s fault except your own. But what happens when you did specify what you expected, and ended up with something unacceptable anyway? For example, what if you tell your caterer that your guests include a large percentage of practicing Muslims, and therefore it is critically important that nothing on the menu include pork – and you end up with large quantities of pork anyway?

Well, before you answer that, you might want to consider a case that appeared on the Consumerist website last week, about a couple who had exactly that experience. In planning for their wedding, the bride and groom told the wedding coordinator that it was vital that nothing with pork in it be served at the reception, but in the event, almost everything on the menu did end up with the offending substances. This is a real problem when a large number of the guests are practicing Muslims, and according to the online account, this resulted in some hard feelings (and expressions of offense) from various in-laws. When the couple in our story complained (repeatedly), the facility with which they were doing business changed its story repeatedly, and then offered them 30% off on the food bill (or about 18% on the overall price of the wedding package). The organization also failed to provide replacements for the unusable food…

Now, a lot of the people who commented on the story pointed out that the couple should have written this provision into their contract, and insisted on sampling anything that was going to be on the menu well in advance of the event; they would then be able to sue without any further discussion, and might even be able to use anyone who attended the food tasting as a witness. I think we are justified in questioning how useful that would have been, however. A successful day in court will not replace a successful wedding day, nor will it mend fences with any of the family members who feel that they have been intentionally insulted by this incident. And even if it would, a contract does not quite guarantee that everything would have gone smoothly; it only ensures that the court case will be easier to try if the vendor doesn’t comply…

I felt that an ever better point that could be drawn from this story is the ways in which a contract can protect the vendor. The couple in this story seem reasonable enough, but not all people are going to be rational about their wedding preparations, and a signed contract would keep someone who didn’t specify “no pork” from suing over the inclusion of pork – or, for that matter, keep someone who didn’t specify anything about meal from suing over a minor detail of it being “wrong.” All too often in my working life I’ve seen people avoid formal agreements and written contracts because they want to “keep things casual” and “avoid bad feelings” between the parties, and wind up with a lawsuit because each party remembers the agreement differently and is therefore convinced that the other party is trying to screw them…

An American poet of an earlier period once wrote that “Good fences make good neighbors,” and while this is almost certainly correct, it’s amazing to me how even people who should know better will ignore that advice. Of course, this event is also an example in how not to handle a customer complaint – the facility is going to be sued over this, at a cost that will almost certainly exceed any profit they could possibly have made on the event. If the court approves punitive damages, this simple case of bone-headed carelessness could cost the organization dozens of times what they could possibly have made on the transaction, and that doesn’t even consider what the bad publicity and public relations may end up costing them. It also doesn’t consider the even more serious charges of racism and deliberate malfeasance which could be brought against them (serving pork to Muslims really IS a vicious cultural insult), possibly even resulting in criminal charges – but that’s a story for another day…

Who Needs Philosophy?

Sometimes I’ll come across a story in which a person or an organization is behaving in a way that I find personally repugnant – one which deeply offends the philosophy I hold on that subject, or my sense of ethics – but which is legally permissible. The fact is, you can’t legislate moral behavior, and any individual person is going to be offended by something that others in their society might find inoffensive. I don’t write about philosophy, moral or otherwise; I prefer to leave that to people who are qualified for it, and none of my degrees or experiences are in philosophy. But every once in a while I will find a story where even if the person with whom I disagree is correct (in either legal or moral terms), their position is still stupid in terms of business, management, or even logic, and therefore farcical. Such, I believe, is the case with Shorter University, and their new policy of requiring all of their employees to sign a “Personal Lifestyle Statement” rejecting homosexuality…

You can find the Atlanta Journal-Constitution story about it here if you want to, but the basic facts are simple enough. Shorter University, a Christian private university in Georgia, is requiring all of the people who work for it to sign a statement saying they reject all behavior that isn’t approved of in the Bible or by their governing board, including premarital sex, adultery, drinking or promoting the use of alcohol when there are any students watching, and homosexuality in any form. I’m not sure this is legal in the first place; there may or may not be an exemption that the school can invoke as a religious organization. But that’s a case for the courts (and possibly the legislature) to decide anyway; I’m just talking about business – and from that standpoint, this is a farce…

First, and most obvious, how does the administration expect to enforce these restrictions? I suppose if someone comes into the office and starts passing around pictures of themselves engaging in premarital sex or committing adultery you could fire them, but there are already laws about that. A much more likely scenario is that employees will go ahead and sign whatever statement the school insists on, and then continue with whatever their lifestyle was to begin with while avoiding the institution and anyone from it who is likely to report them. Unless, of course, someone within the school has a grudge against one or more of his/her co-workers and decides to denounce him or her as an adulterer (or, one supposes, a homosexual) in order to get him or her fired…

Then there’s the issue of suitability of personnel. It’s possible, of course, that an educational institution that is more concerned with the adherence of its personnel to a conservative Christian code of behavior than it is to the ability or quality of those personnel will also not care if any of its instructors are worth their weight in wet garbage, but eventually their students will – and if the university is accredited by any oversight organization in the world, it soon won’t be. It’s also worth noting that under such a policy the school would have no problems hiring violent criminals, foreign terrorists, racists, ageists, sexists, fascists, convicted felons or sex offenders – provided, of course, that they promise not to engage in adultery or same-sex relationships while employed…

I can’t comment on what is required of someone to be a good Christian fundamentalist (assuming that isn’t an oxymoron in itself), but I’ve picked up a few things about management and education over the years, and I don’t care what sort of organization you’re running or what your agenda might be. If you are selecting personnel on any basis other than merit and retaining them on any basis other than performance, you will eventually employ only those people who agree with your agenda, even if they are completely incompetent by any other possible criteria. Frankly, it’s not a strategy I should care to employ, myself…

But then, I don’t really know much about philosophy…

Bad for Whose Business?

