All posts tagged liability

Employee Texting Blows Holes in Your Company Communications Policy

Mature businessman with his younger team using smart phones and digital tablet inside modern office building.

If you are not aware, your employees are most likely communicating with each other and clients using texting or instant messaging.

While the immediacy of texting and instant messaging is great for business as it allows faster communications, better collaboration and more responsiveness, the downside is that your organization likely can’t track and retrieve those communications.

It becomes even harder if the communications are via instant messaging apps like Whatsapp! and Facebook’s Messenger.

As an employer, it’s important that you understand the issue and that you have clear rules for communications among employees in order to protect your company’s interests.

You’ll need a policy in place when something goes wrong and you need to track the thread of communications to see what was said or promised by whom, and when. These details can be crucial to resolving problems with clients, or if you are ever sued and your communications are subpoenaed for discovery.

Plaintiff-side lawyers in employment cases are already started demanding the production of text messages and e-mails during discovery. And if litigation ensues on an issue, you may have a duty to preserve text messages.

 

Roadblocks

There are a few issues that you need to consider, especially in light of the fact that many companies are allowing staff to use their own devices for company communications, including giving them access to the business’s e-mail system on their phone.

If your employees are exchanging texts and instant messages on company phones, the history of communications would be preserved and you would be able to access the content by asking for the phone.

But, if your employees are sending and receiving work texts and instant messages on their personal devices, the issue gets murkier, particularly if you don’t have a bring-your-own-device (BYOD) policy. Accessing messages about company business on an employee’s smartphone may raise privacy issues.

The problem especially arises in the case of wrongdoing by an employee. If they are using their phones for communications that could provide insight into their behavior, they can erase those messages before you ask to see them.

In other words, you cannot rifle through their phone without first obtaining it, meaning you can’t look at it without them knowing as you could if you looked at their e-mail on your company server.

There are also privacy issues that arise if you are trying to access an employee’s personal phone to view texts and messages.

The big issue is: how do you capture those communications? After all, it will not be done over your network, unlike your company’s e-mail system that preserves all communications which are available to you. The messages reside on the phone instead.

 

What you should do

Obviously texting and instant messaging are a potential minefield for employers who want to be able to access all company communications among employees and between your staff and clients, vendors or partner organizations.

To ensure you have a handle on it, you should set rules outlining what method of communication employees may use for business purposes.

If you don’t want texting or instant messaging of any kind for company business, that needs to be spelled out – including ramifications for breaking the rule.

If you decide to allow texting and instant messaging, your policy should be clear on what kind of communications are okay.

You will need to amend your policy related to employee communications and record retention to make sure texts and instant messages are included.

If you have a BYOD policy, at a minimum it should include allowing you to take custody of the employee’s phone for legitimate purposes like a dispute with a client, or discovery for litigation.

As you can see, it’s important that you initiate a policy on employee communications that takes into account texting and messaging.

If you haven’t done so, you should do it now as this faster method of communication is becoming the new normal, particular as Generation Y continues filtering into the workforce.

 

Venturing Abroad? Your Liability Policy May Not Cover You

travelers

There may be the occasion when you have to send executives or a team overseas for work. And depending on the destination, the risks will vary – more in some countries and less in others.

Other factors that come into play include the number and age of your staff working overseas and what type of activities they will engage in when they are on their work assignment.

First off, your current liability insurance may cover the basics if your staff are there on a short-term assignment. For example, if one of them injures someone while driving a car in the country, your liability policy would likely cover the damages.

But if you are selling your service and products there of if you have a representative office there, you may need the enhanced coverage of a foreign liability insurance policy.

According to International Risk Management Institute, foreign liability insurance is:

“A specialty policy for an insured’s liability for foreign operations arising out of a permanent branch office, manufacturing facility, or other operation located in another country. The commercial general liability (CGL) policy provides coverage for incidental exposures – for example, when an executive (or group of employees)… occasionally travels overseas for business trips. For permanent operations in foreign countries, a separate foreign liability policy is required.”

 

Why purchase foreign general liability coverage

Your existing corporate liability plan may not cover you for legal expenses and lawsuits brought in overseas courts. Travel to foreign countries brings with it a number of challenges, including corrupt officials, crime, and unfamiliar laws, languages and customs.

