Wednesday, January 21, 2009

Who should respond to questions about an employee's health?

The whole Steve Jobs/Apple thingie has raised interesting questions about key employee privacy, and whether an employer or the key employee is responsible for providing information about health to the public.

I've talked about Jobs and Apple before; see my posts from 1/5, 1/7, 1/14, and 1/16. The whole episode has now caused someone to initiate an action within the U.S. Securities and Exchange Commission (SEC). Silicon Alley Insider links to a Bloomberg article:

Apple Inc. faces a government review of its disclosures about Chief Executive Officer Steve Jobs’s health problems to ensure investors weren’t misled, a person familiar with the matter said.

The Securities and Exchange Commission’s review doesn’t mean investigators have seen evidence of wrongdoing, the person said, declining to be identified because the inquiry isn’t public.

So what is the potential nature of the review? Bloomberg reviews the disclosures that were made:

The company’s stock whipsawed this month after Jobs, who battled pancreatic cancer in 2004, said he would remain CEO while seeking a “relatively simple” treatment for a nutritional ailment. Nine days later, Jobs said he would take a five-month medical leave after learning his health issues were “more complex.”

“The good news flipped by the bad news makes one wonder what Apple knew,” said James Cox, a law professor at Duke University in Durham, North Carolina....

To bring any case, the SEC would probably have to show the company tried to benefit by withholding information about an unambiguous diagnosis, said Peter Henning, a former federal prosecutor and SEC lawyer who now teaches at Wayne State University Law School in Detroit.

From the information that we have, it's unclear whether the SEC is only investigating the information that Apple did provide, or is also looking at the information that Apple didn't provide.

Regardless, the issue in general has prompted a couple of FriendFeed threads that have touched on the issue of employee privacy. The most extensive thread is the one that Kevin Fox started last Friday. In this thread, Fox and other FriendFeed users such as Alex Scoble have discussed the corporate obligations, if any, to disclose health issues regarding key employees. Here's a sampling of the discussion:

Medical privacy is our strongest privacy. (Kevin Fox)

Investors have a right to know the health of top execs and other key personnel in a company that they are investing in. When someone takes a position like that, they have no reasonable expectation to privacy in matters that can affect shareholder's investments. (Alex Scoble)

Without knowing about this thread, I started a different thread based upon the Silicon Alley Insider post about the SEC review. Scoble and Fox joined that conversation also, and Kevin Fox made an interesting observation. In response to a statement I made about how Apple could answer the question "Is Steve healthy?" Fox replied:

I think the best answer to the question "Is Steve healthy?" would be "We respect the privacy of all our employees. If you have questions about an employee's health you should direct those questions to the employees personally, though we encourage you to respect their right to privacy as well."

This response interested me, for a couple of reasons:

  • While corporations usually like to control statements about themselves, Fox's formulation means that the health of a key employee (or any employee) is specifically outside of the area of interest of the corporation.

  • It also means that employees, who are usually insulated from the press by a corporation's communications organization, now become responsible for their own communications.
In the FriendFeed thread I cited a theoretical extreme example of how this could be applied.

In the theoretical extreme, reporters could ask every worker entering an auto plant if they have a hangover.

Yes, it's an extreme example, but often the outliers help to illustrate potential ramifications of this proposed policy, both for the employee and for the corporation. On the one hand, the so-called unwashed masses may be inexperienced in dealing with the press, and may respond, "Yeah, I have a hangover, but I just smoked a couple of joints before I got here. Let's build some cars, man!" On the other hand, the corporation, who decided that they didn't want to breach their employees' privacy, suddenly discovers that they are faced with something that IS a corporate issue.

My argument throughout this is that if a key employee is engaged in day-to-day operations, and is unable to perform his/her day-to-day duties, then that is a material issue that should be disclosed. (Therefore, when Jobs was actively engaged in Apple day-to-day issues, his health was an issue; now that he has taken a leave of absence, it is not.)

Then again, why not take my formulation to its theoretical extreme? Let's say that Kevin Fox and Alex Scoble are the co-leaders of a pop band called the FriendFeeders, and that they had a scheduled gig in San Francisco on January 20. They're late to the gig, and the press asks why. Rather than insisting that this is a private matter, Kevin Fox concludes that the late arrival to the gig is a material issue, and he replies, "Well, we would have been on time, but Alex insisted on finishing a game of Fallout 3, which made us late."

Unfortunately, let's say that the FriendFeeders' gig was sponsored by EA, a competitor to Bethesda Softworks (publisher of Fallout 3). The EA rep, angry at the mention of a competitor's product, refuses to book the FriendFeeders ever again. Eventually the band is reduced to performing at kids' birthday parties...all because Rose [WHOOPS, "FOX"] was forced to disclose something that should have been kept private.

OK, so we've explored the outliers, and I've personally concluded that extremism in the defense of a blog topic is no virtue. (Yeah, I stole that from my boy Barry.)

So I'll ask you:

Should questions about a key corporate employee's health be directed to the corporation, or to the employee?

SUBSEQUENT POSTSCRIPT: So I wrote this whole dang thing, and then read something else on FriendFeed:

I'm honored that you confused me with Kevin Rose in that post. :-) - Kevin Fox

Yes, at one point I did type "Rose" instead of "Fox." I've corrected it.

Perhaps before I post this, I'd better scan the post for the word "Robert"...

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