Professional liability insurance is essentially there to protect your reputation as a professional.
Things happen. There are unforeseeable circumstances that can botch even the easiest job in the most capable hands. When that happens, most contractors, consultants, professionals and business owners are more than happy to help cover the cost to the client, to injured parties and so on. That’s why the insurance policy is there.
Professional liability is there to protect specifically against claims of negligence by covering the court costs. These are the cases that we fight not because we don’t want to foot the bill, but because a reputation is on the line, and at the end of the day, all any professional really has to lean on is a trusted name. That is the foundation of success in any field. You can lose your office space, you can lose your clients, you can lose some of your best employees, and you can always rebuild from there. Once your name has been stripped of value, however, there’s not much left to do. Top talent will avoid the association with a negligent employer and clients and customers will jump ship.
These are the cases that you want to fight even at a financial loss. Even if you know that you’re not at fault for a visitor who suffered an injury on your property, it may make more sense to take responsibility than to fight it in court and spend more money in front of the judge than you would have on the doctor bill. The more comprehensive your professional liability policy, the less likely you are to have to do this when your reputation is on the line.
Of course, you can’t always have the case dismissed, so professional liability will cover the costs awarded to the plaintiff in a civil suit should you lose the case, meaning that you will be covered even where general liability coverage does not kick in. However, the real value in the policy is in allowing you to defend yourself against that civil suit in the first place, and, wherever possible, protecting your reputation within your industry.
Medical professionals rely on malpractice insurance for the same reasons, while insurers and lawyers will rely on errors and omissions, or E&O insurance. In any field where a professional mistake can prove incredibly costly or harmful, you will find some form of professional liability insurance being sold.
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HIGHLIGHTS
- The final rule required employers to create and maintain workplace injury and illness records for at least five years.
- The Trump administration signed into law a bill that invalidates the final rule.
- Employers subject to OSHA recordkeeping requirements must create injury and illness records within six months of an incident and retain these records for at least five years.
IMPORTANT DATES
December 19, 2016
OSHA’s final rule on ongoing employer recordkeeping obligations published.
April 3, 2017
The final rule was nullified.
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On April 3, 2017, President Donald Trump signed into law House Joint Resolution 83 (H.J. Res. 83). This bill nullifies a recordkeeping final rule issued by the Occupational Safety and Health Administration (OSHA). OSHA issued this final rule to amend its recordkeeping regulations and clarify that an employer’s duty to create and maintain work-related injury or illness records is an ongoing obligation. The final rule did not create any additional or new recordkeeping obligations for employers.
The clarification explained that an employer remains under an obligation to record a qualifying injury or illness throughout the five-year record storage period, even if the incident was not originally recorded during the first six months after its occurrence.
This Compliance Bulletin contains information regarding the nullified final rule and clarifies which legal requirements no longer affect employers subject to OSHA recordkeeping rules.
ACTION STEPS
The final rule is no longer valid. Therefore, employers are no longer required to comply with any of its provisions. Employers that were affected by the final rule should review their workplace injury and illness recordkeeping procedures and ensure that they are consistent with the nullification of this rule.
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OSHA Recordkeeping Requirements
OSHA requires employers to create and maintain records about workplace injuries and illnesses that meet one or more recording criteria. Specifically, employers must:
- Create and update a log of work-related injuries and illnesses (OSHA Form 300);
- Create and maintain injury and illness incident reports (OSHA Form 301); and
- Create and display an annual summary of workplace incidents (OSHA Form 300A) between Feb. 1 and April 30 of each year.
Employers must keep these records for at least five years. The five-year retention period begins on Jan. 1 of the year following the year covered by the records. For example, the five-year retention period for incident reports created on Jan. 23, 2015, June 15, 2015, and Nov. 4, 2015, begins on Jan. 1, 2016.
Penalties for Noncompliance
OSHA has the authority to issue citations and assess fines against employers that violate recordkeeping laws. However, in general, the Occupational Safety and Health Act of 1970 (OSH Act) does not allow for a citation to be issued more than six months after the occurrence of a violation.
OSHA is of the opinion that a violation exists until it is corrected. Therefore, according to OSHA, the six-month period to issue citations and assess penalties begins on the date of the last instance of the violation. For example, if a violation that started on Feb. 1 was corrected on May 15, the six-month period would begin on May 15, and OSHA would have until Nov. 15 to issue a citation.
OSHA also asserts that uncorrected violations are considered ongoing violations, and that each day of noncompliance is subject to a separate penalty.
The Final Rule
According to OSHA, adopting the final rule and amending its recordkeeping regulations was necessary because the previous regulations did not allow OSHA to enforce an employer’s incident recording obligation as an ongoing requirement. In fact, a federal circuit court has held that the former regulations did not authorize OSHA to “cite the employer for a record-making violation more than six months after the recording failure.”