There’s a case that has come up recently in Las Vegas where two large companies have come to an impasse, with each claiming that the other is doing it wrong and that their business will be harmed if they accept anything the other company is suggesting. Such things are hardly unusual, especially in a bad economy, but what makes this case so interesting is that the companies are arguing about whether a building should be imploded and then bulldozed because it’s not safe. Such cases are common enough between landlords and tenants, cities and residents, or even contractors and their clients; over time, even very well-constructed buildings with gradually become weak and unsafe. What makes this case unusual is that the building is brand new, and has never been occupied by anyone – and the company that owns it has already spent more than $279 million on the project…

According to the story on the Time Magazine online news feed, the MGM Resorts company had contracted with Perini Building Company to make them a new hotel and condo complex as part of the CityCenter property in Las Vegas. The resulting product was a very nice looking steel-and-glass tower – which MGM is claiming is completely unsafe because of improperly installed steel links on 15 of the 28 floors. As a result, MGM want to implode the tower and bulldoze the property so they can work on a different project for that location; they would probably also demand their money back. Perini says the building is perfectly safe, and the few actual problems it has are all easily solvable. They further claim that MGM is just unhappy that they spent nearly $280 million during a real estate bust, and is therefore trying to get out of having to pay for the work. I can’t help thinking that both companies are missing the point, at least to some degree…

First off, MGM can’t really avoid looking foolish under these circumstances. Even if they are eventually vindicated in the legal action – if it turns out that Perini really did defraud them – there’s still the matter of having invested $280 million in a large real estate project during a completely dismal time in that industry, and that they borrowed money during a time when real estate loans are not particularly favorable. If they lose the case – even on a technicality – they come off as buffoons who tried to get out of a debt they legitimately owe by attempting to defraud another company and failed. And win or lose, MGM is going to pick up a reputation for being willing to screw over a business partner if it is in their best interest to do so – which won’t keep other companies from doing business with MGM, but will make it harder for them to get what they want in their next contract…

Perini isn’t risking as much – if they are justified by the court decision, they were just the innocent builders who got taken advantage of by MGM. On the other hand, if they lose the case – even on a technicality – they’re going to have real trouble finding work in Las Vegas ever again, and it will not help them to get the kind of contract they would want in any case. It’s possible that they could have avoided the current unpleasantness by wording their contract with MGM to make such a lawsuit impossible, or that they could have worked harder on their public relations efforts to make it clear to the public that their work on the MGM project was solid, or perhaps that they could have brought in allies (government agencies, academic institutions, industry experts) to help make their case (in the media, if not actually in the courts). All I know is that win or lose, some people are going to assume that they were up to something shady, if not actually trying to pass off unsafe buildings as state of the art – and that’s going to be bad for business…

I’m not saying that I have some easy answer for this situation. It’s entirely possible that one of these parties is completely in the right, and the other is trying to scam them. But from where I’m sitting, it looks like this whole court action is bad for business: in this case, everyone’s business. I have to wonder if there wasn’t a better way to have handled the matter…

Wal-Mart on the Spot

Over the years we’ve heard a lot of stories about Wal-Mart screwing up by the numbers in human resources situations – the low pay, the lack of benefits, the attempting to take away a settlement from an employee who had been permanently disabled in order to recover the company’s insurance costs, the crappy working conditions and hours, and so on. This has sometimes contributed to the company’s public image problem, and it has definitely led some people who work there to believe that they can sue the company for anything they want, since no jury is going to side with the evil retailer over the innocent employee they’ve been screwing over. According to a story that broke last week, however, this does not appear to be the case. Whether or not this is a good thing depends on your point of view…

You can see the original story on the Herald-News site published and maintained by the Sun-Times, but the gist of it is that a former Wal-Mart employee sued the company claiming that she was wrongfully terminated on the basis of her race and her religion. The company was insisting that the former employee was fired for cause, and that neither race nor religion had anything to do with it. In last week’s ruling the court found for the company – which seems much less surprising when you realize that the incidents over which the former employee was terminated involved “screaming over” a lesbian co-worker about how God does not accept gays, they “should not be on Earth,” and the co-worker was going to hell. To make matters worse, there were five witnesses to the incident, and the company was also able to prove that the fired employee had been made aware of company policy against discrimination on the basis of sexual orientation, and that such behavior was a termination offense…

