Are drug company reps "salespeople" for the purposes of labor laws?

This Supreme Court decision is a great example for us to discuss this morning because it (should) make us think about a very nuanced difference in the letter and spirit of the law. 

The basics of the decision is whether drug company external representatives, who are hired and trained for their sales ability, should be considered salespeople under labor law, even though they don’t formally make sales in the traditional sense.  The case revolves around overtime pay.  Traditional salespeople are usually eligible for extra commissions to compensate for their extra time, so the law doesn’t need to guarantee them overtime pay.  Not all salespeople are on commission, but they have enough power to negotiate for it so the law leaves them on their own. Right or wrong, that is the old law that this case revolves around. In contrast, people on pure salary might need some protection from abusive bosses who make them work after hours for no compensation.  

What these drug reps do is a new form of selling that was not envisioned when the labor laws were first created.  They convince the doctors to prescribe the drugs in the future.  But of course doctors need to have a patient on the table when making each individual prescribing decision so there is no formal contract with the salesperson. 

According to the letter of the law, this is not a “sale”. No documents are signed.  No money changes hands.  But what was the law’s spirit?  It was addressed at people who spend their time on the road making sales pitches to potential customers.  They can negotiate for commission based pay even if they don’t actually get any. 

These drug reps can’t get direct commissions because of the limitations I stated above.  Doctors can’t make any final decisions at that time, and it is usually the patient (or his/her insurance) that is paying the bill.  But here is where I agree with the 5 Justices who decided they are still salespeople.  Drug companies have incredibly sophisticated analytics that can model with pretty good accuracy if doctors’ volume of prescribing particular drugs goes up or down and when the change occurs.  So they can see if the rep made a difference.  The reps can negotiate to have commission based incentives based on this just as easily as traditional salespeople can negotiate with traditional sales. 

Personally, I think there are a lot of ethical questions in the whole practice of hardselling doctors on name brand drugs with high profit margins and questionable efficacy compared to cheaper generics, alternative therapies, and even placebos.  But those are topics for other days.  For the narrow question of whether these sales reps are similar to traditional salespeople for the purposes of these labor laws, I think it is a clear yes.

Unless there is something I am missing.  Please educate me in the comments.

Disappearing Ink

This is a horrible development for open democracy, but as a clever innovation it is worth thinking about.  News out of Egypt is that supporters of one candidate (name undisclosed to keep politics out of this discussion) handed different kinds of pens to different voters.  If the voting booth attendant thought a voter was going to vote for the attendant's preferred candidate, the voter was given a real pen.  If the attendant thought the voter was going to vote for another candidate, the voter was given a pen with disappearing ink, so the vote wouldn't count.

There are a few performance issues for this innovation that make this harder than it seems at first glance.

1.  First, you need the booth attendant to be reliable.  If even one of them either intentionally (double agent or feels guilty) or unintentionally (over a beer, bragging to friends about his cleverness) reveals the plan you are done for.  This isn't the kind of thing that wouldn't spread pretty quickly.

2.  Then you need the pen exteriors to be so similar that the voter can't tell they are getting a different pen than other voters.  But the attendant needs to be able to tell the difference.  Kind of like using marked cards in poker, it needs to be subtle.

3.  Next, you need the attendant to be able to tell who is planning to vote for which candidate.  This doesn't have to be 100%, but it has to be reliable enough to impact the final vote count.  If they are wearing a big pin on their shirt or chanting slogans then it is easy.  But can you tell through demographics?  And how much training would the attendant need?  You are not going to get the nation's keenest observers to be voting booth attendants across the country. 

4. If you don't want any voters to notice, the ink has to last longer than any of them sticks around in the voting booth.  This is a behavioral question. Most people leave quickly, but someone who is confused might not.  Or maybe someone who is physically infirm might need a few minutes to rest.  What are all the other use cases for sticking around?

5. And then if you don't want any of the counters to notice, the ink has to disappear faster than the quickest path from voting booth to counting station.  This is more of a process mapping problem.  What is the path?  Do completed ballots go to counting stations only at the end of the day?  Or at periodic intervals such as when the ballot boxes fill up?  Even if you know the official policy, are there in-the-field exceptions you have to worry about?

6. Finally, you have to figure out how to make ink that reliably fits this window. Even one screw up could get you caught.  So you need to find an ink formulation that has real Six Sigma performance in terms of accuracy and precision. 

Well, they got caught so one of these things failed.  But it might have lasted long enough to have worked.  We may never know.

Absolutes in Strategy

I read a great editorial by Dave Johnson in the June issue of Industrial Safety and Hygiene News (a publication I submit trade articles to a few times a year).  The editorial focuses on what happens when companies have explicit goals with a zero in them.  Zero injuries.  Zero defects.  Zero customer complaints.  