The court also noted that there is a discrepancy between the OSH Act and the regulations, and that while the OSH Act allows for continuing violations of recordkeeping requirements, the specific language in the regulations does not implement this statutory authority and does not create continuing recordkeeping obligations.
The federal court interpretation of the regulations meant that employers were no longer responsible for recording or storing workplace incidents if OSHA failed to detect and penalize employers for omitted recordable incidents within the six-month period. For this reason, OSHA issued its proposed amendments on July 29, 2015.
Impact on Employers
Because the final rule has been effectively repealed, employers are no longer required to comply with any of its provisions. This means that OSHA cannot enforce an employer’s recordkeeping obligation if the employer fails to record an incident within the first six months of when the incident took place. In practical terms, this means that OSHA will have to limit the scope of its recordkeeping investigations to the previous six months, rather than the previous five years.
However, because some OSHA records span entire calendar years, employers that fail to create injury and illness records in a timely fashion risk the possibility of keeping inaccurate records or reporting erroneous information to OSHA. Therefore, employers should not interpret this legislative development as an opportunity to bypass or contravene existing OSHA recordkeeping obligations. |
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5 Tips to Improve Your Mental Health
Staying healthy is about more than paying attention to your physical body—your mental health directly influences how you think, feel, react and maintain relationships. If you don’t take steps to promote your mental health, you may find that anxiety, depression and irritability can take control of your life.
According to the National Alliance on Mental Illness, about 1 in 5 adults experience some form of mental illness in a given year, but less than half of them seek professional treatment. And, even if you haven’t been diagnosed with a mental illness, taking steps to improve your mental well-being can improve your physical health and help you maintain positive relationships.
Here are five tips you can use to help improve your mental health:
- Talk with those who care about you. Simply talking to friends, family members or co-workers can help you overcome a personal problem and stay connected.
- Take a break from digital distractions. Although smartphones and other modern technology make it easy to stay connected with others, focusing too much on digital media can make it easy to ignore close relationships and the world around you.
- Take care of your body. Your brain is still part of your physical body, so it’s important to exercise regularly, maintain a healthy diet and get enough restful sleep.
- Set realistic goals and focus on taking the first step. Many projects or errands can seem overwhelming when taken as a whole. Try planning out steps for large tasks and concentrate on what you need to do first.
- Get help when you need it. Although there can be negative social stigmas about seeking help for mental or emotional problems, mental health professionals are trained to help manage stress and mental illnesses with therapy or medication.
The Dangers of Carbon Monoxide
Carbon monoxide (CO) is a toxic gas that’s produced by the incomplete burning of any fuel, including gas, fire and wood. Many of the appliances in your home produce harmless amounts of CO. However, if these appliances aren’t properly maintained or ventilated it could lead to a hazardous buildup of CO. And, because the gas is colorless, odorless and tasteless, it can be easy to remain unaware of potentially dangerous levels of CO in your home.
Symptoms of mild CO poisoning can include flu-like symptoms, such as headaches, nausea and weakness. However, exposure to large amounts of CO for an extended period can be fatal. Follow these steps to prevent a buildup of CO in your home:
- Install CO detectors on every level of your home. Also, never assume that your home’s smoke alarms can also detect CO.
- Check your appliances every year to ensure that they’re in safe working order and have sufficient airflow around them. Appliances that emit CO include fireplaces, water heaters, portable generators, power tools, lawn equipment, and gas- or wood-burning cooking appliances.
- Never leave a car or other motorized vehicle running in an attached garage, even if the garage door is open.
- Never rely on ovens, gas grills or other appliances to heat your home.
- Contact a specialist to ensure that your chimneys, vents and flues are providing sufficient ventilation to your home.
For more information on protecting your home from CO and other dangerous gases, such as radon and natural gas leaks, contact us today at 831-661-5697.
Removing Distractions Before You Drive
Distracted driving is a serious and deadly problem. According to the National Highway Traffic Safety Administration, distracted driving leads to over 3,000 deaths and 375,000 injuries every year. Although many conversations about distracted driving focus on cellphones, the truth is that any distraction can be enough to cause a deadly accident. The following list includes some of the ways you can remove distractions and keep yourself safe on the road:
- Get plenty of rest before you drive. Studies have shown that fatigued drivers perform just as poorly as those who drive while intoxicated.
- Know where you’re going and the road conditions before you drive. Looking at a map or having to focus on the weather can take your attention off of the road and surrounding traffic.
- Secure any items in your vehicle that may roll around. You may be tempted to reach for them while you’re driving.
- Don’t use your cellphone or a hands-free device while driving. If you absolutely must contact someone, pull over to the side of the road first.