The case doesn’t really lend itself to an ethics post, since there doesn’t appear to be any “other” side to this one. Religious discrimination and harassment of other employees can not be tolerated in any workplace, and Wal-Mart had followed state and Federal law to the letter, both in enacting the policy and in communicating to the employees. In fact, if the defendant in this case had been almost any other company it would be a total non-story; the facts appear to be that the company did nothing wrong and the plaintiff (the former employee) had no case. The only explanation I can imagine for why an attorney was willing to bring this action at all, let alone why the court was willing to hear it, is that the company’s abysmal record on human resources practices made it just barely plausible that there might actually be some basis for the lawsuit. Although if Wal-Mart remains as careful and thorough as they appear to have been in this case, that reputation may begin to recede…

We were all taught the fable about not judging a book by its cover back in elementary school; those of us who study human behavior are often reminded that even individual people are rarely one homogenous structure, and most large organizations can not be, by their very nature. It’s beyond question that Wal-Mart has some incompetent managers in its hierarchy, and some fundamentalist idiots in its rank-and-file, just like any other large company that has ever existed. To assume that any specific manager within the structure must be incompetent because some of them are is asinine, however, and so is assuming that any managerial action the company takes must be a violation of state and Federal labor laws. Of course, it’s also stupid to assume that workplace behavior that would be illegal for the company is perfectly acceptable for an employee, provided that he or she is deeply religious and a member of a traditionally oppressed minority…

But that’s a post for another day…

Not Your Parent’s Middle School Experience

There were two articles that popped up last week that fit very nicely into our “Brave New Interconnected World” theme – the idea that a world in which the Internet exists isn’t just like out mid-20th Century world with new commercial, entertainment and information retrieval opportunities, but is actually an entirely new place. I could probably write a whole series of blog posts about each of these – and I will probably revisit the ethics of the situation on some future Sunday – but for the moment, let’s consider the implications of these two events in a business context. The students who appear in these stories will be joining the workforce sometime in the next decade anyway, but even if they veer off into Academia or the arts, these same problems will be coming to your industry even sooner than that – assuming they haven’t already…

First, consider the case of two middle-school students from Georgia who were suspended and one more who has already been expelled for making Facebook postings accusing some of their teachers of being pedophiles. You can pick up the original file from the local Fox affiliate if you want to, but the essence of the case is that the students are claiming to have been exercising their First Amendment Rights to complain about their teachers, while the schools are maintaining that false accusation of a felony isn’t a protected form of speech, it’s a felony in itself. Supporting the school’s position is the official Code of Conduct (signed by every one of these students and their parents) which states that spreading malicious comments such as these is forbidden and anyone doing it can be expelled without further discussion. Even if we are willing to accept that no crime has been committed here (and I wouldn’t bet MY freedom on that), the students involved are either too careless to bother reading things before they sign them or too stupid to realize that they are in violation of those rules…

Then we have the parents in the case, who are threatening to sue the school, the school board, and anyone else in range over the alleged violation of their children’s civil rights. This no only ignores the agreements they signed with the school, but also the definition of Freedom of Speech as guaranteed under the Constitution in the first place. These suits are unlikely to succeed, but the families will probably pursue them anyway, because if they can get the school or the district to admit any responsibility or wrongdoing it will help them defend themselves when the teachers sue them for slander, libel, defamation of character, pain and suffering, infliction of emotional trauma, and anything else they can think of – cases which very well could succeed. Free expression could be seen as defense against repressive school regulations, but it isn’t a defense against making statements that you know to be false that harm another person…

From a business standpoint the implications of this case are even more chilling. Granted that very few businesses have employees who are 12 years old, but people of all ages like to complain about authority figures online, and there is no reason to believe that your employees might not make use of some ill-chosen phrase in their own social networking – and if they are commenting on your customers or even on other employees you might end up getting named in the resulting legal action. Employment contracts might help shield the company from the court cases splashing onto them, if your state allows them and if the judge in your case decides to accept them, but there’s still no way you can possibly monitor everything your employees say or do on their own time…

(To be continued…)

Cheating at Solitaire

There was an interesting court ruling in the news this week: a federal appeals panel upheld a lower court ban on software that automatically plays World of Warcraft, enabling players to grind through the lower levers of character development while showering, working, sleeping, or doing their homework. On the face of it, of course, both halves of this case are absurd; the people who make software that enables customers to exchange hours of their actual life for a virtual existence are suing over software that makes it easier and more convenient for their customers to succeed in the game, and people who are spending their spare time pursuing virtual rewards are complaining because software that allows them to cheat has been outlawed by the court. But when you actually get into the facts of the case, everything rapidly becomes a lot murkier…

Consider, for example, that the software company makes money on time-based subscriptions to their online activities, which means that any software that decreases the amount of time their customers have to spend online cuts directly into their bottom line. Since an automated program can “play” the game 24 hours a day, each day of the subscription will be that much more productive, and the player will be able to spend less money while reaping the same benefits. By the same token, this type of software allows people who are willing (and able) to use it an unfair advantage over players who actually take the time to develop and grow their own characters. In many ways, it’s like the cases we’ve seen where online games allow the user to purchase success elements using real-world money rather than earning them through game play as intended. The difference in this case is, the terms and conditions of the game expressly forbid the use of software (or “bots” as they are called) that can play for you automatically…