Organizations from the U.S. have no protection if they are taken to international court, so protect yours with a good foreign liability plan.

 

 

Who needs the coverage?

You may want to consider foreign liability insurance if you:

  • Have employees or volunteers who travel outside the U.S.
  • Own or lease vehicles outside the U.S./Canada.
  • Export goods or services.
  • Have or transport property outside the U.S. or Canada, including at foreign trade shows.
  • Outsource work to subcontractors who are domiciled outside the U.S. and Canada.
  • Own or operate locations, such as sales offices or call centers, outside the U.S. and Canada.
  • Station American workers at foreign offices and/or employ third-country or local nationals.

 

What is covered in a foreign liability policy?

Such policies provide coverage for:

  • Legal expenses for lawsuits brought against your organization in overseas courts.
  • Criminal charges brought against your staff by foreign officials.
  • General liability brought against your company for injuries or damages resulting from the use of your product or service.
  • Emergency assistance services.
  • Automobile liability.
  • Directors & officers liability.
  • Accident and health.
  • Fiduciary liability.
  • Excess liability.
  • Professional errors and omissions liability.
  • Environmental impairment liability.
  • Aircraft/watercraft liability.
  • Patent infringement.

 

Protect Your Traveling Employees Through Planning, Training

businessman at airport

If you have employees who travel as part of their job, your business has a duty to safeguard them when on the road.

When on the road both domestically and abroad, accidents and other unforeseen events can occur that can put your employee at risk … from a bush crash in a Madrid to coming down with severe gastrointestinal pains in Mumbai.

Meanwhile, political risk is increasing daily, and so is the threat of terrorism, as evidenced by the spate of incidents in Paris, Brussels and San Bernardino.

The duty of care is on the part of the employer that sends its workers on business trips domestically and overseas. They need to ensure that their employees are prepared, trained and safe for these travel assignments.

You can follow these tips to protect your road warriors, which were outlined in a white paper on the subject by Lisbeth Claus, professor of global human resources at Willamette University’s Atkinson Graduate School of Management in Portland, Oregon:

 

Implement a travel management plan – If you are sending an employee to a new destination, particularly one that may be considered high risk, you should consider giving them a security briefing before they leave. They should be given information on the dangers that they may face in a particular location – from pickpockets and muggings in some large U.S. cities, to kidnapping in South America by a hood masquerading as a taxi driver.

The plan should cover the following areas:

  • Awareness of potential dangers – The employee should be given information on the dangers of the location that he or she is traveling to. Risks vary from location to location, including terrorism or food-borne illnesses.
  • Don’t have a routine – This is especially true in countries where crime and kidnappings are rampant. It’s recommended by security experts that employees on temporary or long-term assignments abroad don’t do the same thing every day. They can take a different route to their work site every day, visit different lunch places and take a taxi one day and a bus another.
  • Don’t draw attention to yourself – Advise your traveling employees to keep a low profile. Don’t wear expensive jewelry or watches or any items with American flags on them. It’s best not to stand out, and they should try to dress like others do in the area to the best extent possible.
  • Stay in touch – You should require that employees traveling in new places check in with a designated company contact on a daily basis, preferably in the morning and upon returning to the hotel in the evening.
  • Think security – There are many simple things a traveling employee can do when on the road to increase their protection, from not straying off main streets at night or in unknown parts of town, to using the deadbolt and swing lock on their hotel doors at all times.

 

Essentially, you need to:

  • Assess risks – Understand dangers at locations where employees will be assigned or will visit most frequently. Analyze how job functions expose workers to risks.
  • Plan – Determine if your organization is meeting its duty-of-care obligations. Create policies and find resources necessary to meet these obligations.
  • Train – Educate employees about travel dangers and how to react to emergencies while abroad.
  • Track – Know where each employee will be at any given time.
  • Assist – Establish a mechanism to communicate with employees at any time and to provide assistance as needed.

 

Insurance

Even if you take precautions, there is still a chance that something can go wrong. That’s why there is kidnapping, ransom and extortion insurance for traveling workers.

You can also purchase a security evacuation and pandemic disease rider to attach to that type of policy.

Other available coverages include:

  • Foreign voluntary workers’ compensation insurance
  • Global medical assistance services

 

Finally, many insurance companies and brokers have also created country and city risk ratings, which are available on line. They are worth a look if you have traveling workers.