The problem with these absolute goals is that when employees are under the gun to achieve perfection, it increases anxiety and stress to levels that can hurt performance on all dimensions, not just the one that is supposed to be zero.  The pressure is extra high for a zero goal because you could have perfect performance for 89 days and then on the last day of the quarter some random event that you have no control over keeps you from achieving your goal. There goes your positive evaluation, your chance of promotion, or your merit raise.  This kind of pressure can focus attention so narrowly that other things slip by.

Another problem with absolute goals is that they are often great long term objectives but unrealistic in the short term.  A new CEO takes over a company with a really high frequency of customer complaints and wants to shake things up.  So she implements a new goal of zero.  But there is no way anyone will hit this number right away when the history is so bad.  It just takes time to change the processes, the mentality, and the company brand in the customers’ eyes.  So the immediate goals need to be more attainable.  When there is no chance of making a goal, employees often don’t even bother to try.  In this case, you never get to zero.  Or, employees will cover up defects and injuries or fudge the numbers.  Injuries become “visits to first aid for a bandage” so they don’t count.  The untreated injury gets worse and more expensive to treat later. 

Instead, he suggests something like this for  a high level strategic goal “We are striving for zero because this company is striving to be world class, best in class, in all facets of the business.  We will give you the tools, the training, the support and the freedom to come up with your own ideas to reach zero injuries, zero customer complaints, zero product defects, zero downtime.  If we don’t get there, we’re going to get damn close enough to make an unmistakable positive difference for you personally and for the business.”

And then in the actual Performance Management System (some of my previous ideas on these here) be realistic and use best practices for goal setting.  Then you get the best of both worlds.

What makes a game work?

Back to some Jane McGonigal topics.  I found my book.  (If you missed the first two posts: Intro  and Starting Points)

What makes a game work?  What isn’t necessary but makes a game better? 

In an attempt to boil down the whole book into a few key points, I tried to tease out what she considers the essential components for a game to work - as well as the attributes that aren’t necessary but make it more effective.  This is the list I came up with.

Games have to have:

• A goal: The goal is the outcome that players work to achieve.  It orients participation and provides a sense of purpose that gets players involved. 
• Rules: Rules are limitations on behavior  that constrain easy answers and push creativity and strategic thinking.  If the game is too easy, it wouldn’t be much fun.  If it has no rules, there is no sense of “playing.”
• Feedback: Feedback tells players that they are on track, how far they have to go, and motivates continued activity. Without feedback, players would get bored and lost pretty quickly.  It needs to be clear (or include a kind of designed-in ambiguity that I will try to get to in a future post).  Fast feedback is usually best, but this is relative to the pace of the game. If you only make one move per day, then there is no need to get feedback in 5 minutes.  The feedback also has to be aligned with the games purpose and rules. If you did something wrong, what rule did you break?  If you earned points, what goal did you make progress on?  
• Voluntary participation: Players have to knowingly and willingly accept the goal, rules, and feedback of the game.  Otherwise, it is called work. Voluntariness makes it fun (not work) safe (because you can quit if it isn’t fun) and more motivating (because we like fun stuff).
• Hope of success: You don’t have to win every time, but you have to feel like you at least CAN win, perhaps when you get better at the game.  Games are no fun if they are too hard to win or if the competition is too good.  Repeated failure is OK if the player can rationalize that they are getting better and might win later.

 Games are better when they have:

• Voluntary obstacles:  This calibrates the game’s difficulty.  If it gets too easy, you can make it harder by adding an extra obstacle.  If the game is mismatched between players, one player can add an obstacle that the others don’t have (I’ll play with one hand).  Games can be designed so that this isn’t necessary, but it covers you for situations where play is unexpectedly uneven.
• Intrinsic rewards:  Some games are fun even if they are just mindless (word search).  But they are even better when you feel a sense of accomplishment, self-worth, and that kind of thing.
• Evolving: Games can get stale when they are always the same.  If you were stuck on level one of Angry Birds, pretty soon you would win every time with a maximum score and there wouldn’t be much reason to keep playing.  But if each level is different/harder/new challenges/etc then you don’t get bored or plateau on your performance level.
• Fiero: This is a term she uses to refer to the competitive aspect of the game.  It doesn’t have to be competitive against another player.  How many times have you yelled at the dead troll in the fantasy game or the computer opponent in single player chess?  But it is even better when there is a real person.  We instinctively like to trash talk.  Whooping it up and high fiving a teammate. 
• Ambient sociability: This is when you have a player community where players can share strategies, scores, successes with other people they may never have met but who are linked because they also enjoy the game.  The Web has created orders of magnitude more opportunity for this attribute.
• Social connectivity: This is when you are playing along with someone you were already connected with outside the game.  You can be proud of your friend’s success, even if it was against you.  The stronger the external bond, the more of this you get by playing together.