What a lot of people fail to grasp is that the terms of service provided in an End User License are actually the terms of the contract under which you are purchasing or leasing the product, and failing to conform to those rules is a material breach of your contract. I’m not aware of Blizzard Software suing anyone over the use of bots in World of Warcraft, but from a legal standpoint this shouldn’t be any different from the civil cases regarding unlawful copies or piracy issues or any of the other software-oriented lawsuits of recent years. Or, to put it another way, these bots aren’t legally any different from a software program that would allow five hundred office workers to use one copy of MS Office (and only pay for it once), but no one would even try to argue that such a program wasn’t both breach of contract and piracy. It’s just because the application they are designed to fool is a game program – and the image of a technology geek furtively cheating on a game which is a surrogate for actual human interaction and achievement, like a man cheating at solitaire – that this case ever made it to court in the first place…

You can pick up the rest of the details off David Kravets’ “Threat Level” blog at Wired.com if you want to. I can’t really comment on the quality of the legal actions involved, or even on the DMCA, because as previously noted I don’t have a law degree or a license to give you advice on legal matters. Ultimately, the issue of what constitutes violation or misuse of a copyright will have to be decided by more qualified people than me, and I wouldn’t be at all surprised to see additional legislation as well as additional case law come into effect before all of this gets settled. For the moment, let me just suggest that if you’re going to develop World of Warcraft characters you do it the old-fashioned way, at least until a more favorable legal climate emerges. Of course, if that bothers you, there are always activities in real life you could amuse yourself with in the meanwhile…

Unwise Choices

One of my favorite truisms about management is the oft-repeated “Never second-guess the person on the ground” – meaning, don’t tell someone who was facing a crisis what they should have done; they were there and you weren’t, and while your choice might have been a better one, none of us will ever know for sure. What people seem to forget about that statement is that it refers to choices made during a crisis; split-second decisions where all the manager had to go on was judgment, or intelligence as guided by experience. If you read the news these days it’s quite easy to find decisions made in the comfort of a boardroom or executive suite days or years before the crisis actually came that show a lack of judgment so complete it’s difficult to even think of sufficiently snarky things to write about them. The recent gas pipeline explosions in San Bruno, California, are a good case in point…

As reported online by CNN here , Pacific Gas & Electric (PG&E) had planned to replace the section of pipeline that caused the explosion back in 2009, and had received $5 million in rate increases to pay for the work, but then diverted it to “higher priority work.” Instead, in 2009 they requested another $5 million in rate increases, and then awarded roughly the same amount of money to six top executives as bonuses. The watchdog agency quoted in the online article also claims that PG&E spent $62 million over their budget in 2009 for “management incentives” and an additional $60 million in re-doing gas leak surveys that had been botched the previous year. Probably the most amazing part of the case is that the pipeline in question had been built in 1948 and never replaced, and the PG&E had identified it as being one of their top 100 most likely to fail according to their own records…

Now, I could go off on a rant about the ethics of not maintaining gas pipelines in densely populated areas, gouging your customers for rate increases in order to furnish a handful of your top executives with million-dollar bonuses, or providing incentives to a management team that apparently can’t even cope with the idea that exploding pipelines that kill both your customers and your public image are bad – but there’s not much point; none of those topics really require elaboration, let alone explanation. Let me instead call to your attention the line at the end of the article, where PG&E has already agreed to set up a $100 million fund to re-build parts of San Bruno affected by the blast. There has been no word yet, but with at least 7 wrongful death suits to follow, the total cost of this fiasco will probably be two or three times that much…

Obviously, the people running PG&E knew there was a risk; just as obviously, they decided that paying large bonuses was worth running that risk. Losing that gamble has already cost them twenty times what they scooped out in bonus money, and could potentially end up being a forty-to-one or sixty-to-one loss. If any Federal, State or local prosecutor can find evidence of actual criminal negligence, there could also be trials for manslaughter or even murder (under the Depraved Indifference statute), and it would be surprising if there aren’t stockholder lawsuits (assuming PG&E has stockholders) to recover ALL of the management incentives and bonuses during the period when these asinine decisions were made. Which leads us to the obvious question: why in the world would you bet the assets, reputation and public image of your company, if not your own reputation and possible future, on something that could come back to bite you sixty-fold if you are wrong? Or, it that isn’t snarky enough, why would you take a chance with this much potential to end badly in a way that almost literally screams “Stupid Management Tricks” for a net of less than a million dollars each?

Of course, it’s possible that the people who received the wayward $5 million are not the same ones who made the choice to allocate those funds in such a manner, but it hardly matters now. The only remaining questions for the company are “What on Earth were you thinking?” And, almost as important, “What other bright ideas have you acted on lately?”