 

Vehicle Crashes on and off the Job Cost Employers Dearly

crash

The costs for businesses when their employees are involved in car accidents on and off the job are staggering, at $47.4 billion a year, according to a new study.

The “Cost of Vehicle Crashes to Employers – 2015” study, by the Network for Employers for Traffic Safety, looked at how much car crashes cost businesses in terms of workplace disruption and liability costs. While the costs to companies when their workers are in on-the-job automobile accidents are easily measured, the costs to businesses when their employees miss work after accidents while off the job are almost as steep.

Employers end up paying in some way for injuries to their employees on and off the job, and to their dependents. They also pay for injuries caused to third parties who are injured when an employee is involved in an accident while driving on the job.

In 2013, motor vehicle crashes killed 1,620 people and injured an estimated 293,000 while they were working, the study found. More than half of the injuries forced people to miss work.

 

The report, funded by the U.S. Department of Transportation, found that:

  • Costs totaling $20.6 billion were due to property damage, workplace disruption and liability costs.
  • Another $26.8 billion in costs to employers were due to health-related fringe benefits, including sick leave, health insurance and insurance covering work losses. They cover contributions to workers’ compensation

insurance, health insurance, sick leave, Social Security disability insurance, life insurance, and private disability insurance, as well as insurance administration and overhead.

  • Of those costs, fringe benefit costs of off-the-job crash injuries were $21.8 billion, accounting for 81% of the health-related fringe benefit bill.
  • The fringe benefits payments were split roughly equally between health care expenses and wage replacement, such as sick leave and life insurance, according to the report.
  • On- and off-the-job motor vehicle crashes involving employees or their dependents cost employers more than 1.6 million lost work days in 2013, and 90% happened outside of work, according to the analysis.

 

The top four causes of the accidents were speeding, distracted driving, driving under the influence of alcohol, and not wearing a seat belt.

 

What can you do?

The U.S. Centers for Disease Control has the following tips for employers:

  • If you have a fleet, implement a fleet driver safety program and maintain complete and accurate records of workers’ driving performance.
  • Check driving records of prospective employees and conduct periodic rechecks after hiring.
  • Ask your workers to periodically provide documentation of their insurance and to report any suspensions, revocations and convictions for vehicle-related offenses.
  • Establish schedules that allow drivers to obey speed limits and follow hours-of-service regulations where they apply.
  • Require newly hired workers to attend performance-based defensive driving courses, with mandatory refresher training at regular intervals.
  • Implement a driver safety program that emphasizes the link between driver safety at work and driver safety at home. Safe driving in the workplace benefits the worker’s family by reducing the risk of fatality or disabling injury. In addition, lessons learned on the job can increase workers’ awareness of the importance of safe driving outside of work hours.
  • In your training emphasize the need for wearing a seatbelt at all times.
  • Have a zero-tolerance policy for talking on the phone and texting while driving, both of which are already against the law in most states. Require that any employee who needs to make a call, pull over first when it’s safe to do so, regardless of whether they have a hands-free unit.

 

 

EEOC’s Data Collection Proposal Could Spike Litigation against Employers

equal pay

A new proposal by the U.S. Equal Employment Opportunity Commission to collect pay data from all organizations with more than 100 employees would likely open up employers to further litigation and regulatory actions.

The EEOC says it wants to use this data to identify areas of possible pay discrimination. But this fresh trove of data would likely lead to litigation by employees who feel they are underpaid compared to their colleagues, and to administrative actions, according to employment law attorneys.

The commission already uses so-called EEO-1 reports to collect demographic data about employers’ workers, such as race, ethnicity, sex, and job category of employees. Under the proposal, starting in September 2017 it would also gather data on pay ranges and hours worked.

The EEOC and the Department of Labor would use this data to identify pay disparities across industries and occupations, and strengthen federal efforts to combat pay discrimination.

The agencies would also use the information to assess complaints of discrimination, focus agency investigations, and identify pay disparities that it could probe more deeply.