There are also some things that we often associate with games, but she says are not necessary:

• Competition: there are lots of games like puzzles that you play alone.  There are also lots of social games now where every player is on the same team and the goal is to achieve something together.
• Extrinsic rewards: Many games have points, win/loss records, and other tangible records of your play.  But this is not necessary to make a game fun or successful.
• Interactivity: Again, there are lots of games you can play alone that are still fun.

 I will try to pick out key points about what makes games work, either getting into more detail, investigating why these attributes are important (or disagreeing perhaps), and discussing examples that illustrate something interesting.

Also, I want to think about if these attributes are similar with gamification rather than game design.  My instinct is that many of them should still be relevant, but probably not all of them and/or not in the same way.

Empirical Science Versus Logic

This is a great debate going on in archeology.  OK, maybe that is a sentence you don't hear every day.  But I bring it up today because it pits a logical argument against an empirical argument that are in direct contrast.

In one corner is the empirical science.  Apparently, cave paintings in Spain that we thought were 30,000 years old are really 40,000 years old - according to a new advance in carbon dating.  Carbon dating is one of those hard sciences that makes us feel really confident.  People can lie, but molecules??

The problem is that there were no modern humans around 40,000 years ago.  There were plenty of Neanderthals around, but that is where the logicians come in.  Neanderthals had been around for 300,000 years already.  What would make them all of a sudden decide to paint caves?  So logically, the paintings must have been done by humans who were new on the scene.  It would make logical sense for a new species, especially one with a brain structure that fits the practice of cave painting, to be the ones who painting the Spanish caves.

So who is right?  Are the paintings 40,000 years old and done by Neanderthals - as determined by the science of carbon dating?  Or are they 30,000 years old and done by humans - as determined by logic?

Liquiglide

Liquiglide is the innovation of the day for many reasons.  They competed in this year's MIT entrepreneurship competition, winning the crowd favorite award but not the cash prize from the official judges. 

So what is it?  If is a coating that you can put inside a bottle to make the contents come out easier, faster, and more completely.  No more "anticipation" for your Heinz. 

I love this innovation for three reasons. The UX advocate in me loves that it is not a whiz bang bell and whistle add-on.  It is a great example of a ubiquitous innovation.  The user shouldn't even know it is there - it just makes many of his/her other products work better.

Second, it is green in the most common sense.  It is made out of plant-based compounds.  No increased reliance on petrochemicals.  No hazardous waste - even at the factory.

Third, it is green in the more overriding sense.  Do you know how much ketchup, mayo, shampoo, hand lotion etc etc etc is thrown away every year because it is stuck in the bottom of a bottle?  So Liquiglide also reduces the need to make more of all of this stuff by 5-10% across the board.  This is both environmentally incredible and money saving for pretty much every consumer out there.  We all buy tons of these kinds of bottles. 

So it saves money, reduces food waste and health and beauty product waste, reduces petrochemical use, is environmentally friendly itself . . .

Futarchy

I just came across a great article by Robin Hanson over at George Mason – which as you know is one of my favorite sources of behavioral economics wisdom – from back in August 2000 (Still good after 12 years!!  The very definition of a thought leader!).  I am also a big fan of Robin’s blog Overcoming Bias. 

The motivation for even considering this idea is that the typical citizen/voter/American is good at understanding and articulating his or her basic values.  But not nearly as good at understanding the complexities of policy design and development.  I have posted on this at length (for example).  So we need to separate these two if we want government to get anything done.  Have voters select their candidates based on core values, but create some other mechanism to design the policies.  In his Futarchy model, he proposes a prediction market (using the Wisdom of Crowds idea, implemented similarly to the Iowa election market (link), Hollywood Exchange, etc.). 

I am not sure if this model would work better than our current one – nothing like this has ever been tried before and there could easily be unforeseen consequences, emergent interactions, or other side effects of complexity.  But it is definitely worth considering, developing, and trying out. 

Mind Pops

 

A recent article on Scientific American.com talks about a cognitive phenomenon we have all experienced but may not have had a name for.

The idea is that something we were thinking about hours or days ago remains unresolved and so our unconscious keeps picking at it.  At some point, a small cue, even one we might not be aware of, triggers it into active memory and we get a “mind-pop.” 

They usually appear when we are doing something routine, boring, or otherwise takes very little of our attention.  So there is a lot of capacity left over for our brain to get back to picking at the unresolved issue.  And then all of a sudden – mind pop.

The research that the article cites suggests that “super-primers” who have mind-pops more often than the rest of us are better problem-solvers and more creative. 

I don’t think I experience these enough to be a super-primer, although the article also says that often we are unaware when they happen.  But it is good to have a name for it.