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Auto insurance is meant to protect you by covering your bills after an accident. However, the amount of compensation can vary greatly depending on the type of claim that’s made by insurance carriers and the value of your vehicle. The decision to have your vehicle repaired or declared a total loss directly impacts how much you receive.
Determining a Claim
If you’re in an accident, the at-fault driver’s insurance carrier will analyze the approximate value of your vehicle before the accident as well as the cost to repair it afterward. Typically, the pre-accident value of your vehicle is determined by finding its actual cash value. This value is found by taking the price of a similar replacement vehicle in your area and then subtracting any pre-accident depreciation, such as your vehicle’s mileage and history.
If the cost to repair your vehicle is less than its actual cash value, insurers will usually opt to compensate you for the repairs. However, if the cost is too high or if the vehicle can’t be restored to a safe condition, insurers may declare it a total loss.
Total Loss Claims
If your vehicle is declared a total loss, you’ll be compensated with the full actual cash value of your vehicle, minus any applicable policy deductible.
If the cost to re
However, if a financed or loaned vehicle is declared a total loss, the insurer will pay the remaining balance to the finance company first. Here’s a breakdown of the two most common scenarios that occur when a financed vehicle is declared a total loss:
- The actual cash value of the vehicle is greater than the remaining balance of the loan. In this scenario, the insurer pays off the loan and then gives you the amount by which the actual cash value exceeds the loan balance.
- The actual cash value of the vehicle is less than the remaining balance on the loan. In this scenario, you are responsible for the difference between the actual cash value and the remaining loan balance.
Repairs and Diminished Value Claims
Getting a check for the full cost of your vehicle’s repairs may seem like a best-case scenario. However, repairs can substantially reduce your vehicle’s value. Even if it drives better than ever after being repaired, the fact that it was in an accident will taint its history and lead to a lower price if you ever choose to sell it. However, you can file a diminished value claim against an insurance carrier to try to recover any value that’s lost as a result of repairs.
If the cost to re
Most states and insurance contracts prevent policyholders from bringing diminished value claims against their own insurers. However, if another driver is at fault for an accident and his or her insurance pays for your repairs, you may be able to use a diminished value claim to recover any lost value.
If the cost to re
Because few vehicles are appraised immediately before they’re involved in an accident, it can be hard to prove that value has been lost after they’re repaired. Here are some tips you can use before and after an accident to prepare yourself for a successful diminished value claim:
- Check third-party websites to get an approximate value for your vehicle’s make and model.
- Take your vehicle to a pre-owned dealership after an accident for an appraisal. You can then ask for a letter that shows that your vehicle’s lower-than-average value is due to its repairs or accident history.
- Keep documentation about any repairs or enhancements to your vehicle. These documents can help show a more detailed history of your vehicle when determining its value.
- Contact us at 831-661-5697 for more information about diminished value claims and to discuss the specifics of your situation.
Be Prepared
There are few things more dangerous and stressful than getting into an accident. Contact Scurich Insurance today, we can provide you with a variety of auto resources, including our infographic, “5 Things to Do if You Get in a Car Accident.”
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OVERVIEW
The U.S. Court of Appeals for the 7th Circuit has ruled that Title VII of the Civil Rights Act (Title VII) prohibits employment discrimination based on sexual orientation. The decision in Hively v. Ivy Tech, issued on April 4, 2017, makes it illegal to use an individual’s sexual orientation as a basis for employment decisions.
The ruling applies to employers with 15 or more employees in Wisconsin, Illinois and Indiana.
The decision is groundbreaking because it overturned prior cases and also conflicts with law from other federal courts. However, it aligns with the Equal Employment Opportunity Commission’s (EEOC) position. This makes review of the issue by the U.S. Supreme Court likely in the future.
ACTION STEPS
Affected employers should review their existing policies to ensure they do not allow discrimination based on sexual orientation or gender identity. Employers should also review any applicable state laws and the EEOC’s enforcement guidance to ensure their policies are compliant.
Background
Title VII is a federal law that prohibits employers with 15 or more employees from discriminating against employees and job applicants on the basis of their race, color, religion, sex or national origin. Since Title VII was enacted in 1964, several federal courts, including the 7th Circuit, have held that the law’s inclusion of the word “sex” means that its protections only extend to traditional notions of gender.
For example, the 7th Circuit’s 1984 decision in Ulane v. Eastern Airlines had held that Title VII only makes it unlawful to discriminate “against women because they are women and against men because they are men.” The U.S. Court of Appeals for the 11th Circuit (which includes Alabama, Florida and Georgia) recently issued a similar holding in its March 2017 decision in Evans v. Georgia Regional Hospital.
Although the U.S. Supreme Court has never specifically addressed whether Title VII prohibits discrimination based on sexual orientation, its decisions in other cases have established that:
- The practice of “gender stereotyping” falls within Title VII’s prohibition against sex discrimination; and
- Discrimination based on the race of a person with whom another individual associates is a form of racial discrimination under Title VII.