Payback

I saw a story online this week that brought back a memory of an even funnier (and nastier) story, and I thought it was time I shared it with you. The original story comes to us from the local television station in Edmund, Oklahoma; it seems that a local pharmacist got tired of a serial burglar stealing painkillers and filled up a bunch of hydrocodone bottles with M & Ms. Sure enough, the thief broke in grabbed the bottles without looking, and ran off with them. The local police still have no suspects, which suggests an inside job (or possibly a police officer doing the stealing), but I was immediately struck by the fact that the pharmacist could easily have left something worse than chocolate candy in the purloined bottles…

While I was working in the drug store, my senior pharmacist told me a story about one day a few years earlier when a man walked up to the Pharmacy counter, pointed a gun at the doc, and demanded drugs. The pharmacist, a quick-thinking man, reached under the counter and handed the man a large bottle of pills, saying “Here, take these; they will really f**k you up!” The gunman opened the bottle, dumped all of the pills into his mouth, swallowed them, and ran out of the store without another word…

By this point I was staring at the doc in disbelief. “What kind of pills were they?” I asked.

He explained that they were a kind of super-laxative – something they give patients the night before abdominal surgery, to clean them out. There was no way to overdose on them, the doc told me; if you took too much the extras would just flush out of your system along with everything else. But even on a regular dose, they worked very quickly; he usually told his customers not to take these pills unless already at home or near an available toilet…

When the police were summoned, they found the gunman two blocks from the store, holding on tight to a telephone pole and trying desperately not to foul himself – a fight which he lost when one of the police officers tapped him on the shoulder. There was some delay while they found a tarp for him to sit on, so as to avoid getting the inside of their vehicle dirty. Fortunately, the pharmacist who told me the story was more than happy to loan them one from out of his trunk…

Now, given the recent trend of people suing companies when they manage to hurt themselves doing things no sane person would ever do (see yesterday’s post), it’s probably best if the pharmacist in Edmund doesn’t use this tactic; staking out the pharmacy and catching the thief in the act would leave him open to less legal liability, and installing a hidden camera would probably be safer. Still, I can’t help thinking that whoever the serial thief is, he’s pushing his luck – for all we know, the injured pharmacist might be reading this very post right now…

Personal Responsibility?

I noted with great interest this week the story in the New York Post about a woman who is suing Starbuck’s because they served her a cup of hot tea, which she then dropped on her infant son. The woman’s attorney is claiming that the company was negligent because it should have been served in a cup with an insulated sleeve and stuck in one of those brown cardboard trays that make it impossible to get the cup out of without splashing your beverage across the ceiling of whatever room you are in. It does raise an interesting question about product safety laws; unfortunately, it also raises a few questions about consumer intelligence and personal responsibility…

It’s the second case this year where the plaintiff is claiming to have been injured because a cup of tea was too hot; you can read about an earlier case in New York off of the Reuters website if you’d like to. Now, if all of this sounds familiar, it’s probably because of the well-travelled legend about Stella Liebeck the woman supposedly awarded millions of dollars (some versions of the story put the final award at $18 million or more) after she was scalded by a cup of McDonald’s coffee. But the facts of that case don’t really match the urban legend – Stella attempted to settle with McDonald’s for the cost of her medical treatment ($20,000 – not very much even in 1994 dollars), the jury eventually ruled her 20% to blame for the accident, there had been over 700 similar cases in the previous 10 years (that’s right; over 70 times a year!) and the courts were frankly sick of McDonald’s claiming that they weren’t doing anything wrong. Most importantly, perhaps, the product liability cited in the case was the cup (which could easily pop open and douse the user), not the temperature of the liquid itself…

In the Starbuck’s cases, there’s no question of the containers being faulty; both plaintiffs only came to grief after dropping their cups, not having them pop open. There’s also no real question about the temperature of the beverage; tea is customarily made from boiling water (in order to get the leaves to steep properly) and anyone who drinks tea should already know that. The real question in both of these cases is whether the Starbuck’s people should have known to put insulators on the cups before the customer could pick up the beverage and burn him- or herself, or if the customer should have known better than to pick up a paper cup full of scalding hot liquid in the first place. And, in the more recent lawsuit, whether any reasonably sane person would be holding a cup of scalding liquid over a five-month-old infant in the first place…

Now, personally, I’ve had to get an insulator before picking up a cup of hot liquid; I’ve even had to reach over a counter to get one. And I’ve never been dim enough to hold boiling-hot beverages over a baby (what if you slip, or trip?). More to the point, perhaps, I can usually figure out that a cup of hot beverage is going to be, you know, HOT before I touch it – even if the cup doesn’t have “Warning: The beverage you are about to enjoy is quite hot!” written on it the way all Starbuck’s cups do. In the long run, the juries in both cases are going to have to decide where the company’s responsibility to produce a product that no customer can possibly hurt anyone with ends, and where the customer’s personal responsibility begins. All I can say is it’s probably a good thing that I’m not on either of those panels…

The Ethics of Shoplifting

Some time ago in this space, I did an ethics post on pilferage, and how this actually hurts everybody who does business with the pilfered company much more than it does the business itself. I’ve also had a few choice comments in this space about personal responsibility, and how there are times when suing someone over matters of strict liability is more complicated than people seem to think it is. I hadn’t expected, however, that both threads would be picked up in a single news story…