Under the proposed regulations, employers with more than 100 workers and who file the EEO-1 forms would be require to include on the revised form:

  • Total W-2 earnings.
  • Aggregate W-2 data in 12 pay bands (pay ranges) for the 10 EEO-1 job categories. Employers will count and report the number of employees in each pay band.
  • The total number of hours worked by the employees in each pay band. The EEOC intends to use this data to analyze pay differences while also taking into account the differences in hours worked, as well as accounting for part-time work. (Note: The EEOC made a point of saying it doesn’t want data about specific employees, and that the data will be kept confidential.)

 

EEOC investigators would analyze W-2 pay distribution within single organizations and compare that data to aggregate industry or metropolitan area data.

 

Employers react

Already there has been pushback from employer groups about the administrative burden this would put on businesses. And some have voiced concern that data could be misconstrued as it fails to take into account the subjective factors influencing pay, such as experience and skill.

According to a new report in Bloomberg BNA, the EEOC’s assurance that it will keep employers’ pay data confidential doesn’t necessarily mean it will. It interviewed one labor law attorney who said that the data could be subject to Freedom of Information Act requests.

There are also “serious questions” about relying on the W-2 data, as pay could be influenced by shift differentials, an employee’s willingness to work overtime and other factors, Greg Keating of Boston-based Choate, Hall & Stewart L.L.P. said.

An employee’s W-2 form “doesn’t tell the whole story by any means,” he said, adding that pay differences within pay bands also can occur for many reasons that have nothing to do with gender or race bias.

So, the data on which the EEOC intends to rely is “quite suspect” as an indicator of any unlawful practice, Keating said.

Another attorney, Stanley Pitts, a partner with Honigman Miller Schwartz & Cohn L.L.P. in Detroit, told Business Insurance magazine that the EEOC is most interested in probing higher-paid categories and “trying to look at the ‘glass ceilings’ for gender or pay discrimination.”

 

The takeaway

At this point, it’s unclear how the EEOC might use this data, but employers can nonetheless take some preemptive action.

The law firm of Thompson Coburn LLC in a recent blog recommends that employers with more than 100 workers examine their payrolls to identify any inadvertent pay differences and to compare the pay rates of similarly situated employees when changing workers’ salaries.

The law firm also recommends that employers that currently must submit EEO-1 reports conduct self-audits of their payrolls to identify any areas where they could be vulnerable to litigation for unequal pay practices.

The public has until April 1 to submit comments on the proposed rules.

 

 

How to Reduce Your Liability during Company Holiday Party

If you’re throwing your staff a Christmas party this year, don’t forget that holiday soirees also mean increased liability for workers’ comp, harassment and third-party injuries.

For example, did you know that if one of your staff is injured at your holiday party it could trigger a workers’ comp claim, since it could be considered “within the course and scope of employment”?

Workers’ comp and employment law attorneys have different opinions about this, but the overriding consensus is that some of it could become a workers’ comp claim if:

  • Attendance is mandatory, regardless of whether it’s expressed or implied.
  • The party is held during working hours.
  • The event is held on your premises.
  • Employees are recognized with rewards, or if you give out bonuses at the event.
  • The event includes vendors or customers.

 

The rules for this can vary depending on the state and how broadly the courts define “scope of employment.”

For example, in Minnesota three years ago, an employee had been out on medical leave for a non-work-related injury, and she went to the company’s annual dinner after she received an invitation and the promise of a turkey.

After she had collected her turkey, however, she slipped, fell and injured herself in the parking lot. The state supreme court found that the employer had directed the employee to come to the premises to obtain the turkey, which the court noted was a form of bonus compensation.

In California, all company-sponsored events fall within the course and scope of employment, because they benefit the employer by improving employee morale and furthering employer-employee relations.

But the biggest issue is liability, and a case in 2013 should make you think twice before serving alcohol – or even allowing your staff to bring their own booze.

In the case of Purton vs. Marriott International, Inc. the California Supreme Court found the employer, hotel chain Marriott, liable for the actions of an employee who took his own liquor to a company party, drove home drunk and killed another motorist.

The court found that as long as the proximate cause (intoxication) was within the course and scope of employment, the employer could be liable.