Relying on these and other Supreme Court decisions in its ruling in Hively v. Ivy Tech, the 7th Circuit expressly overturned all of its prior case law that had excluded sexual orientation from Title VII. Instead, the 7th Circuit held, “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” The court further specified that “it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
Hively v. Ivy Tech
In 2013, Kimberly Hively, an openly gay woman who had worked as a part-time adjunct professor, filed a Title VII discrimination charge against her former employer, Ivy Tech Community College. Hively alleged that because she was gay, Ivy Tech had rejected her for six full-time positions and refused to renew her part-time employment contract. She argued that these actions constituted unlawful discrimination based on sex under Title VII.
A district court dismissed her case based on prior federal court interpretations of Title VII’s prohibition against sex discrimination. Hively then appealed to the 7th Circuit, which ruled in her favor on April 4, 2017. Under its comparative analysis, the court concluded that Hively’s claim involved discrimination based on her failure to conform to a heterosexual female stereotype. According to the court, this made Hively’s claim “no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing.”
The 7th Circuit also compared Hively’s claims to cases in which the Supreme Court held that employers may not discriminate against an individual based on the race of his or her associates. Noting that the Supreme Court has held that this type of discrimination affects both partners in an interracial marriage, the 7th Circuit applied the same reasoning to Hively’s situation.
Considerations for Employers
While the 7th Circuit’s decision overturned the court’s prior cases to clarify how the federal law applies in the three states under its jurisdiction, two of those states (Wisconsin and Illinois), along with 20 other states in the United States, have already passed laws outlawing sexual orientation discrimination in employment. In addition, the EEOC, which is responsible for the enforcing Title VII, has taken a position that aligns with the 7th Circuit’s decision since 2015. Specifically, the EEOC already interprets and enforces Title VII’s prohibition against sex discrimination as forbidding any employment discrimination based on sexual orientation or gender identity.
Therefore, employers should be aware that the 7th Circuit’s decision does not necessarily represent a radical shift in the law. Instead, the decision merely reinforces the fact that employers may be penalized for discriminating against individuals based on sexual orientation or gender identity. More information about the EEOC’s enforcement policy is available on the EEOC’s website.
The 7th Circuit’s decision provides additional guidance for employers as well. For example, the court stated that “any discomfort, disapproval or job decision based on the fact that a complainant—woman or man— dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
Finally, employers should be aware that the 7th Circuit’s decision does not address the meaning of sex discrimination in the context of social or public services, nor in the context of employment related to a religious mission. In addition, the issue addressed in the case may undergo review by the U.S. Supreme Court in the near future. Therefore, employers should continue to watch for legal developments affecting Title VII.
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During a recent visit to Wisconsin, President Donald Trump vowed to defend American dairy farmers who’ve been affected by Canada’s trade practices. Canada’s dairy sector is protected by high tariffs and controls on domestic production to support prices that farmers receive.
Last year, Canada’s dairy farmers agreed to sell milk ingredients used for cheesemaking to Canadian processors at prices competitive with international rates. Industry groups in New Zealand, Australia, the European Union, Mexico and the United States complained the new, competitive prices undercut exports to Canada.
The U.S. dairy industry groups want Trump to urge Prime Minister Justin Trudeau to end Canada’s pricing policy that has disrupted many U.S. dairy exports. They’re also asking for a prioritization of dairy market access in North American Free Trade Agreement talks. Trump has already threatened to eliminate the trade agreement with Canada if it doesn’t change its trade policies.
Ottawa’s ambassador David MacNaughton blames U.S. producers’ problems on overproduction rather than Canadian policy. The Dairy Farmers of Canada said it was confident that Ottawa would continue to protect and defend the dairy industry.
Pace of Corn Planting is Behind
According to the U.S. Department of Agriculture’s weekly Crop Progress Report, every corn-producing state in America is behind last year’s planting pace, with the exception of Indiana.
The state lagging behind the most is Missouri, with only 17 percent of its corn crop planted as of Easter Sunday. At the same time last year, Missouri farmers had planted 53 percent of the state’s corn crop.
North Dakota, South Dakota, Michigan, Wisconsin and Ohio didn’t have planting data listed in the Crop Progress Report at the time of publication.
Planting Safety Tips
As farmers prepare for planting season, it is worth remembering the following safety tips:
- Be mindful while transporting goods on public roadways.
- Watch for children, as they’re often attracted to large, noisy equipment.
- Follow instruction labels when applying products such as pesticide, herbicide or fungicide. Consider keeping photos of the instructions on your smartphone for convenience.
- Service all farm equipment regularly.
- Store fuel away from machine sheds and other buildings.
- Get adequate amounts of sleep, and follow a healthy diet.
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