There’s a case out of Honolulu being reported by Fox News online about a man who died after allegedly taking two 12-packs of beer out of a hotel convenience store without paying for them, was confronted by the store manager and another hotel patrol about the theft, initiated a fight with the store owner, and subsequently died of injuries sustained during the confrontation. Because this is a Fox case the linked story is leaving out the fact that the man actually died of mechanical asphyxia after the convenience store manager and the other hotel guest sat on his back while waiting for the police to arrive, which complicates matters a bit, but I think the ethical questions are essentially the same whether we give the original story a pro-business/anti-crime slant or not – at least, once we realize that the shoplifter’s wife is now suing for wrongful death…

On the one hand, the dead man was committing a crime; if the facts of the case as stated are accurate, we can easily conclude that if he’d just paid for the beer instead of trying to steal it, he would still be alive. We can also attack the shoplifter on moral grounds, in that his theft wasn’t motivated by the necessity of feeding his family or any other worthwhile enterprise; the man in question was on vacation from California and was just trying to save money on his vacation expenses. The loss of merchandise would certainly have impacted the livelihood of the store owner, and might easily have driven up the price of everything in the store for everyone else who shops there. But even if all of this is true, it’s still difficult to ethically defend the practice of killing someone over misdemeanor theft, in this case for less than $50 worth of merchandise. Stealing beer may be a heinous offense, but it’s still difficult to support making it a capital one…

On the other side of the case, the shoplifter’s wife most certainly has been deprived of his companionship and income (California is a community-property state; therefore his income is also hers) without due process or compensation, and it would be impossible to argue that the store manager and his companion had any right to take the shoplifter’s life. It seems unlikely that they meant to do so, and even more unlikely that you’d be able to convince an jury to convict them of murder (negligent homicide will be hard enough to prosecute), but negligence seems fairly straightforward in this case. If you don’t know how to safely apprehend someone you shouldn’t try; and if you kill them in the process you are, in fact, being negligent. But by the same token, all the manager and his companion were trying to do was their civic duty (e.g. preventing a criminal from escaping the police). Many people would criticize them for ducking that obligation, although it isn’t usually considered a crime to do so…

In fact, there are actually two ethical questions here. First, should the widow of the shoplifter be compensated because the two men in our story killed him for a trivial offense, and if so, should the chain of convenience stores and the resort in which the store was located share responsibility for the award? And second, should the killers be sent to prison for attempting to stop a tourist from stealing from the store?

It’s worth thinking about…

Pay Attention, Already!

I am sometimes amazed at the attitude taken by people who have no familiarity with business toward legal proceedings. It resembles nothing so much, in my opinion, as the way a barbarian hero from a swords-and-sorcery epic regards magic: as a malevolent, incomprehensible force that can’t be fought against, can’t be reasoned with, can only be avoided or perhaps occasionally bribed to leave you alone. For reasons that escape me, people who would never consider telling a plumber how to install pipes or a carpenter how to drive a nail will feel no compunctions whatsoever in calling for the most preposterous changes in our legal system – and people who will bravely face down accountants, evangelists, or even dentists will take to their heels at the suggestion of a possible lawsuit…

Even worse, I suppose, would be those people who for some reason believe that if you ignore spurious lawsuits they’ll just go away. There’s a reason why most large corporations keep a few lawyers around, and there’s a story out of Wisconsin this week that demonstrates the principle better than most. A story reported by Milwaukee Journal Sentinel online tells of a $1.26 billion award granted to two men who sued PepsiCo, claiming that the soft-drink giant stole their idea for a revolutionary new product: bottled water. According to the online article, the plaintiffs claim to have a signed agreement from thirty or so years ago regarding their ideas for selling a purified water product, which they claim PepsiCo violated by producing the “Aquafina” product for sale. Without examining the facts of the case more closely we can’t really say if this claim was supported or not, but the award was a default judgment, given because PepsiCo failed to show up in court…

Now, according to the company there were “internal process issues” involved; specifically, a secretary in the company’s legal department failed to log correspondence on the case or tell anyone that a key letter had been received. It’s difficult to imagine that this was the only correspondence PepsiCo received about the case, however, or that they routinely allow billion-dollar cases to be “misplaced” by a single clerical employee. What seems more likely is that the company mistook this action for a simple “nuisance” lawsuit (of which any large corporation receives hundreds every year) and failed to pay proper attention to the case, even after it had cleared preliminary hearings and had been assigned a court date. Unfortunately, one of the ways you can tell that a legal action is for real (and not just a nuisance) is when it isn’t immediately laughed out of court and is given a spot on the calendar…

PepsiCo is trying to get the award rescinded, claiming that they haven’t had due process and that the confidentiality agreements on which the plaintiffs have based their case have nothing to do with Aquafina in the first place, but this will not be easy for them, both because they failed to show up for the trial and also because of the claims of internal process issues, which sound remarkably like “the dog ate my homework.” Even if everything PepsiCo is presenting is absolutely true, their initial actions (or lack of actions) were at best bungling (which undermines their credibility) and at worst highly disrespectful of the court (which is not a good way to plead your case). A court case in which the plaintiffs claim to have signed documents which prove that you are in material breach of an agreement made years ago does not fall into the same category as lawsuits in which someone is claiming that your bottling plant is secretly being used to send military secrets to space aliens in Belgium, and should not be treated with the same disdain…