Here are 10 tips to help ensure that cheer does not turn into a legal nightmare:

 

  1. Attendance must be voluntary. To make sure that your employees understand this, clearly state it in the invitation and any announcements you may post about the party in your workplace.
  2. Hold your event after working hours and at a venue other than your office. This reduces the likelihood the party will be perceived as work related.
  3. Also, don’t try to coax employees to come by implying that attendance can help them advance their careers or standing in the office, or that not coming would be viewed by other staff as the employee not being a team player.
  4. Don’t give out awards, bonuses or any types of recognition that would indicate that they are there for business reasons.
  5. Strongly consider NOT inviting vendors, customers or others with whom your company conducts business.
  6. Tell your employees that they can bring their spouses and significant others.
  7. Remind employees that normal workplace standards of conduct are to be respected. Remember, when alcohol is served at parties, it may reduce inhibitions and can lead to sexual harassment or discrimination claims.
    If you do receive a complaint about discrimination or harassment, don’t shrug it off. Take it seriously and conduct a proper investigation and interview the employee complaining, the one who is accused and any witnesses.
  8. If you want to truly reduce your risk, you should limit or not serve alcohol. Whatever you do, don’t have an open bar. Close the bar at least one hour before the end of the party. Also, hire a professional bartender who knows when to cut people off.
    Arrange for no-cost transportation for any employee who should not drive home. If you do plan to have alcohol, also serve plenty of food.
  9. Tell employees not to post pictures from or comments about your company party on social media without a policy in place.
  10. Discuss your exposure with us to make sure that you are properly covered for any liabilities that may arise out of the function. Call us! We are always here to help.

 

company christmas party

Think like a risk manager to reduce your insurance costs

All large corporations and national businesses have someone in charge of risk management, if not a whole department.

But hiring a risk specialist or dedicating a number of employees to that kind of work is typically too expensive for most small and mid-sized companies. So, this risk mitigation typically is left to the business owner or the duties are spread among senior managers.

One way that you can reduce the risk to your finances is to purchase appropriate insurance coverage, which can sometimes be expensive. However, if you focus on managing your company’s risks, you can do more than solely reducing the risk of accidents (and having to file claims).

Insurance companies like policyholders that try to manage their risks, and they reward them by reducing their premiums.

You too can reduce the cost of your insurance if you start thinking like a risk manager. In this article we provide you with some tips to do just that.

How far you want to go depends on how much time you want to spend honing your risk management skills. The more you learn, the better you will have a broad perspective of the various risks that your organization faces.

To start thinking like a risk manager, it helps to organize your risks into categories:

 

  • Human resources – Employees are your biggest asset, but they can also be one of your biggest liabilities. Businesses are regularly sued by their employees and job applicants for a number of alleged transgressions, such as discrimination, retaliation and hostile work environments. Some people are serial lawsuit filers.
    To reduce the chances of this, you need to screen job applicants and document everything, including candidate searches, interviews, hires, reviews, complaints and behavior or performance issues of your employees, especially if you have to terminate someone.
    Also, promote a culture safety with regular training, and strive to keep your workers happy, motivated and feeling like they have are vested in your enterprise.
  • Property and assets – Fire and theft devastate thousands of American businesses every year. Protect your property with fire and burglar alarms, and take precautions against damage from severe weather.
    Make sure that you keep your company’s data safe (especially any personally identifiable information on your staff and customers, and credit card information).
    Erect firewalls, install virus and malware protection and store vital company data on- and offsite. Develop an emergency response plan in case your data is compromised or if your network fails.
  • Income – This includes any risks that affect your company’s finances and income stream. Keep thorough records and meticulously quantify your costs of goods sold, gross and net income.
    Monitor your accounting and ensure that a chosen few of your staff have access to your accounts and check books.
    Protect your business income by having a solid supply-chain management plan in place, with connections made with backup suppliers should one of your current suppliers suddenly be unable to provide you with product.
    Have a contingency management plan in place to keep your business operating if disruptions occur due to equipment failure, a breakdown in transportation networks or natural disaster.
  • Liability – Every year there seems to be a new and novel lawsuit threat that companies never knew existed. Make sure that you do all you can to reduce the potential of liabilities to third parties, including vendors and customers and the public at large.
    Identify any hazards on your premises, and train your employees to drive carefully and not endanger your customers or the public.
    Keep your workplace safe, as well. Engage in proactive safety training and a program to identify potential hazards to your staff. Keeping your staff safe and reducing the risk of injuries keeps your workers healthy and safe – and your workers’ comp premium low.
    Have a social media policy with clear do’s and don’ts.

 

While there is much more that you can do, these tips are a good place to start in thinking like a risk manager and reducing the chances of your firm having to pay more than it should, or being sued.
Finally, consult with us as we can help you identify the biggest risks that your organization faces and what you can do to reduce those risks to a comfortable level.

Remember, insurance is there to pay for many of these issues, but to keep your rates as low as they can be and reduce the potential of fallout, put on your risk manager cap and get to work.

 

thinking-cap

As DOJ Sets Sights on Executives, Your Firm Needs Protection

The Department of Justice is stepping up its efforts to prosecute individual company executives, which could see more directors and officers facing jail time and individual financial penalties.

The department issued a memo (obtained by the New York Times) to its prosecutors outlining best practices and recommending that allegedly responsible individuals should be the focus of investigations at the outset, and that they only consider a company to have cooperated in an investigation if it turns over information about the actions of individuals at the firm.

This type of prosecution can cost the executives involved and the company hundreds of thousands of dollars in defense costs and fees, potentially bankrupting both the individuals targeted and the business.

The latest effort comes as the DOJ has been criticized for not doing enough to hold company executives accountable and seeking criminal prosecutions against them, especially in the wake of the financial crisis. The move appears to be part of a larger push by the department to go after white-collar criminals.

With the stakes increasing, it’s more important than ever that you protect your executives’ and company’s assets by securing a directors and officers (D&O) liability policy. A D&O policy provides overage for defense costs and damages (awards and settlements) arising out of wrongful-act allegations and lawsuits brought against an organization’s board of directors and/or officers.

Coverage under a D&O policy typically has major coverage parts, or “sides”:

  • Side A covers the director or officer in circumstances when the company is not legally permitted to provide indemnification.
  • Side B covers the company for indemnifying the relevant director or officer when the company is legally permitted to provide indemnification.
  • Side C provides some limited coverage for the company itself.

 

But there are times when coverage questions may arise due to various circumstances, or times when costs exceed the D&O coverage amount.

 

Some issues that could arise include:

  • A company refusing to indemnify certain directors or officers because of concerns they may have done something wrong, or
  • A company exhausting its entire D&O policy and then refusing to pay a director’s or officer’s legal fees.

 

There is an additional policy – an excess “Side A Differences in Conditions” policy – that would fill the void in these circumstances. This policy will advance defense costs for directors and officers in the event the company doesn’t pay an otherwise covered claim for any reason.

These policies have fewer exclusions than normal D&O policies. They can often be triggered even when the underlying D&O policy is not triggered due to an exclusion. Also, there is usually no retention or deductible on Side A Differences in Conditions policies.

 

Top five reasons you need D&O

According to the “2012 Towers Watson Directors and Officers Liability Survey”, the main reasons that organizations purchase D&O coverage are:

  1. Directors and officers can be held personally liable for claims; organizations increasingly consider personal liability coverage as one of the most important aspects of their D&O program.
  2. D&O liability claims related to regulatory actions are increasing for all types of organizations, representing 23% of claims in 2012.
  3. Directors and officers increasingly desire additional assurances beyond corporate indemnification. In fact, 43% desire added protection in the event their company becomes bankrupt and/or insolvent.
  4. Directors and officers and their employers are susceptible to a wide range of claimants, including shareholders, competitors, customers, employees and government entities.
  5. D&O claims are increasingly common for private companies, public companies and nonprofits; 36% of all organizations reported claims in the last 10 years.

dando

Business Umbrella, Excess Liability Insurance Essential as Costs Rise

As a responsible business owner you no doubt make sure that you are properly insured for any liabilities resulting from damage to other parties.

Imagine some of the following scenarios:

  • What if a visitor trips and falls at your business, breaking a leg and is unable to work for a few months while they recover?
  • What if a customer suspected of stealing later proves their innocence and sues for defamation of character?
  • What if one of your employees, driving a company truck, rams into a passenger car and severely injures some of the occupants?

 

The costs of a large financial settlement could surpass the primary liability limits of your existing insurance policies, leaving your business responsible for the rest of those costs. And a high-cost accident or lawsuit could potentially put your company out of business.