Of course, if PepsiCo were playing attention to their official legal correspondence, they would already know that…

The Ethics of Paternalism

Going over my notes last week, I ran across an interesting question regarding the ethical responsibility a company has to its employees. It seems there was a case (which eventually reached the U.S. Supreme Court) in which a company that manufactured batteries of various kinds had systematically avoided hiring women for certain positions that involved a significant chance of exposure to lead. The company’s thinking was that since lead exposure can lead to birth defects, they would simply keep anyone who was (or could conceivably become) pregnant away from their manufacturing stations that used lead. We should note that the positions in question were not highly-paid or especially desirable, nor would experience in any of them result in promotion or any other form of career advancement. One could in fact argue that the only special treatment associated with these jobs was who would be hired to fill them…

As you might imagine, when this situation was finally made public a huge firestorm of protest broke out. The company’s defense – that they were acting in the best interests of their employees, to keep anyone from having to choose between their job and their future children – did not placate any of the parties responsible. Several of the company’s opponents roundly condemned this position, in fact, pointing out that men can also suffer significant health consequences from lead exposure, and that assuming that a female applicant wanted children (or was even capable of having them) constituted both gender discrimination and massive condescension on the part of the company. Although the company’s motives may have been well-intentioned, the paternalism it displayed was intolerable – and also illegal…

Now, you might think that I’m dredging this case up from the mists of time; that all of this happened before women were commonly accepted in the workforce, maybe even before they received the right to vote. If so, I regret to inform you that these events are less than 20 years old as of this writing; the Supreme Court decision was handed down while I was in business school in the early 1990s. But while it’s doubtful that anyone would attempt to institute this specific policy today, echoes of the situation described live on; people are still more likely to assign hazardous duty to men than women; single people are more likely to sent into harm’s way than those who would leave a widowed spouse and bereft children; women are still barred from most combat position in our military, and so on. Which to me begs the question: to what extent, if any, should an employer place the welfare of its people ahead of their legal right to die (or be genetically damaged) in unpleasant ways while on the job?

Obviously, there are OSHA regulations and similar laws that attempt to keep everyone safe on the job. And even more obviously, this is a very slippery slope indeed; the line between keeping women off a specific job category because they might get hurt and keeping them off any specific job because you’re a bigot and you don’t believe they can do that job as well as a man could is so fine I can’t imagine how to measure it. In theory, all work assignments should be made regardless of the applicant’s personal characteristics, on merit alone – but does that mean that an employer has no special responsibility for any of its employees? That if one of their people wants to do something with potentially harmful long-term effects, the company should just ignore the possible repercussions and let them go on ahead? Does our responsibility as managers to treat all of our people as even-handedly as possible supersede our very human desire to protect our people from harm?

It’s worth thinking about…

There Ought To Be A Law

I try not to be one of those people who goes around demanding legislative action to correct every unfortunate event he sees on the news; by and large, there are laws on the books that already address most of these situations, and either there isn’t enough enforcement/prosecution, or people are much stupider than was believed at the time the law was passed. The best legal minds I have ever known will all tell you that laws passed to correct a single event are almost always a bad idea – and will generally serve only to make a bad situation worse. But I have to admit that I’m almost ready to make an exception for a case I saw the other day…

A story being reported on ABC News Online this week tells the story of a family whose toddler crawled out a doggie door and drowned in their pool, who are outraged that the doggie door was sold without a warning that small children can egress through such an opening, and are suing the manufacturer. In this particular case, I don’t know if Florida has a law requiring that swimming pools be fenced in to prevent accidents of this kind (not all states do), and I don’t actually know if state laws governing child endangerment would apply, but I’d like to suggest a law criminalizing lawsuits of this type. That is, if a jury of your peers decides that you are only filing suit to deflect blame or attention away from the fact that you are apparently too stupid to realize that (A) small children will crawl through ANY small opening they find and (B) that a doggie door IS a door leading to the outside, you deserve some form of legal sanction…

Now, I’m sure some of you are going to get upset with me for blaming the family in this case, since they are the ones to have suffered the loss. So let me be very clear: I am not urging the local authorities to charge the child’s caregivers with felony endangerment or any other crime on the basis of the original event. I just feel that suing the manufacturer of the doggie door is the worst form of frivolous lawsuit, especially since there is no indication whatsoever that a warning label would have made any difference to the events of this case. The child’s mother is on record as stating that she didn’t believe there was any chance he could fit through such a small opening, and would doubtless have ignored the warning label (if there had been one) for the same reason. It’s only because a check of the records indicates that this happens a few times each year that somebody got the bright idea of bringing suit in the first place…