To avoid any of these scenarios, it’s wise to carry a commercial umbrella policy, which will essentially pick up where your primary insurance leaves off – or runs out.

All of your policies have limits. Once those limits have been breached, the other party can sue and go after your firm’s assets. Breaching those limits is getting easier due to the increasing prices of vehicles as well as health care costs, should the other party suffer physical injuries.

An umbrella policy will also cover you for liability for which there is no primary insurance, or when a primary policy includes an exclusion that the umbrella policy doesn’t.

An umbrella policy will kick after limits are breached for:

  • Commercial general liability (bodily injury, property damage, personal injury, defense costs and attorney fees, limited contractual liability)
  • Business owners liability
  • Business auto liability
  • Employers liability

 

Most umbrella insurers require you to purchase primary insurance coverage before selling you an umbrella policy. For example, general liability insurance, auto liability insurance, workers’ compensation or employers liability insurance.

Umbrella policy limits may range from $1 million to $10 million, depending on the policy and the insurance company underwriting the policy.

 

 

Excess liability

For companies that have potentially higher liabilities, an excess liability policy can be secured that kicks in after the umbrella policy is breached.

This coverage provides extra liability limits over an umbrella policy, and typically follows the terms of the first underlying insurance policy.

Higher limits may be necessary for businesses with high loss potential, high profile, sizable sales, numerous assets, large auto fleets, worldwide presence, and/or significant public exposure.

umbrellayai

Telecommuting Not Required for ADA ‘Accommodation’

A federal appeals court recently ruled that telecommuting is a reasonable accommodation for disabled workers, but employers do not have to honor such requests if they have business or strategic reasons for not permitting such arrangements.

The April 2015 decision by the U.S. Sixth Circuit Court of Appeals in the EEOC v. Ford Motor Co. is an excellent illustration of how employers can deal with requests for telecommuting as part of your obligation to accommodate disabled workers. If you are amenable to telecommuting and an employee requests it, you have an easy situation, but if you do not want employees telecommuting for strategic or business reasons, you will need to make sure that you have your ducks in a row.

The dispute in the case centered on Ford Motor Co.’s rejection of an employee’s request to telecommute as an accommodation for her irritable bowel syndrome condition.

The request contemplated the employee telecommuting up to four days each week. Although the Americans with Disabilities Act (ADA) may require job restructuring or modified work schedules as a “reasonable accommodation” for an otherwise qualified disabled employee, many jobs require some collaboration, personal interaction and supervision that is not feasible if someone works from home.

Through the years, Ford had made numerous attempts to reasonably accommodate the employee, a resale buyer for the company, but none of these attempts, which included trials of telecommuting, were successful. Ultimately, the employee asked Ford to be permitted to work from home up to four days per week.

The nature of her job, however, required teamwork, meetings with suppliers and stampers and on-site availability to participate in face-to-face interactions. These factors in the Court’s opinion all necessitated Ms. Harris to achieve regular and predictable on-site attendance.

Ford denied the employee’s request, saying that physical attendance in the workplace was an essential function of her job. The employee filed a complaint with the Equal Employment Opportunity Commission alleging that Ford had violated her rights to accommodation under the ADA. The EEOC brought suit on her behalf after she was fired.

The court, however, determined that Ford did not violate the ADA by rejecting the employee’s request to telecommute, because “regular and predictable attendance” was an essential function of her job. Accordingly, the Court upheld her termination from employment.

 

The lesson

Ford was successful in this case largely because of it hade made serious efforts to reasonably accommodate her before finally concluding that there was nothing else to try.

But this ruling does not mean that employers can uniformly reject telecommuting requests as reasonable accommodations. Instead, an employer should still carefully analyze the employee’s job to determine whether it, or another vacant job for which the employee is qualified, can be done on a telecommuting basis.

If not, the employer should consider whether other reasonable accommodations would permit the employee to successfully perform the essential functions of the job.

Here are the main takeaways:

  • Telecommuting may be a “reasonable accommodation” under the ADA.
  • Employers can require actual physical attendance at work if it is legitimately deemed an essential function of a job.
  • Employers should document that regular physical attendance is an essential job function and include it in any written job description.
  • Employers should be consistent in the application of any telecommuting decisions and document such decisions.

 

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