The fact is that if you fail to take any safety precautions to prevent drowning accidents in your pool and then also fail to keep a close eye on your young children – an unfortunate combination of events that happens every year in America – then it is not the fault of the people who manufacture the windows, doors, screen doors, crawlspaces, basements, doggie doors or cat flaps the children escaped out of that a tragic event ensued. I’m not saying that the event wasn’t a horrible tragedy; I’m saying that blaming somebody else for your poor judgment is a complete abdication of personal responsibility no matter how tragic the results happen to be, and suing them is at best an attempt to deflect the blame for your own failure and at worst an attempt to profit from your own stupidity by filing a “deep-pockets” lawsuit…

And there ought to be a law against those things…

Pirates vs. Lawyers

Okay, I know the ongoing Internet meme is “Pirates vs. Ninjas,” but the fact is that if there are any ninjas running around in the 21st Century you’re really not likely to find out anything of substance about them in a business blog. Pirates versus lawyers, however, was probably inevitable from the moment an American-flagged vessel was taken and any member of the crew subjected to any inconvenience, let alone harm…

To the surprise of, apparently, absolutely no one, a member of the crew from the Maersk Alabama is suing both the shipping line and the company that provided the crew for subjecting him to an unsafe work environment, not having armed security aboard, not sending the ship on a safer route to its destination, and so on. I call it to your attention not to mock either the companies or the crew, but to point out that this is another one of those cases that is more complicated than it looks…

On the one hand, pirate attacks off the Horn of Africa are not exactly a new occurrence. In fact, the Alabama herself was attacked on at least two prior occasions on the same voyage before the pirates managed to board her successfully. This has prompted several nations to being regular anti-piracy patrols through that part of the shipping lanes, and some companies (notably the Italian cruise line mentioned a few posts ago) to start putting armed security guards aboard their ships. So it’s no stretch to imagine that both companies already knew the situation was a hazard and did nothing about it because of cost considerations. On the other hand, the fact that the crew had been holding safety meetings “every month for the last three years” (according to the crewman bringing the lawsuit) to discuss the situation suggests that they already knew they were going into harm’s way…

So who’s right here? Should the company have made greater efforts to protect the crew of the Alabama before they sent her back into pirate-infested waters? Should the crew have realized that the company was sending them into harm’s way and either demanded hazard pay or just quit and gotten safer jobs? Do we criticize the companies for trying to make more money by not going around the Somali coast and/or paying for armed guards, or do we call the crew on knowing the job was risky and then complaining when the risks actually came home to roost? More to the point, what would you do if it was your company – or a job that you otherwise liked and wanted to keep?

It sounds like some poor jury in Texas is in for a rough time of it. Personally, I’m just grateful that the closest we have to either pirates or lawyers on my current gig is the Law School across the street. And if there are any ninjas lurking around the Upper Midwest these days, I really don’t want to know about them…

Workplace Security

Considering all of the uproar surrounding we heard least year regarding employees bringing guns to work and then defending their workplace from armed attacks (and how horrible and unsafe this is), I noted with great interest an article being reported by The Daily Mail Online about a robbery gone bad in Paris last week. It seems that two men attempted to rob a sushi restaurant, and when the owners refused to hand over the money in the cash register, the criminals attempted to make off with the tip money that had been left for the waiters and sushi chefs. Unfortunately, the hapless thieves appear to have forgotten one important point about how sushi is made…

According to the story, seven of the employees became incensed that someone was stealing from them and attacked the robbers with the extremely sharp sushi knives that all such personnel just happen to be experts in using. One of the thieves received a fatal stab wound, and the other was badly slashed up before the police arrived to arrest all seven of the waiters who had been defending their money. The story doesn’t mention what became of the surviving robber, or what the waiters were being charged with, but it does suggest that they have some different ideas about the use of force, and what levels of force are permissible, in France than what we enjoy in this country…

Now, I’m not qualified to practice law in this or any other state, and I don’t propose to comment on the legality of these actions; I’m just going to comment that in America there would be a completely different set of complications in play. For one thing, most companies have a standing policy of not offering resistance to armed criminals, even if that is the way the 9/11 attacks were transformed from simple hijackings to major outrages featuring the deaths of thousands of people. A lot of firms would fire the waiters just for resisting the robbery, and many others would be worried (correctly, I believe) about the possibilities of being sued by the waiters (for maintaining an unsafe work environment) and the family of the dead robber (for wrongful death, although that one would be harder to win)…

Personally, I can’t help wishing that the flights hijacked on 9/11 had been equipped with an in-flight sushi service, and that these same waiters had greeted the hijackers with a flurry of razor-sharp steel. I’m not sure what the reward for attempting to kill yourself in a suicide attack and instead being turned into a decorative rose garnish on the side of a sushi presentation is supposed to be, but I’d be willing to bet it’s something less than 72 virgins. And I can’t speak for anyone else, but if an airplane I’m flying in is saved from murderous idiots by heroic sushi chefs, not only am I going to open my wallet and tip the chefs with ever dollar I have on my person, I’m also going to book a lot more flights on that airline…

I kid, of course, but that doesn’t change the underlying point of this story: sometimes offering no resistance isn’t the best choice; sometimes an employee with the right combination of experience, training and equipment really can safely resolve a situation without blindly following the manual; and no matter what, you should never second-guess the man on the ground…

Especially when the man on the ground is carrying a razor-sharp sushi knife…